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  • Medical Deaths Aren’t Always Medical Malpractice

    When a patient suffers from harm done to them by the negligence of a health care provider, he may be a victim of medical malpractice. A recent Louisiana Fifth Circuit Court of Appeals case explained why it is not always a case of medical malpractice when an avoidable medical death occurs.

    Andrew Moonan fell at home and was taken by ambulance to the emergency room, where an x-ray showed two fractured ribs. Several days after being released, Moonan called Dr. Monte, his primary care doctor, after hours, requesting he return to the hospital. A couple of days later, he collapsed and was taken to the hospital, where he died due to a pulmonary embolism. His wife and son filed a complaint for medical malpractice against Dr. Monte with the Louisiana Division of Administration. The panel unanimously determined Dr. Monte was not negligent and did not breach his standard of care with Moonan. 

    The Moonans filed a medical malpractice lawsuit against Dr. Monte and his insurer, claiming Dr. Monte breached the standard of care in several ways, including failing to inform Moonan of the risks associated with staying in bed all day and the risk of a pulmonary embolism, allowing his medial technologist to tell Moonan to get up and walk since his condition was not serious, and failing to tell Moonan to return to the emergency room. The jury reached a unanimous verdict in favor of Dr. Monte, and the Moonans filed a motion for a new trial which the trial court denied. The Moonans appealed, claiming the trial judge erred in allowing Dr. Diechmann to testify as an expert because it violated the court’s Scheduling Order, and the judge erred in redacting two parts of the wife’s timeline because it contained crucial information about the credibility of the parties.

    The trial court has great discretion in implementing and enforcing pre-trial orders. When there is any doubt about whether an attorney has failed to abide by the pre-trial order, the court should favor receiving the information, and absent any abuse of discretion, the judge’s decision will be upheld (La. C.C.P. art. 1551). Here, the trial court did not abuse discretion to allow Dr. Diechmann to testify as an expert witness because the Moonans were aware of Dr. Diechmann’s opinion and potential testimony. Even though there was no expert report as required by the Scheduling Order, the Moonans were aware of his opinion. Therefore, the court concluded this claim made by the Moonans lacked merit.

    The Moonans also argued parts of the wife’s timeline should not have been redacted because they were not hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted (La. C.E. art. 801(c)). The appeals court decided the statements were hearsay, but the trial court did not abuse discretion in redacting the statements from the timeline. 

    The redacted portions of the timeline were about statements by Dr. Monte, and Mrs. Moonan admitted she never heard the phone conversation between her husband and Dr. Monte. In addition, the statements were offered to prove Dr. Monte breached the standard of care. The court concluded there was no merit for the Moonans’ second assignment of error. The court concluded there was no basis for overturning the jury’s unanimous verdict in favor of the defendant and decided the trial court did not abuse its power in denying the motion for a new trial. 

    Losing a loved one is an immeasurable hardship, particularly when their passing may have been preventable. In the midst of such a devastating situation, it is crucial to untangle the intricate web of circumstances surrounding medical malpractice claims. While the tragedy of Moonan’s death cannot be understated, the court concluded that it was not a case of medical malpractice on the part of Dr. Monte. This poignant reminder serves as a testament to the intricacies of medical negligence, urging us to approach such cases with an open mind and retain experienced legal counsel before proceeding with a lawsuit.

    Additional Sources: Noemie I Moonan, et al. v. Louisiana Medical Mutual Insurance Company and Dr. Frank J. Monte

    Written by Berniard Law Firm writer Alivia Rose

    Additional Berniard Law Firm Article: Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

  • Demonstrating Injuries to Children in Auto Accidents: Understanding the Requirements and Legal Proceedings

    When accidents involve children, gathering factual information regarding their physical health becomes even more crucial for building a solid case. This is particularly evident in a vehicle collision that took place in Lafayette, Louisiana. The case highlights the specific requirements for demonstrating injuries to children in an auto accident and what is and isn’t required to prove injuries to a child.

    On January 19, 2015, Bradley Quoyer was backing out of a driveway onto a street in Lafayette, Louisiana, when his vehicle collided with the rear passenger side of Neosha Robertson’s vehicle. At the time of the collision, Ms. Robertson’s two minor children were in the back seat. She filed a lawsuit against the driver, Clement Bradley Quoyeser,  and his insurance company on behalf of herself and her children, claiming that they both suffered injuries.

    Quoyer filed a motion asking that the children be dismissed from the lawsuit, and the trial Court granted this motion. Robertson disagreed with the ruling and therefore appealed.  

    At the The Court of Appeal Third Circuit Quoyeser argued that expert testimony is required to prove the injury of the children. Because Quoyeser challenged whether the children were injured at all, he contended that there must be proof by a doctor. 

    Hoping to support this argument, Quoyeser attached records of letters from Dr. Mack, who saw the children nine months after the accident and reported the collision did not cause either child’s changed behavior. Robertson then pointed the appeals court to testimony from her deposition, where she explained the children were “shaken up in the wreck, were crying, and suffered injuries” due to the impact. 

    The appellate Court explained that this testimony did create a factual dispute regarding the children’s injuries, in addition to the excerpt from her deposition stating that Quoyer struck the part of the car where her children were riding. Robertson also noted testimony that showed how the children were affected by the accident and exhibited abnormal behavior, like nightmares and crying after the accident occurred.

    The Appeals Court explained that, as Carrier v. Nobel Ins. Co. points out that whether an accident caused a person an injury is a question of fact. Here, the Appeals Court found the testimony of abnormal behavior and severe changes to the children’s day-to-day lives was sufficient to show a genuine issue of material fact. Therefore, the Court reversed the trial court’s grant of summary judgment and ruled in favor of Robertson, allowing the children’s claims to proceed. 

    The appeals court did not rule that deposition testimony proved the children were injured. It also did not endorse Quoyser’s argument that expert testimony would be required to prove the children’s injuries. The appeals court ruling stated that facts concerning their injuries remained in dispute, allowing them to be presented at trial. 

    Ultimately, this case reveals that courts still value the importance of knowing specifics regarding injuries from a vehicle crash, especially when children are involved. It’s essential, however, to make sure you hire the best attorney when these kinds of legal matters arise to ensure you AND your children receive the legal justification they deserve.

    Additional Sources: NEOSHA ROBERTSON, ET AL V. THE NETHERLANDS INSURANCE COMPANY, ET AL

    Written by Berniard Law Firm Writer Brianna Saroli

    Additional Berniard Law Firm Articles on the presentation of facts at Trial in Louisiana: How Genuine Issues of Material Facts Can Impact a Personal Injury Case & Judicial Notice of Facts, When Can and Can’t it Be Used in Louisiana Trials

  • Can An Independent Medical Examiner Determine Maximum Medical Improvement in a Worker’s Compensation Case?

    Being injured at work is never what you want to deal with. What’s worse is dealing with multiple independent medical examiners making opinions on your medical state. In the following case, the Louisiana Court of Appeal First Circuit addresses whether a medical examiner’s determination of maximum medical improvement is closely related to the worker’s condition and ability to work.

    Ella Hamilton injured her neck and shoulders while moving trash bags into a dumpster while working as a custodian for GCA Services. Hamilton filed a workers’ compensation claim, and GCA Services paid indemnity and medical benefits to and on behalf of Hamilton in connection with her workers’ compensation claim. A dispute arose between the doctors that reviewed Hamilton’s alleged injuries and whether or not he could return to work.

    Dr. Charles Bowie, a neurosurgeon, diagnosed Hamilton with a cervical disc disorder and opined that she required cervical fusion surgery. He believed her injuries prevented her from working. On the other hand, Dr. David Ferachi, an orthopedic surgeon representing GCA Services, agreed with Dr. Bowie but stated that Hamilton could return to work as a custodian with certain limitations.

    Due to these differing opinions on Hamilton’s ability to work, GCA Services filed a request for Independent Medical Examiner (“IME”) under La. R.S 23:1123. This request was granted. Hamilton asked that the workers’ compensation judge prohibit the medical examiner from addressing any other issues, such as his medical condition, causation, maximum medical improvement, and whether medical treatment is reasonable and necessary. The judge agreed with Hamilton and limited the IME to address Hamilton’s capacity to work. GCA took an appeal of the order.

    The Court of Appeal First Circuit disagreed with the District Court and held that under La. R.S 23:1123, the “condition of the employee” does include maximum medical improvement. This means the scope of the examination the independent medical examiner may address includes the issue of maximum improvement. The Court explained that because the maximum medical improvement is closely related to condition and ability to work, the medical examiner can determine the maximum medical improvement of Hamilton in this case without having to show what the cause of injury was.

    The Louisiana Court of Appeal First Circuit also noted the scope of the independent medical examination should not be limited, per Hamilton’s claim. This is because the independent examiner can provide an opinion of the necessary information without revealing the actual causation of those injuries during an IME. Therefore, the Appeals Court partially reversed the trial court’s ruling to the extent that it restricted the independent medical examiner from determining maximum medical improvement. 

    While each case should be carefully analyzed based on specific facts, this court ruling answered whether the scope of an independent medical examination could be limited in workers’ compensation cases. The answer, in this instance, was determined to be yes.

    Additional Sources: ELLA HAMILTON VS. GCA SERVICES GROUP, INC. 

    Written by Berniard Law Firm Writer Brianna Saroli

    Additional Berniard Law Firm Articles on Workers Compensation: While Injured Worker Claims Late Payment, Louisiana’s First Circuit Court of Appeals Focuses on Important Date & Workers Compensation

  • Navigating the Waters of Maritime Contracts: An Indemnity Puzzle

    In contractual agreements, the validity of indemnity provisions can become a subject of contention between parties. But what happens when determining a contract’s maritime nature becomes pivotal in a case involving specialty services for drilling or production in navigable waters? As discussed below, this issue was scrutinized in a maritime appeal action filed with the United States Court of Appeals for the Fifth Circuit. 

    Apache Corporation (“Apache”) had a blanket master services contract (“MSC”) with Specialty Rental Tools & Supply, L.L.P. (“STS”). This MSC Had an indemnity provision that ran in favor of Apache and its contractors. The work order didn’t require a vessel, nor was it anticipated that it would be needed to perform the job. Apache contracted with Larry Doiron, Inc.
    (“LDI”), to provide a crane barge that was needed for the operation. Unfortunately, a member of the STS crew was injured by LDI operators during crane usage, prompting LDI to file a limitation of liability proceeding as the crane’s owner and a complaint against STS to seek indemnity as per the MSC.

    The pivotal question was whether the MSC should be classified as a maritime contract. If deemed maritime, the general maritime law would govern the enforceability of the indemnity provision. The District Court ruled in favor of maritime law and granted indemnity to LDI from STS. That ruling was appealed. 

    The appellate court examined whether they should apply the maritime or Louisiana law to determine if the indemnity provision should be allowed in the MSC. The Court explained that they had originally used a six-factor test per the court in Davis & Sons, Inc. v. Gulf Oil Corp. (“Davis & Sons”). The appellate court opined that most of the prongs of the test were unnecessary and excessively complicated the determination of whether the contract does fall within maritime law. Instead, the appellate court relied on Norfolk Southern Railway Co. v. Kirby and a simpler two-prong factor test, which is more straightforward.

    The appellate court adopted this Kirby test which just looked to two factors only (1) the contract and services related to maritime activities and (2) if the answer is “yes,” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract? If so, the contract is considered to be of a maritime nature.

    The Court concluded that because the Kirby test focuses on the contract itself and the parties’ expectations, this was the proper approach, although some of the Davis & Sons factors can still be relevant. 

    Ultimately, the court concluded that the MSC in question was nonmaritime. The work commenced before the need for a vessel arose, and its involvement was minimal, unrelated to the anticipated scope of work. Therefore, the contract fell under the governance of Louisiana law, highlighting the significance of accurately determining maritime activities.

    While the definition of maritime activities may remain uncertain, this case offers a more streamlined approach to such determinations. Engaging the expertise of an experienced attorney becomes crucial when navigating the complexities of litigation, ensuring proper guidance in understanding which claims may prevail under Louisiana law.

    Additional Sources: LARRY DOIRON, INC. VS. SPECIALTY RENTAL TOOLS & SUPPLY, L.L.P.; OIL STATES ENERGY SERVICES, L.L.C.; ZURICH AMERICAN INSURANCE COMPANY

    Written by Berniard Law Firm Writer Brianna Saroli

    Additional Berniard Law Firm Articles on Maritime Law: Injured on a Boat on Land, Can you File a Lawsuit with Maritime Claims? Admiralty/Maritime

  • The Importance of Changing a Life Insurance Beneficiary After Divorce

    Divorce can be tumultuous, marked by significant stress and numerous life changes. Amidst the emotional and practical adjustments, it is crucial not to overlook a critical task: updating the beneficiary of your life insurance policy. In Claiborne Parish, a compelling case serves as a cautionary tale, underscoring the paramount importance of understanding and verifying your designated beneficiary on all insurance plans. The story unravels the unsettling reality that the proceeds from your life insurance policy may not end up in the hands of the intended recipient.

    In this case, Hillie Patrick Cox took out a whole-life insurance policy with Southern Farm Bureau, where he listed his mother, Ruby G. Cox, as a beneficiary. Later, he amended the beneficiary to list his wife, Connie Gonzales Cox. Seven years later, however, Hillie and Connie obtained a divorce judgment. Hillie then died approximately 14 years later without executing another change of beneficiary form.  

    Southern Farm Bureau subsequently filed a petition for concursus in the 2nd Judicial District Court for the Parish of Claiborne, claiming that a judgment of possession awarded Ruby usufruct over the entire estate and recognized Debra Cox Diffey, Hillie’s sister as the sole surviving heir. As a result of the judgment, Ruby, Debra, and Connie all presented claims for the insurance proceeds. 

    To support their claims, Ruby and Debra presented allegations asserting that Hillie and Connie’s relations following their divorce were openly hostile, that Hillie thought Connie was not the beneficiary, and the proceeds should go to Hillie’s estate. Conversely, Connie filed a motion of summary judgment and asserted that she was the beneficiary, entitled to the insurance proceeds and that life insurance proceeds were considered non-probate and not part of the decedent’s estate. See American Health & Life Ins. Co. v. Binford. 

    After hearing the evidence, the District Court found the 14-year gap between Hillie and Connie’s divorce and the insured’s death concerning and that awarding the proceeds to Connie could lead to an absurd result. As such, the District Court denied Connie’s motion for summary judgment. Connie then filed an appeal to the Louisiana Second Circuit Court of Appeal. 

    The Court of Appeal found that, under law, the lawful beneficiary of a life insurance policy shall be entitled to the proceeds, and when the insured names a beneficiary, the proceeds of the policy do not become any part of the insured’s estate at his death. See Fowler v. Fowler. Additionally, when the policy unambiguously names a beneficiary, the court cannot inquire whether the insured wishes to change the beneficiary. 

    The Court of Appeal found the insured, Hillie, named his wife, at the time of the execution of the policy, Connie, as the beneficiary of an insurance policy. Although the couple divorced, Hillie did not act to change Connie as the beneficiary. The Court of Appeal also found the policy, application, and change of beneficiary form to be free of ambiguity. Additionally, the extrinsic evidence brought by Ruby and Debra was irrelevant to how the law perceives such situations. Thus, there was no genuine issue of material fact, and Connie was entitled to the insurance policy’s proceeds as a matter of law. 

    This case highlights the potential consequences of neglecting to update the beneficiary designation on your life insurance policy following a divorce. Failing to make this crucial revision can lead to complex legal battles and unintended outcomes. It is a stark reminder of the importance of staying proactive and diligent in managing your insurance plans, ensuring that your wishes are accurately reflected, and your loved ones are protected. By seeking the guidance of a knowledgeable attorney and promptly addressing beneficiary updates, you can help secure the financial well-being of those who matter most to you, even in the face of life’s challenging transitions.

    Additional Sources: SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY versus RUBY S. COX, ET AL.

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Conflicts involving Life Insurance Beneficiaries: The Life Insurance Beneficiary: Allstate Fails to Accept Change in Beneficiary Form, Creating Conflict — Louisiana Personal Injury Lawyer Blog

  • Understanding the Impact of Settlement on Workers’ Compensation Benefits in Louisiana

    Suppose you are considering settling a lawsuit related to injuries on the job. In that case, it is essential to understand how a potential settlement of a related claim could affect your workers’ compensation benefits. What happens to your workers’ compensation benefits if you settle a related lawsuit without written approval from your employer and their workers’ compensation insurer? The following case helps answer that question.

    While working at Mouton Plumbing, Terrell Talbot was involved in a car accident. Mouton Plumbing and its workers’ compensation insurer accepted Talbot’s claim under La. R.S. 23:1021. He received $69,265.02, consisting of workers’ compensation indemnity benefits of $23,487.86 and medical expenses of $45,777.16. Talbot filed a lawsuit against the other individual involved in the car accident and her insurer. Pursuant to La. R.S. 23:1102(A), Talbot notified Mouton Plumbing and its insurer in writing about the lawsuit. They intervened in Talbot’s case. Talbot settled the lawsuit for $107,389,73 but did not obtain written approval from Mouton Plumbing or its insurer. As a result, the insurer ended Talbot’s workers’ compensation benefits. 

    Under La. R.S. 23:1102(B), a worker is not entitled to workers’ compensation benefits if he does not obtain the employee or insurer’s approval to settle a related lawsuit. However, an employee can reclaim his workers’ compensation benefits through a “buy-back provision.” When Talbot’s benefits were terminated, a lien from Mouton Plumbing’s insurer was not satisfied. As a result, the $28,730.84 due to Talbot from the settlement, after deducing attorney’s fees and costs, was paid directly to the insurer to satisfy the lien. 

    Talbot claimed that payment satisfied the buy-back provision. Mouton Plumbing and its insurer claimed this payment did not fully “buy back” Talbot’s workers’ compensation benefits. All the parties filed summary judgment motions. The workers’ compensation judge held the $28,730.84 payment restored Talbot’s workers’ compensation benefits. However, Mouton Plumbing and its insurer were entitled to additional credits against Talbot’s future benefits. Mouton Plumbing and its insurer appealed, arguing that the trial court erred in calculating the “buy back” amount and finding the “buy back” was satisfied. 

    Because the appellate court had to interpret applicable statutes, it reviewed the trial court’s conclusions to see if they were legally correct. Here, the trial court correctly applied  La. R.S. 23:1102(B) in subtracting Talbot’s attorney fee from the lien amount paid to Moulton Plumbing’s insurer. However, the trial court erred in the amount of attorney fees it deducted. Because of this error, the trial court adjusted Talbot’s award to reflect a credit of $2,421.71. Otherwise, the appellate court agreed with the trial court’s award. 

    The appellate court explained the trial court correctly determined Talbot’s buy-back payment would not exceed the 50% statutory cap. The appellate court refused to consider other new arguments the parties raised on appeal related to the trial court’s calculation of the buyback amount.

    Talbot argued the trial court erred by not including the amounts of medical bills paid by his attorney that he claims Moulton Plumbing should have paid. The appellate court found this was a genuine issue of material fact about whether these bills were incurred due to Talbot’s injury. Therefore, the appellate court remanded the case back to the workers’ compensation court to determine that issue. 

    Settling a lawsuit related to work-related injuries without obtaining written approval from your employer and their workers’ compensation insurer can result in the termination of your benefits. This case serves as a reminder of the importance of seeking legal advice to navigate the complexities of settlement and protect your rights. Consulting with an experienced attorney is essential to ensure compliance with legal requirements and maximize the potential benefits from your workers’ compensation claim.

    Additional Sources: Terrell Talbot v. Mouton Plumbing and Hauling, lnc. and Liberty Mutual Ins. Co.

    Additional Berniard Law Firm Article on Settlements involving Workers’ Compensation Claims: Louisiana First Court of Appeal Illustrates How Settlement of Claims is Res Judicata Between Litigants in Tangipahoa Workers Compensation Lawsuit

  • Time Limitations for Lawsuits: Paternity Claims in Succession Cases

    Although there is a common saying, “good things come to those who wait,” that is not true in the context of filing lawsuits, especially if they involve establishing paternity after your purported father passed away. Louisiana law has strict requirements that establish the time by which you must file a lawsuit. Your lawsuit will be dismissed if you do not comply with these requirements. What happens if the law governing how long you have to bring your lawsuit changes? 

    William Dalton Pelt died without a will at his Vernon Parish, Louisiana home. His brothers and sisters filed a petition to have Barbara Lee Pelt Cooley appointed as administratrix of his succession. In the petition, they claimed Pelt had never been married and had no children. The trial court signed an order appointing Cooley as administratrix of his succession. Later, Kristina Wright petitioned to intervene in Pelt’s succession, claiming he was her father. Wright claimed her mother had had an affair with Pelt, and she was conceived during their relationship. She wanted recognition for her rights to Pelt’s estate and to have Cooley removed as the administratrix. 

    Pelt’s brothers and sisters filed an exception of prescription. At a hearing, the trial court agreed with Pelt’s brothers and sisters and dismissed Wright’s petition. Wright appealed, claiming the trial court erred in not correctly applying La. C.C. art. 197 to establish paternity. 

    On appeal, the court reviewed La. C.C. art. 197, which came into effect in 2005. Previously, La. C.C. art. 209 established a time limit of one year after the parent’s death or nineteen years after a child’s birth to establish paternity. In contrast, the current La. C.C. art. 197 established one year from the date of death of the alleged father for filing a petition in the context of succession. La. C.C. art. 197 came into effect after Wright turned nineteen but before Pelt died. As a result, the appellate court had to consider if Wright lost her right to file her claim once she turned nineteen, based on the law in effect at that time. 

    The appellate court found the legislature had decided to replace La. C.C. art. 209 with La. C.C. art. 197 due to equity and policy considerations. The appellate court explained La. C.C. art. 197 needed to be considered in connection with the law governing succession, La. C.C. art. 870. Because La. C.C. art. 870 specifies that succession rights are governed by the law in effect on the date of the decedent’s death, the appellate court found La. C.C. art. 197 governed whether Wright was able to bring her petition. There was also specific language in La. C.C. art. 197  applicable to claims in the succession context. Here, Wright was able to bring her action because she filed it within one year of Pelt’s death. Therefore, the appellate court reversed the trial court’s dismissal of Wright’s claim. 

    This case highlights the intricate nature of time limitations in lawsuits, especially when there are changes in relevant laws. In establishing paternity after an alleged father’s death, compliance with the prescribed timeframe is essential. By interpreting the applicable laws, the appellate court determined that the petitioner had not exceeded the time limit for filing her claim, allowing her lawsuit to proceed. To navigate the complexities of filing a lawsuit within the specified time limits, consulting a skilled

    Additional Sources: Succession of William Dalton Pelt

    Additional Berniard Law Firm Article on Establishing Paternity: In Louisiana How Do You Prove A Child Born Outside a Marriage is Your Child? Avowal Actions Explained

  • Police Officer’s Due Process Not Violated In Termination Due To Multiple Infractions

    Being a classified civil servant provides certain protections, including the right to due process before termination. The following case revolves around a police officer who claimed his due process rights were violated when he was terminated following multiple infractions. It highlights the importance of adequate notice and an opportunity to be heard in cases involving the termination of classified civil servants.

    Uletom Hewitt had been working for the Lafayette Police Department for approximately four years when he saw what he thought was evidence of a bomb at the mall food court where he was working as off-duty security. He then proceeded to evacuate the people visiting the mall. Hewitt was disciplined by the police department for his “over-exuberant” handling of the event and for disobeying an order from a superior not to evacuate the mall. He was suspended for five days without pay after a pre-determination hearing. 

    Hewitt appealed this decision to the Lafayette Municipal Fire and Police Civil Service Board (the “Board”). The Board upheld the decision and the corresponding punishment given to Hewitt. Subsequently, Hewitt was involved in various other acts of misconduct, which resulted in him being placed on administrative leave. These infractions included failing to use his in-dash camera system properly; failing to complete an off-duty request form, working as an off-duty security detail while on administrative leave; failing to provide an updated address to the police department; failing to return calls from internal affairs investigators. Hewitt never returned to duty and was informed he would be terminated. The reasons for his termination included misconduct while he was out on administrative leave.

    Hewitt appealed his termination to the Board, which upheld it. He then appealed to the Fifteenth Judicial District Court, which affirmed Hewitt’s termination. Hewitt then appealed to the Louisiana Third Circuit Court of Appeal, arguing the district court erred in upholding the Board’s decisions. 

    On appeal, the court must give the Board’s decisions great deference and can only overturn its factual determination if there is manifest error. Because Hewitt was a classified civil servant, his status could not be taken from him without due process. See Louisiana Constitution Article I, § 2. The Board is responsible for determining whether a given disciplinary action was appropriate. A trial court can only determine whether the Board acted in good faith and with a legal cause. See La.R.S. 33:2501(E)(3).

    The appellate court reviewed the history of Hewitt’s multiple infractions and found Hewitt had been given adequate notice and opportunity to be heard for most of the allegations against him. The police department had evidence of Hewitt’s multiple infractions and seemed to have followed its internal procedures related to disciplinary action. 

    Further, there was no evidence the Board was acting on political motives or other prejudice. Based on the evidence, there was a reasonable factual basis to support the Board’s findings. Therefore, the appellate court affirmed the district court’s conclusions that Hewitt’s termination was proper. 

    This case underscores the significance of due process when it comes to the termination of classified civil servants. It demonstrates the need for adequate notice and an opportunity to be heard before any adverse employment action is taken. If you are in a similar situation, consulting a skilled attorney specializing in employment law can provide invaluable guidance, helping you understand your rights and pursue appropriate legal remedies.

    Additional Sources; Uletom Hewitt v. Lafayette City-Parish Consolidated Government and Lafayette Municipal Fire and Policy Civil Service Board

    Additional Berniard Law Firm Article on Due Process: Baton Rouge Man Accuses District Court of Abusing Its Discretion and Denying Him Due Process

  • The Role of Expert Witnesses in Accident Claims: Resolving Conflicting Testimony

    If you have been involved in a motorcycle or car accident, you might not know how an expert witness could help support your claim in court. What happens if there is conflicting testimony from each party’s expert witness about the cause of the accident?

    Robert Murphy was driving his motorcycle along Louisiana Highway 538 in Shreveport, Louisiana, while Shauntal Savannah was driving her car in the opposite direction. When Savannah turned left in front of Murphy, Murphy’s motorcycle hit Savannah’s passenger-side door in the lane Murphy had been in before the collision. 

    Murphy and his wife, Pamela Murphy, filed a lawsuit against Savannah, her automobile insurer State Farm, and the State of Louisiana through the Department of Transportation and Development (“DOTD”). They claimed DOTD was at fault because it did not warn motorists about the dangerous condition or remedy the intersection’s deadly design. DOTD responded and denied knowing about any unsafe conditions. The Murphys settled with Savannah and State Farm. 

    DOTD later filed a summary judgment motion, claiming Savannah was solely responsible for the accident and the Murphys did not have any evidence against DOTD. As evidence, DOTD provided deposition transcripts from Murphy and Savannah and affidavits from a DOTD engineer and an expert engineer. 

    The Murphys claimed the intersection’s angle of construction made it unreasonably dangerous. The Murphys provided an affidavit from an engineer supporting their argument. The trial court granted summary judgment in favor of DOTD. The Murphys appealed, arguing the trial court erred in granting summary judgment in favor of DOTD because there were genuine factual issues about whether the intersection’s design caused the accident.

    An appellate court reviews a trial court’s decision to grant a summary judgment motion de novo, meaning it does not have to defer to the trial court’s judgment. Under La. C.C.P 966, a motion for summary judgment should be granted if there are no genuine issues of material fact. An expert can testify in the form of an opinion when the expert’s specialized knowledge will help the trier of fact understand the evidence or determine a factual issue. See La. C.E. art. 702. To defeat a summary judgment motion, the expert’s opinion must be more than just a conclusory assertion about the case’s ultimate legal here. 

    In support of the DOTD’s summary judgment motion, the DOTD’s expert claimed Savannah was solely responsible for the accident. He testified that the at-issue intersection was not unreasonably dangerous. In contrast, the Murphys’ expert claimed the intersection’s layout contributed to the accident. Because of this conflicting expert testimony regarding causation, it was improper for the trial court to grant summary judgment. Therefore, the appellate court reversed the trial court’s grant of summary judgment in favor of DOTD.

    Expert witnesses are critical in accident claims, providing specialized knowledge and opinions to assist the trier of fact. When expert testimonies conflict, they become a significant factor in determining the outcome of a case. If you have been involved in a motorcycle or car accident, it is crucial to seek the guidance of a skilled attorney who can advise you on the evidence required to support your claim, including the potential testimony of expert witnesses. Their expertise can help strengthen your case and increase your chances of a favorable outcome in court.

    Additional Sources: Robert G. Murphy and Pamela Murphy v. Shauntal Savannah; State Farm Mutual Automobile Ins. Co, AKA State Farm; State of Louisiana, through the Department of Transportation and Development

    Additional Berniard Law Firm Article on Expert Witnesses: Outcome of Edgerly Case Dependent On Qualification and Use of Expert Witnesses

  • Understanding Open and Obvious Defects: Implications for Personal Injury Claims

    When it comes to personal injury claims resulting from slips, trips, or falls, the concept of open and obvious defects plays a significant role. Failing to act reasonably or being harmed by an apparent defect may hinder your ability to recover compensation for your injuries. This case exemplifies the importance of these factors in determining liability.

    Ray Eskine was a permanently disabled individual who used a walker to move around.  When trying to see how long the grass was on his lot across the street, he walked across an elevated walkway in front of his house. One of the wheels on his walker slipped, causing him to fall into a ditch and get injured. 

    Eskine and his wife filed a lawsuit against the City of Gretna and its insurer, claiming the walkway was defective and presented an unreasonably dangerous condition. They claimed the City of Gretna was responsible for the care of the walkway and had knowledge of the defective condition that resulted in his injury. 

    The City of Gretna filed a summary judgment motion, arguing the Eskines could not show the walkway’s condition created an unreasonable risk of harm. Additionally, the City of Gretna argued the walkway’s condition was open and obvious, and Eskine did not exercise reasonable care in walking on it. Eskine claimed the walkway was defective because it was too narrow, had too much slope, was uneven, and the asphalt was breaking off. He said over the past twenty years, during which he had been using his walker, he had only walked over the at-issue walkway two or three times. He conceded nothing prevented him from seeing the walkway’s condition at the time of the incident. 

    A City of Gretna employee submitted an affidavit stating he was unaware of any prior complaints regarding the walkway-s condition. The trial court granted the City of Gretna’s summary judgment motion. The Eskines appealed.

    The Eskines argued the trial court erred in granting summary judgment in favor of the City of Gretna. They claimed there was a hidden defect in the walkway as it was not apparent it was too narrow. The City of Gretna claimed the walkway’s condition was open and obvious, and the appellate court agreed. Here, Eskine indicated he knew the location and condition of the at-issue walkway in front of his house. The evidence indicated that Eskine and anyone else could see the width of the walkway before deciding to walk there. The appellate court explained a reasonable person like Eskine, who used a walker, should not have tried to cross the walkway. Therefore, the appellate court agreed with the trial court’s grant of summary judgment in favor of the City of Gretna. 

    In personal injury cases involving hazardous conditions, the presence of open and obvious defects can significantly impact the outcome. If a defect is apparent and a reasonable person should have been aware of it, it may hinder the injured party’s ability to recover damages. In this case, the appellate court agreed with the trial court’s decision, noting that the condition of the walkway was open and obvious. Since Eskine was aware of the walkway’s condition and chose to walk on it despite its apparent defects, the court concluded that he did not exercise reasonable care. Therefore, the summary judgment in favor of the City of Gretna was upheld.

    Consulting with a knowledgeable attorney is crucial if you have suffered harm due to a dangerous or defective condition. They can guide you on the necessary evidence to support your claim, assess the viability of your case, and help you navigate the complexities of personal injury law. By seeking legal advice, you can better understand your rights and options to pursue the compensation you deserve.

    Additional Sources: Ray Eskine and Sondra Eskine v. The City of Gretna

    Additional Berniard Law Firm Article on Open and Obvious Conditions: Popular Baton Rouge Shopping Center Avoids Liability for “Open and Obvious” Sidewalk Danger