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  • Double Recovery in Helicopter Injury Case?

    If you do a favor for your boss outside of work and are injured, can you still sue for workers’ compensation benefits? This is a complex question dependent on the facts of a case. Workers’ compensation is only available for injuries suffered during employment. If the court finds that the favor was outside the scope of employment, an injured employee may only recover tort damages. In the following case, the appellate court reversed a finding of workers’ compensation in favor of tort liability. In this case, the injured worker fought against a reduction of award to offset the workers’ compensation benefits already paid to the plaintiff. 

    LaFayette truck driver Tommie Hebert was employed by Industrial Helicopters, Inc. as a commercial fuel transporter for nearly 30 years. Industrial Helicopters primarily served as an aerial herbicide application company. The owner of Industrial Helicopters also owned Game Management, Inc. Game Management leased hunting land and operated deer tracking and capturing surveys. His boss’s son asked Herbert to work as a deer netter on a Game Management helicopter survey. During the survey, Herbert fell from the helicopter to the ground and was seriously injured. The status of workers’ compensation became muddled because of the dual businesses. 

    Hebert was originally granted workers’ compensation benefits because he was found to be within the scope of his job at Industrial Helicopters when he fell. On appeal, Hebert was conversely found to be outside the scope of employment during the deer netting. Industrial Helicopters was only liable for tort damages based on this finding. Hebert additionally motioned for his court costs to be paid by the defendant. 

    Employers that pay out workers’ compensation benefits and are also found liable for tort damages are entitled to an offset of costs. Gagnard v. Baldrige. A credit may be given towards tort damages to the extent that workers’ compensation has been paid. Louisiana legal principles bar double recovery on a single claim. Albert v. Farm Bureau Ins. Co. Court costs assessed by lower courts may only be overturned upon a finding of abuse of discretion. Trahan v. Plessala. 

    Industrial Helicopters had already paid the workers’ compensation damages while the appeal was being litigated. The Court, therefore, held that the defendant was entitled to a full credit to offset the assessed tort damages. Herbet had already recovered workers’ compensation damages equal to the tort damages found on appeal and was therefore barred from double recovery.  The Court also found that the lower court had abused its discretion in ruling Herbet responsible for his court costs. Therefore, Herbert had prevailed on the tort claim and should not have been required to pay his court fees.

    This case may initially read as an injustice to Hebert, a long-time employee severely injured while doing a favor for his boss’s son. However, in this case, the complicated legal proceedings obscure that Hebert was fully compensated for his injury through workers’ benefits. General notions of judicial fairness implore courts to balance the interests of all parties, even in favor of a corporation over an individual. Though Hebert did not receive his sought double recovery, he was successful on his court costs claims and likely received just compensation for his injuries. 

    Additional Sources: HEBERT V. RICHARD

    Written by Berniard Law Firm Blog Writer: Corrinne Yoder-Mulkey

    Additional Berniard Law Firm Articles on Workers’ Compensation: When Can I File a Tort Lawsuit against my Employer if I am Hurt at Work in Louisiana?

  • Patient’s Early Post-Operative Dismissal Causes Medical Expert Dilemma

    Medical malpractice claims are not always limited to instances during treatment or surgery and may, as one young patient argued, include failures that occur afterward or post-operatively. 

    Justin Thomas, an eighteen-year-old, aspiring armed serviceman, underwent a right shoulder arthroscopy at Lafayette Surgicare to repair his repeated rotator cuff dislocations. The surgery was considered an outpatient procedure that Thomas’s surgeon, Dr. Otis Drew (Dr. Drew), performed beginning just before 9:00 AM on July 1, 2013, and completed around 11:00 AM the same day. Before and after the surgery, Thomas was given significant anesthesia and medication. By 1:50 PM that afternoon, Thomas was discharged into the care of his parents. Less than six hours later, after Thomas’s mom gave him a prescribed dose of oxycodone, he fell unconscious and was unresponsive to Narcan, so an ambulance arrived at Thomas’ parents’ home taking him back to the hospital, where he lay in a coma for five days. As a result, Thomas experienced brain damage and lost the use of the left side of his body. 

    In May 2016, a medical review board determined that despite Thomas’s injury, the medical staff, including Dr. Drew, met the required standard of care. Nevertheless, three months later, Thomas filed a lawsuit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. His complaint alleged that he was released too early post-operatively and prescribed extensive anesthesia and heavy narcotic medication that induced him into a coma. In response, Dr. Drew filed a summary judgment motion that the trial court, Fifteenth Judicial District Court Parish of Lafayette, granted, dismissing Thomas’s claims. Thomas appealed to Louisiana’s Third Circuit Court of Appeals (Third Circuit), arguing that the trial court erred in finding that his expert affidavit was inadmissible and did not create a genuine issue of material fact.

    On appeal, the Third Circuit first considered Thomas’s argument that Dr. Drew did not follow the necessary procedures to object to the admissibility of his expert’s opinion at the trial court. In his motion for summary judgment, Dr. Drew argued that Thomas did not offer expert testimony that Dr. Drew’s alleged breach caused Thomas’s injuries. Previously, however, Thomas had presented an affidavit by Dr. Albert Gros (Dr. Gros), an anesthesiologist and pain management physician, to oppose Dr. Drew’s motion for summary judgment. Dr. Gros’s affidavit stated in part that Thomas “was not monitored long enough before discharge from the Recovery Room at Lafayette Surgery Center.” 

    At the Third Circuit, Thomas also argued that to challenge the admissibility of Dr. Gros’s affidavit properly, Dr. Drew had to follow the rules outlined in La. Code. Civ.P. art. 1425. Additionally, Thomas maintained that Dr. Drew did not make a “Daubert challenge,” which is a specific motion made to the trial court to exclude testimony from an unqualified expert. This challenge comes from a United States Supreme Court opinion, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) that identified several factors in determining the legitimacy of the challenge, including: (1) whether the asserted theory or technique at issue has been tested; (2) whether the theory or technique has underwent peer review and publication; (3) whether the theory or technique is known or has a potential error rate; (4) whether there was in existence and practice certain standards controlling operation of the theory or technique; and (5) whether the theory or technique has widespread acceptance within its relevant scientific community. 

    Thomas argued on appeal that the trial court did not consider the Daubert factors or conduct a hearing before it excluded his expert’s testimony. The Third Circuit disagreed with Thomas’s argument, given that the trial court considered Dr. Gros’s qualifications after a lengthy discussion of Daubert’s applicability by Dr. Drew’s attorney. Accordingly, the Third Circuit concluded that contrary to Thomas’s assertion, the trial court did conduct a Daubert analysis, and Dr. Drew did follow all the proper procedures for challenging the admissibility of Dr. Gros’s affidavit.

    Lastly, Thomas attempted to convince the Third Circuit that the fact that his expert, Dr. Gros, was not an orthopedic surgeon does not preclude him from testifying to the issue of whether Thomas was released too soon post-operatively. The Third Circuit agreed with Thomas that an expert in orthopedic surgery was not necessary but nevertheless found that the affidavit provided by Dr. Gros did not establish that Dr. Drew breached the standard of care by releasing Thomas too early following his surgery. Strikingly for the Third Court, Dr. Gros’s affidavit never mentioned Dr. Drew, never stated what standard of care Dr. Drew owed Thomas post-operatively, and never included any indication that Dr. Drew breached any standard of care owed to Thomas. Instead, Dr. Gros’s affidavit makes conclusory statements, which the Third Circuit ruled that conclusory affidavits without supporting underlying facts are legally insufficient to defeat a motion for summary judgment.

    As a result, the Third Circuit affirmed the trial court’s decision to grant Dr. Drew’s motion for summary judgment and to dismiss all of Thomas’s claims. The medical review board’s determination that Dr. Drew did not breach the standard of care owed to Thomas carried more weight before a court than Dr. Gros’s conclusory affidavit about Thomas’s post-operative care. One of the larger takeaways from this case is that future medical malpractice litigants will be best served if their expert affidavits are not conclusory. Moreover, litigants in these cases are always better equipped with good attorneys who know and follow the proper procedures.

    Additional Sources: JUSTIN THOMAS VERSUS OTIS RASHAD DREW, M.D., ET AL. 

    Written by Berniard Law Firm Blog Writer: Gina McKlveen

    Other Berniard Law Firm Articles on Medical Experts: Unreliable Medical Expert Methodology Equals No Case Under Daubert in Chalmette Refinery Case,  Court Fails to Use Proper Procedure to Disqualify Medical Expert Witness, Case Proceeds for Widow in Jefferson Parish

  • What amount of force is allowed when restraining an inmate?

    The burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

    George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston. 

    Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively. 

    The case notes stated Preston entered the cell after Lieutenant Hicks instructed him not to and that he allegedly attempted to hit the inmate. Two inmates provided sworn statements which recalled Preston screaming as Hicks twisted his arm. 

    The court agreed the use of force was necessary to restrain Preston from taking further actions in the cell. In a disciplinary report, Preston admitted to his guilt and agreed Hick’s use of force was used in good faith. The district court dismissed Preston’s complaint under 28 U.S.C. § 1915(e)(2)(B) & 1915A. Under 28 U.S.C. § 1915(e)(2)(B) & 1915A and Federal Rule of Civil Procedure 12(b)(6A), a claimant must present an issue in which they will be able to receive relief.

    Preston then filed an administrative complaint; however, the court denied it. The denial was due to x-ray evidence which showed Preston’s shoulder was not dislocated. Preston appealed. When analyzing a claim for excessive force under the Eighth Amendment, the focus is whether the force applied was in good faith. (Hudson v. McMillian). The claim also must meet four requirements: (1) describe the degree of harm, (2) the reason for the force, (3) the correlation between the need and the force applied, (4) reasonableness of the expected danger, and (5) ‘any efforts made to reduce a forceful interaction. (Whitley v. Albers). 

    Preston agreed he ran into another inmate’s cell and ignored verbal commands to stop, which caused Sergeant Ford to call for help. Although Sergeant Augustine restrained Preston’s left arm, Preston’s screams and concerns were guided toward Lieutenant Hicks as he feared his right arm would break. While Sergeant Augustine held back Preston’s left arm, he only caused it to become strained, not injured. The Appeals Court reasoned Lieutenant Hicks’s action of pushing him to the floor, elbowing him repeatedly in his face, and twisting his arm was excessive. 

    The appeals court held Preston alleged sufficient facts against Lieutenant Hicks. The appeals court reversed the dismissal of the claim against Lieutenant Hicks and remanded the case. However, the appeals court dismissed the claims against Lieutenant Bowie, Sergeant Ford, Dauzat, and Augustine. 

    This case serves as a reminder of the rigorous standards required to prove excessive force and violation of constitutional rights. While the court dismissed claims against certain correctional officers, the reversal of the dismissal against Lieutenant Hicks demonstrates the court’s recognition of sufficient evidence supporting Preston’s allegations. As the legal process unfolds, it becomes evident that meeting the elements and requirements of a claim is essential for claimants to seek justice and hold responsible parties accountable.

    Additional Sources: George Andrew Preston v. Bobby Hicks; Lieutenant W. Bowie. Sergeant Augustine, Sergeant Dauzat; Sergeant Ford

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on frivolous claims: Can a Pro Se litigant Proceed In Forma Pauperis?

  • Fifth Circuit Court of Appeal Rules on Reasonableness of Forum Selection Clause

    Most of us get into contracts, not fully understanding all the ins and outs of what we are signing. Similarly, the multiple provisions that can slither their way into contracts can include things like forum selection clauses which can be easily overlooked. But when a lawsuit erupts, can you argue a provision isn’t applicable? The United States Court of Appeals for the Fifth Circuit addresses this question in the following case.

    Al Copeland Investments, L.L.C. owned a food manufacturing facility in Louisiana. In October and December of 2015, there was some property damage to the facility, and they submitted a reimbursement claim under an insurance policy. Their insurance was held with First Specialty Insurance Corporation (“First Specialty”). They denied this claim, and AI Copeland sued in the Eastern District of Louisiana, believing they were entitled to recover from the costs and damages of the property. First Specialty asked the court to dismiss the case because the policies forum selection clause requires litigation in New York State court, not Louisiana. 

    A forum selection clause is a section in a contract that states how all disputes must be litigated in a specific court in a jurisdiction that the parties agreed to. 

    The specific policy in this case stated that:

    The laws of the State of New York, without regard to any conflict of laws rules that would cause the application of the laws of any other jurisdiction, shall govern the construction, effect, and interpretation of this insurance agreement.

    The parties irrevocably submit to the exclusive jurisdiction of the Courts of the State of New York, and to the extent permitted by law, the parties expressly waive all rights to challenge or otherwise limit such jurisdiction.

    The district court ruled in favor of First Specialty and dismissed the case based on forum non conveniens. AI Copeland then appealed the case to the Court of Appeals for the Fifth Circuit, believing the district court erred in denying their motion to recover the costs from First Specialty. 

    A forum non conveniens motion is similar to venue rules where the court decides where the case can be heard, and it allows a court to decline to hear a case if there is a more appropriate forum in which the case could and should be heard instead. 

    The appellate court explained that a forum selection clause would only be unreasonable and, therefore, not allowed for a few circumstances. (1) The incorporation of the forum-selection clause into the agreement was the product of fraud or overreaching; (2) the party seeking to escape enforcement will, for all practical purposes, be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene a strong public policy of the forum state. Haynsworth v. The Corporation

    AI Copeland relied on Louisiana Revised Statute § 22:868, which states that no insurance contract in Louisiana can have any condition that does not allow the courts of Louisiana any jurisdiction to review the case against the insurer. 

    The court explained there are two distinct definitions between the words “venue” and “jurisdiction.” 

    They disagreed with AI Copeland’s reliance on § 22:868 because it specifically stated that provisions in an insurance contract are not allowed only when it would deprive Louisiana courts of jurisdiction. A forum selection clause, which First Specialty had in their contract, deals specifically with venue. 

    AI Copeland’s first defense was how prior courts used the terms ‘forum’ or ‘venue’ interchangeably instead of the word ‘jurisdiction.’ However, the appellate court explained that this still does not answer the question as to whether § 22:868 prevents forum-selection clauses in insurance contracts.

    AI Copeland’s second contention was the district court did not correctly rely on Shelter Mutual Insurance Co. v. Rimkus Consulting Group, Inc. Copeland argued the statutes in the Shelter forbid forum selection clauses in certain contracts and are not limited to just those examples put forth in that case. In other words, AI Copeland argued there are many reasons why a forum selection clause should not be allowed. The appellate court disagreed with AI Copeland and stated that Shelter does not deal with interpreting § 22:868, as the court did here. 

    The Court of Appeals for the Fifth Circuit agreed that First Specialty made a case to keep the forum selection clause because AI Copeland’s reliance on § 22:868 did not apply. 

    Contracts are complicated enough even without the problems with clauses that affect where your case can be tried. Ensuring that you are fully and justly compensated for injuries caused by the fault of others requires the assistance of the very best attorneys.

    Additional Sources: AL COPELAND INVESTMENTS, L.L.C.; DIVERSIFIED FOODS & SEASONINGS, L.L.C., V. FIRST SPECIALTY INSURANCE CORPORATION

    Written by Berniard Law Firm Writer Brianna Saroli

    Other Berniard Law Firm Articles on Forum Selection Clauses & Contracts: Jefferson Parish Maritime Case: Are Forum Selection Clauses in Employment Contracts Enforceable in Louisiana? Upholding Contractual Obligations: Legal Remedies for Noncompliance

  • The Impact of Timeliness in the Legal Field

    Timing. We all know it’s important, but how important is it in the legal field? Properly filing documents, adhering to deadlines, and raising legal issues within specific timeframes can significantly impact the outcome of a case. In the following case, the Fifth Circuit Court of Appeal looks to the issue of timeliness in the legal field and whether the cause of actions has matured enough to be “ripe” for judicial determination. 

    Bayou Orthotic and Prosthetics Center, L.L.C. (“Bayou”) owned and operated a medical business that provides medical prostheses and relative equipment. In 2016, Leroy Davis needed an above-the-knee prosthetic from a prior accident, which Bayou provided. Morris Bart was representing Davis for his injuries and asked Bayou for medical treatment, providing that he would protect Bayou’s medical charges for around $29,000. Bayou treated Davis for almost ten years, racking up expenses to around $126,000. 

    Bart never paid, and Bayou sued. Bart filed an exception of prematurity because the commitment to pay Bayou depended on a suspensive condition – if the payment to Bart of settlement proceeds. This did not happen. Bayou disagreed and believed the agreement was based on a term, not a suspensive condition, and therefore, the payment from Bart had to have been paid within a reasonable period. 

    An exception of prematurity asserts that a certain claim is not adequately mature for the court to be able to hear it or the claim’s ripeness is not up to par to be litigated quite yet. Bayou asserts that the term was not enforceable because Bart did not perform his end of the contract by paying within a reasonable time after the settlement. At the trial court, the judge granted the exception of prematurity and dismissed the case. The Fifth Circuit Court of Appeal in the State of Louisiana heard the appeal to determine whether the trial court was correct in allowing the claim of the exception. 

    Bayou relied on Tymeless Flooring, Inc. v. Rotolo Consultants, Inc, where the court held that an alleged agreement is based on a “pay-when-paid” clause, not a “pay-if-paid.” Therefore, Bayou claimed the clause is a suspensive condition, and Bart must pay Davis’ expenses within a reasonable time. While there was no formal agreement between Bart and Bayou, Bart orally assured that Bayou would be paid in full.

    The appellate court noted that letters between the parties clearly showed Bart’s statements that he would only protect Bayou’s charges “out of any net settlement or proceeds obtained” due to Davis’s accident. Bayou’s reliance on the Tymeless case was not appropriate, as the appeals court noted that (1) it dealt with payment provisions of a contract; however, the type of contract differed, (2) the language in the contract that correlated with Bart’s letters qualify as a “pay-if-clause” not a “pay-when-paid” clause, and (3) Bayou accepted the risk of nonpayment and continuing to treat Davis’s conditions. Therefore, the court agreed with Bart and allowed the exception of prematurity.

    This case is the perfect example to show the gravity of the tidiness of the legal realm. Hiring a well-versed attorney who is aware of these nuanced ‘ins and outs’ is critical for success in court. Failing to address legal matters within prescribed time limits can lead to missed opportunities and adverse outcomes. When it comes to the legal system, every moment counts, and securing the assistance of a knowledgeable advocate ensures that you are not left with the regretful realization that it is too late.

    Additional Sources: BAYOU ORTHOTIC AND PROSTHETICS CENTER, L.L.C. V. MORRIS BART, L.L.C.

    Written by Berniard Law Firm Writer Brianna Saroli

    Other Berniard Law Firm Articles on Timeliness and Ripeness: Not Yet: Motion to Dismiss Appeal Not Ripe for Review in Medical Malpractice Case Out of Lake Charles

  • Analysis of Insurance Coverage Exclusion in a Complex Liability Case

    In the realm of insurance coverage disputes, a recent case has brought attention to the application of policy exclusions and their impact on the availability of coverage. Daphne Richardson Valteau took legal action after her father had been stabbed to death on premises owned by The Terraces Limited Partnership (“The Terraces”). The Terraces was managed by Latter & Blum Property Management, Inc. (“Latter & Blum”), while another company, Patriot Protection Agency, Inc. (“Patriot”), had been handling the security services for The Terraces.

    Patriot’s liability insurance was through First Mercury Insurance Company (“First Mercury”), First Mercury moved for summary judgment, seeking dismissal of Valteau’s claims. First Mercury argued that the exclusions provided in Patriot’s insurance policy regarding intentional and criminal acts were valid and enforceable. After its motion was denied, First Mercury appealed, petitioning for a writ of certiorari from the Fourth Circuit Court of Appeal.

    After reviewing the contractual language of Patriot’s insurance policy with First Mercury, specifically the “Exclusion of Specific Work” provision, the Appeals Court identified various issues that need to be addressed before summary judgment could be ruled on, as well as a major distinction from precedent Louisiana case law. The Court distinguished this case based on how the exclusionary language essentially provided no coverage to Patriot if the incident occurred on a property “established for the purpose of providing subsidized housing….” 

    The Appeals Court held that the following issues needed to be resolved before summary judgment could be ruled on. First, the ambiguity of the endorsement provision within the policy needed to be addressed to determine if the policy provided any coverage at all to Patriot. Second, the definition of the exclusion needed to be reviewed to ensure compliance with state and federal housing laws. Lastly, the overall policy needed to be assessed to confirm it met the relevant licensing requirements under Louisiana law, which mandated that Patriot have liability insurance. The Fourth Circuit denied First Mercury’s relief, stating there were still genuine issues of material fact. Therefore the matter was not yet ripe for summary judgment. 

    This case underscores the importance of thoroughly examining the language and implications of insurance policy exclusions. It highlights the need for a comprehensive analysis of the exclusion’s ambiguity, potential violations of housing laws, and compliance with licensing requirements. 

    Additional Sources: Daphne Richardson Valteau v. First Mercury Insurance Company, et al.

    Written by Berniard Law Firm Blog Writer: Kate Letkewicz

    Additional Berniard Law Firm Articles Involving Insurance Disputes: Employee-Injury Exclusion Precludes Insurance Coverage For Injured Stunt Performer; What Happens When Uninsured Motorists Coverage Is From A Different State Than Where the Accident Occurred?  

    Understanding Insurance Exclusions: A Case of Property Damage Coverage for Borrowed Cars

  • Louisiana Inmate Failed to Establish Deliberate Indifference to Serious Medical Needs

    When a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

    In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows. 

    In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King. 

    On appeal, Bailey claimed the District Court erred in dismissing his claims that Dr. Leggio was purposefully indifferent to his medical needs. Bailey did not fight the dismissal of his assertions against the prison, the prison warden, the 19th Judicial District Court, or the judge by the District Court. 

    To win a claim for deliberate indifference, the claimant must show that a government official’s intentional indifference posed a significant risk of grave medical harm. See Wagner v. Bay City. It can be shown that an official acted intentionally indifferent to a prison inmate’s health if the official 1) knew the inmate was facing a significant risk of serious injury and 2) failed to take reasonable actions to decrease the risk of injury. See Farmer v. Brennan.

    The Court of Appeals found Bailey’s argument amounted to disagreement with treatment type or a claim of malpractice, not deliberate indifference. Additionally, the Court of Appeal found the evidence provided by Dr. Leggio established there was no real issue of material fact, Dr. Leggio did not disregard Bailey’s complaints or refuse to treat him, did not purposefully treat him wrongly, and did not show a wanton indifference for his serious health concerns. The Court of Appeal found that Dr. Leggio’s presented evidence contradicted Bailey’s claims that Dr. Leggio was intentionally indifferent, purposely failed to help Bailey, and allowed Bailey to suffer. As such, Bailey did not present viable evidence to show a real triable issue. 

    As Bailey failed to establish a genuine issue for trial regarding his deliberate indifference claim against Dr. Leggio, the Court of Appeal denied his motion in forma pauperis and dismissed his appeal as frivolous. 

    This case highlights the significance of presenting essential evidence when alleging deliberate indifference against prison officials. It underscores the importance of seeking the guidance of experienced attorneys knowledgeable in various claims to ensure the necessary evidence is provided to support arguments effectively. By understanding the requirements and adhering to the standards set by the court, inmates can pursue legitimate claims and hold responsible parties accountable for their actions or inactions.

    Additional Sources: GREGORY BAILEY v. EAST BATON ROUGE PARISH PRISON; DENNIS GRIMES; 19TH JUDICIAL DISTRICT COURT; TONY MARABELLA; DOCTOR VINCENT LEGGIO, East Baton Rouge Parish Prison Dentist

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Frivolous Lawsuits: Medical Malpractice Claim Sent Back to the Trial Court due to Doctor’s Affidavit Sincerely or Not: Could You Be Liable for Bringing a Frivolous Appeal?

  • Timely Filings and the Road to Justice: The Implications of Abandonment in Civil Litigation

    Navigating the intricacies of civil litigation requires strict adherence to procedural rules, as the failure to meet deadlines or follow the correct timeline can result in serious consequences for plaintiffs seeking justice. In the case of Michael Neal Rollins, an inmate who filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America, the impact of missed deadlines and abandoned filings became evident. Rollins alleged physical abuse during his transportation back to the Iberia Parish Jail, but his case was ultimately dismissed due to abandonment. This instance highlights the critical importance of timely and diligent filings within the legal system, emphasizing the need for plaintiffs to navigate the complex procedural landscape to have their claims heard.

    Rollins filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America. Rollins was an inmate incarcerated at the Iberia Parish Jail in New Iberia. In 2008, Rollins was returned to the Iberia Parish Jail from prison in Winn Parish, having been evacuated there during Hurricane Gustav. After his subsequent release, Rollins filed his suit against the State of Louisiana in 2009 for injuries he suffered while transporting back to the Iberia Parish Jail from Winn Parish. Rollins alleged that officers physically abused him on the bus and in the Iberia Parish Jail parking lot.  

    Over seven years later, in 2017, the State of Louisiana filed a Motion to Dismiss the suit on the grounds of abandonment. The state claimed that there had been no filings or steps taken to proceed with the case since 2014. The plaintiff filed a counter-motion, alleging that it had filed a motion requesting discovery materials from the defense. The defendants argued that one of the defendants, Sheriff Louis Ackal, never received these requests. The district court ruled in favor of the defense, stating that failure to serve the request to all the defendants negates it as a step in prosecuting the action. Thus the district court dismissed the case in its decision, from which the plaintiff appealed.

    On appeal, the appellate court looked to the definition of abandonment outlined by Louisiana law and relevant cases. Specifically, an action is considered abandoned after no step has been taken in moving the case forward over three years. These actions must either be formal in the trial court or an authorized request for discovery served on all parties. Giglio v. State. The Louisiana Supreme Court also specifically ruled that a request for discovery that is not served to all defendants is unsuccessful in preventing an action from being dismissed under the cause of abandonment. Guillory v. Pelican Real Estate. 

    Citing these cases and the very specific language of Louisiana’s Rules of Civil Procedure, the appellate court upheld the district court’s decision. Rollin’s claims of abuse by state and parish officials were dismissed outright without a chance of being presented to a judge or jury for judgment on the facts of the case. The rules that govern litigation are not as malleable as some may believe. Adhering to these rules is critical in ensuring that plaintiffs have their claims presented to the court in full and addressed on their merits rather than through technicalities of the court system. 

    This case is a stark reminder of the significance of timely filings and adherence to procedural rules in civil litigation. This outcome highlights the strict nature of civil procedure rules and their potential impact on individuals seeking justice. It underscores the importance of adhering to these rules to ensure that plaintiffs can present their claims before a judge or jury, allowing for a fair and thorough examination of the merits of their case. In litigation, procedural compliance can make all the difference in ensuring that claims are heard on their substantive merits rather than being dismissed due to technicalities.

    Additional Sources: MICHAEL NEAL ROLLINS VERSUS STATE OF LOUISIANA THROUGH THE DEPT. OF PUBLIC SAFETY AND CORRECTIONS, ET AL.

    Author: Colin McGinness

    Other Berniard Law Firm Articles on Abandonment in Court: Blind Trust: The Importance of Timely Appeals in Personal Injury Cases; Lawsuit Over Car Accident Involving Louisiana State Employee Dismissed After Three Years of Inactivity by Plaintiff; Does Scheduling A Court Status Conference Stop Case Abandonment?

  • Injured Dump Truck Driver Deemed 50% At Fault For Collision On Job Site

    Workplace accidents can strike unexpectedly, leaving individuals injured and grappling with the complex question of who bears responsibility. However, when such accidents involve heavy machinery and contractual relationships, determining fault can become even more challenging. In the case of Clark Nixon, a dump truck driver at Terrebonne Levee & Conservation District (TLCD), the lines blurred further when an incident unfolded on the job site. As Nixon seeks justice for his injuries, the lawsuit shines a light on the intricate interplay of liability, contractual obligations, and the need for skilled legal representation to recover medical costs and hold those at fault accountable.

    Nixon worked a contract job as a dump truck driver at Terrebonne Levee & Conservation District (TLCD). Nixon’s duties as a dump truck driver included delivering dirt to TLCD, where the surplus would eventually be used to build a levee. Specifically, Nixon would back his truck up to the dirt mound and unload the dirt from his truck. Once finished, a bulldozer truck would follow by pushing the dirt mound up a ramp, then reversing down the ramp to make room for the next dump truck. On the TLCD job site, there was also an individual known as the “spotter,” who verified the dirt being dumped and directed the dump truck driver where to unload their pile of dirt. 

    After a spotter verified the dirt in Nixon’s dump truck, Nixon began to back his truck towards a specific dirt pile to unload. David Danos was handling a bulldozer at the same time. As Nixon was reversing toward the dirt pile, his truck collided with Danos’ bulldozer, which was traveling down the ramp after moving the dirt. 

    Nixon filed a lawsuit, alleging he was injured from the collision and that the negligence of Danos and TLCD caused the collision. The defendants denied Nixon’s allegations, contending the collision was 100% Nixon’s fault. The trial court ultimately found a combination of fault from all parties, Nixon, TLCD, and Danos caused the incident. The lower court allocated 50% fault to Nixon and the other 50% to TLCD and Danos. After totaling Nixon’s damages to just under $345,000, the lower court reduced it by 50% based on the allocation. 

    Nixon then promptly appealed the judgment, contending TLCD and Danos were the only parties at fault for the collision. TLCD and Danos also appealed the judgment, arguing the opposite, that Nixon was solely responsible and that he should be allocated 100% fault. Upon review and based partly on the reasoning of TLCD and Danos’ companion appeal, the First Circuit Court of Appeal affirmed, finding “no manifest error” in the lower court’s factual determinations and allocation of 50% fault to Nixon. 

    Workplace accidents can happen at any time, whether or not it is due to any fault of your own. When there is a resulting injury from such an accident, an experienced attorney can help you get treatment expenses covered and on the road to recovery much more quickly. 

    Additional Sources: Clark Nixon vs. Terrebonne Levee & Conservation District, Arch Insurance Company and David Danos 

    Written by Berniard Law Firm Blog Writer: Kate Letkewicz

    Additional Berniard Law Firm Articles on Workplace Accidents: Louisiana Court Bars Recovery for NOPD Officer Who Tested Positive for Morphine on the Job; When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

  • Dealing with Flood Damaged Property? Be Prepared to Show Causation

    The story of an underdog seeking justice against a powerful corporation is a familiar legal narrative. And while we may be inclined to root for the little guy, that does not relieve him from proving he has a valid case.

    In Louisiana, a plaintiff will not see his case go to trial if it lacks support to overcome a motion for summary judgment. The opposing side will look for holes in the plaintiff’s claim, posing the question: if you have not produced facts suggesting I committed this offense, how will you obtain the requisite evidence to prove it at trial? Accordingly, every “essential element” of a claim requires factual support to serve as a basis for deliberation at trial. La. C.C.P. art 996(c)(2).

    The Mitchells, owners of a Shapes Gym in the Parish of Ascension, faced this “make it or break it” moment of summary judgment in their case against neighboring businesses, Wal-Mart, and Aaron’s. The Mitchells alleged that the neighbors’ improperly designed and maintained stormwater drainage systems were to blame for six inches of rainwater that flooded the gym in 2009 and again during litigation of the first flood claim in 2014. 

    In response, Walmart and Aaron’s filed motions for summary judgment, which the trial court ultimately granted. The defendants prevailed because the Mitchells did not adequately support the foundation of their claim, negligent stormwater management. The Mitchells had relied on testimony from a Professional Engineer regarding the substandard quality of the drainage system, but her findings failed to show causation: how did the performance of the drainage system cause Shapes Gym to flood?

    When the case came before Louisiana’s First Circuit Court of Appeal, the propriety of granting summary judgment was re-examined. This involved a two-part inquiry:

    1. Do the facts support an inference that poor stormwater management caused the flooding of Shapes Gym? (In legal parlance, does res ipsa loquitor apply?)
    2. Is the expert testimony sufficient to establish that some act or omission by Wal-Mart/Aaron’s created the conditions that resulted in flooding?

    First, for a res ipsa loquitor argument to hold, the proposed inference must be the most probable explanation for an injury, having no equally reasonable alternative. Boudreaux. The Court of Appeals found that the flooding of Shapes Gym could have been due to another cause, and it was Mitchell’s responsibility to provide evidence that it would not have occurred without Wal-Mart/Aaron’s negligence. 

    In response to the second question, the Court of Appeals found that Mitchell’s engineering reports were inadequate for showing causation between the performance and maintenance of Walmart/Aaron’s drainage systems and the gym flooding. The engineer concluded that the systems were undersized and improperly maintained, and the resulting sediment buildup was causing the overflow to discharge into Shapes Gym. However, this conclusory statement lacked supporting details: the specific amount of sedimentation in the drainage areas, the evaluation criteria for determining if that amount would cause overflow, or any additional documentation like photographs depicting site conditions around the time of flooding.

    Mitchell’s case against Wal-Mart et al. demonstrates the importance of performing due diligence during the pre-trial phases of litigation. A good claim relies on a thorough investigation to uncover the details courts demand, especially when a powerful adversary is prepared to challenge every issue. If you’re dealing with a “make it or break it moment” like this one, call the team at Berniard Law to get your case on the right track.

    Additional Sources: Mitchells vs. Aaron’s et al

    Written by Berniard Law Firm Blog Writer: Emily Toto

    Additional Berniard Law Firm Articles on Res ipsa loquitur: New Orleans Lawsuit Answers the Question of Who is Liable in Fire that Spreads Case