Louisiana Personal Injury Lawyer Blog

Third Circuit Upholds Alexandria Doctor's Actions As Within Standard of Care

Mon, 23 Apr 2012 07:50:13 -0600

Every year thousands of medical malpractice claims are filed. Why? The answer is simple. The practice of medicine is complex, and, as advanced as our medical sciences are, mistakes are made, false diagnosis are given, and new conditions emerge. Since there are so many complexities, the fact that a patient is misdiagnosed or suffers from a condition that the doctor missed does not necessarily guarantee a successful medical malpractice claim. As illustrated by Cheramie v. Norem, in order to succeed on such a claim, a plaintiff must establish that the doctor did something or failed to do something that fell below the appropriate standard of care which resulted in harm to the patient.

In most medical malpractice cases, including Cheramie v. Norem, the most contested issue regards the standard of care. Typically, healthcare providers are held to a reasonable care standard, requiring them to use diligence and their best judgment in applying their skills. General practitioners are held to local standards which are the standards that prevail in the area they live or a similar location. Specialists, on the other hand, are held to a single national standard that applies to the entirety of that particular specialty. Regardless of which locale's standard applies, all standards are comprised of a number of elements which the failure to comply with can give rise to a medical malpractice claim.

Cheramie v. Norem provides a glimpse into one of these standard of care elements. In this case, a doctor provided post-operative treatment to a patient after repairing a hernia. After the hernia operation, a small hole opened in the patient's small intestine, requiring permanent sutures. As time passed, the patient's body began rejecting the sutures and the question arose as to whether or not the doctor should operate to remove them. After years of the doctor's recommendation that the sutures should remain, the patient was forced by his insurance company to get a second opinion. This second doctor operated to remove the sutures, resulting in a full recovery by the patient. Afterwards, the patient filed suit against the original doctor for malpractice.
In this case, the standard of care element the court looked to was informed consent. Louisiana statutes provide that doctors are required to provide their patients with sufficient information to permit the patient to make an informed decision on whether or not to pursue a course of treatment (Hondrouis v. Schuhmacher, 553 So.2d 398, 411 (La. 1988)). This information includes the nature of the patient's condition, the nature and risks involved with a proposed treatment, the likelihood of success of a particular treatment, and the risks of foregoing any treatment. When an issue of informed consent is raised regarding a general practitioner's standard of care, local medical experts and doctors will often testify as to the defendant doctor's actions. If these testifying doctors make statements indicating that certain medical practices or advice was reasonable and appropriate, then malpractice likely has not occurred.

At trial, a jury found that the doctor in Cheramie's case acted within proper standards of providing informed consent. This informed consent included informing the patient of treatment options and the risks, in addition to alternative medical treatments. Dispute arose concerning whether or not the doctor conceded, in a timely matter, that a second opinion was needed. However, when there are conflicting opinions concerning compliance with a standard of care, a reviewing court gives deference to the trier of fact's conclusion. Thus, since the jury found the doctor to be in compliance with the suitable standard of care, the appellate court upheld that decision.

Since the standard of care a general practitioner is required to adhere to correlates to where the doctor practices, rural areas may have a lower standard of care than those in urban settings. The reasons for this are varied, but may include limited access to equipment and technological resources. Therefore, a rural doctor would not be expected to have conducted tests that require an expensive piece of equipment only owned by large urban hospitals. Yet, this same rural doctor would likely be expected to have at least notified the patient of that opportunity, if the doctor knew of such a test. On the other hand, the doctor who practices in a technologically advanced hospital would be held to a higher standard of care because he would have more access to such equipment and specialists. For this reason, when an individual is deciding whether or not to file a medical malpractice claim, she must be aware of the standard of care a doctor is required to give in that location.

Medical malpractice claims are complex, incorporating several elements that may change the legal analysis based on things as simple as the doctor's location. These matters are best left to a practicing attorney with knowledge and experience in this field. If you have any questions regarding a medical malpractice claim, please contact the Berniard Law Firm.

Crowley Auto Accident Gives Rise to Causation Examination in Louisiana Auto Case

Mon, 16 Apr 2012 09:46:15 -0600

When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.
When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff's ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim's foundation.

In Mouton v. Old Republic Insurance Co., the plaintiff sued an electrical company, its insurer, and its driver when the driver backed his truck into the plaintiff's car. At trial, Mouton filed claims against the electrical company, its insurer, and the driver, seeking damages to recoup his medical expenses and to receive compensation for his pain and suffering and his loss of enjoyment of life. The trial judge denied Mouton's claims because he did not believe that the injuries and the accident were causally related. On appeal, however, the judge looked to Mouton's medical history and activities prior to the accident to determine if there was causation. Since Mouton did not have any prior medical conditions that could have caused his injuries, the appellate judge found that the injuries more likely than not resulted from the accident. Therefore, the plaintiff's burden of proof was satisfied.

The appellate judge then turned to damages. First, the medical bills were examined to see if they pertained to the accident injuries, and if so, whether or not the costs were reasonable. In Mouton's case, the judge found the medical costs to be reasonable and thus worthy of award. Mouton's claims for pain and suffering and loss of enjoyment of life, on the other hand, were not supported by any evidence that such claims were causally related to the accident. These claims were therefore dismissed. General damages of $2,500 were awarded, which accounted for the minimal inconvenience Mouton experienced from his injury. This finding provides an example of the importance of the causal link between an accident and the injuries from which one is seeking damages.

Auto accident cases may seem clear cut at first glance, but they are often more complex than one presumes. Several different factors related to causation and damages must be examined closely to determine if a suit should be brought, and if so, against whom, and precisely what claims should be filed. Such a process is best left to an experienced attorney.

Class Action Goes to Federal Court in Texas Plant Release Case

Tue, 10 Apr 2012 09:25:17 -0600

Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

A class action necessarily requires a great deal of people to be involved. No hard number is found in the Federal Rules but joinder rules exist that are capable of incorporating many parties into a lawsuit before it becomes impracticable. Joinder rules lead to cases that are somewhat confusing from time to time but more people have to be involved to make certifying a class appropriate.

The people in the class must also be similarly situated. If there are not common issues of law or fact, a class action is not appropriate. In Klier v. Elf Atochem North America Inc. the court certified three subclasses. The people in each subclass were similarly harmed. There were questions of fact common to each subclass, as well. Each set of plaintiffs alleged that they had been harmed by the same plant. These subclasses were created so that the case could be settled instead of going to trial. One of the subclasses did not exhaust the resources allotted to it so the court utilized the doctrine of cy pres to distribute the remaining funds. That was determined to be a mistake and is the subject of another post on this blog.

Class representatives necessarily must represent the class. If the claims or defenses they present are atypical of the class, they are not accurately representing the interest of that class. This is likely the reason that the court split the Klier v. Elf Atochem North America, Inc. into three subclasses for the purposes of settlement. The representatives of each subclass likely had slightly divergent interests. In order to avoid a conflict of interest, the court split the class.

The fourth aspect of certifying a class to pursue a class action suit is part and parcel of the third aspect but requires something more. The representatives have a duty to the other members of the class to hire competent attorneys and to pursue claims that are in the best interest of the class as a whole. In order for a class action to be successful, someone must step up and take the lead. Without adequate representation, a class cannot be certified. Furthermore, it is unlikely that anyone would even begin a class action if nobody planned to step up and become the class representative.

The Klier v. Elf Atochem North America, Inc. opinion can be read here. The duties and obligations of the class representatives continued after the trial in that case. The rights of the class members were not fully realized after the initial settlement so the work continued. You can read more about the Fifth Circuit's determination in the opinion and this blog post.

Happy Holidays to all of our Friends

Sun, 08 Apr 2012 19:26:46 -0600

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

Mon, 26 Mar 2012 07:21:58 -0600

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will "have no force or effect." La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor's lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor's counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court's clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor's suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield's exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint's verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was "merely harmless error" and that the complaint had been timely forwarded by Taylor's counsel per state law. Broomfield appealed.

The Second Circuit began its analysis by reviewing the burden of proof: it noted that
"[a]lthough the party raising a peremptory exception of prescription ordinarily bears the burden of proof, when prescription is evident from the face of the pleading, the plaintiff bears the burden of showing the action has not prescribed." Cooksey v. Heard, McElroy & Vestal, L.L.P. This means that the plaintiff must prove by a preponderance of the evidence that the original complaint and fees were mailed to the clerk; this proof can take the form of affidavits or receipts that show the date and time of mailing or delivery. The court noted that Taylor’s attorney and office staff "testified that they executed their duties on September 17, 2010 with regard to the petition." Yet, when questioned, "no one could confirm that the envelope [containing the complaint] was actually forwarded from the firm to the post office nor could anyone explain the September 20, 2010 date affixed by the notary," who was unknown to the office staff. Also, no witness could explain why the faxed complaint was not notarized, while the purported "original" delivered to the clerk (late) was notarized. The court reasoned, "Taylor has neither postage proof nor any other form of time-stamped evidence to prove that his counsel timely forwarded the petition for damages. Without such proof of mailing to counter the missing and conflicting evidence, this court cannot agree that Taylor met his burden of proof by a preponderance of the evidence." Accordingly, the court concluded that the trial court was clearly wrong in denying the exception of prescription, and reversed its decision.

The Taylor case makes plain the critical importance of meeting filing deadlines in litigation. A plaintiff must choose his counsel carefully to ensure his case is not lost before it begins due to a technical error like failing to properly and timely file the complaint with the court. I

Texas Class Action Regarding Chemical Release Demonstrates Premise of "Close Enough" in Doctrines

Thu, 22 Mar 2012 08:08:02 -0600

Our system of law is designed to handle most situations. A great deal of situations can be dealt with under the doctrines of law. Our system also has a failsafe of to ensure basic fairness when law provides no satisfying result. Equitable doctrines fill in the gaps in law. Historically a separate system of courts would dispense equitable remedies. In most modern American jurisdictions, though, equitable relief is granted by courts of law. In the case of Klier v. Elf Atochem North America, Inc. the district court employed an equitable doctrine incorrectly. That court used a doctrine called cy pres.

The doctrine of cy pres comes the French "cy pres comme possible" which literally translated means "as close as possible." It is an equitable doctrine that allows a court to look for the second best way in which to use undistributed funds. This doctrine was first used in the area of testamentary charitable contributions. If a person's will left a sum of money with general charitable intent but he gift somehow failed, a court would look for something else to do with the money that would serve the same or a similar purpose. The doctrine was later adapted to the area of class actions.

In Klier v. Elf Atochem North America, Inc. a class action was filed against the owner of a factory that had allegedly caused damage through toxic emissions near Bryan, Texas. The court found that there were three classes of people harmed and divided the money accordingly. Subclass B members were presented with two options for compensation. Members of this subclass could opt to receive a one-time payment or continuous medical monitoring over time. The rate of participation in the medical monitoring program was incredibly low. This led to money being left at the end of the medical monitoring program. The parties had to return to court to figure out what to do with the leftover money.

The court received suggestions from both parties about solutions to the leftover money issue. At least one member of the plaintiff class suggested giving the remainder of the funds to Subclass A, the most seriously injured members of the class. The district court did not address this proposal before opting to apply cy pres. The United States Court of Appeals for the Fifth Circuit thought that the lower court abused its discretion when applying cy pres to this case.

Cy pres is only supposed to apply in a class action when the settlement agreement is ambiguous. Cy pres was not appropriate at all in this case because the settlement agreement made disbursement of funds to Subclass A an acceptable course of action. Furthermore, the court misused cy pres by selecting charities that lacked a sufficient nexus to the underlying harm that gave rise to the plaintiffs' cause of action. The plaintiffs sued because of toxic damage caused by arsenic. The district court decided that the remainder of the money should go to four charities: a scholarship program, two museums and a local history and genealogy museum. The Court of Appeals determined that these charities were not related closely enough to the actual harm in this case.

There are two main lessons of this case. The first is that equitable doctrines are only useful when other areas of law have failed to provide an adequate remedy. This was not the case here. The settlement agreement provided for the allocation of funds to all three Subclasses. The appellate court saw no reason to move so quickly from the terms of this agreement. The second lesson is that the doctrine of cy pres requires a court to get fairly close to the original intent of a body of money in order to declare it "close enough."

Shreveport Liability Tested in Respondeat Superior Claim After Home Invasion

Mon, 19 Mar 2012 08:01:42 -0600

A recent case decided by the Court of Appeal for the Second Circuit of Louisiana demonstrates the legal principle of respondeat superior. In Cote v. City of Shreveport, the plaintiff’s house was broken into and she and her daughter were held captive at knifepoint by the intruder. The intruder had apparently become familiar with Cote’s house through his employment with the city’s water department. Based on this fact, Cote brought suit against the City of Shreveport under the theory of respondeat superior.

Respondeat superior is a common law doctrine that makes an employer liable for the actions of an employee when those actions take place within the scope of employment. The policy behind this doctrine lies in the notion that in an employment relationship, the principle or employer has the ability to control his agent or employee. This control includes which employees to hire as well as the time, space, and method in which work is conducted. Since the employer retains so much control, it only seems fair to hold it responsible when these choices result in injury.

Another policy reason for permitting respondeat superior claims is to allow claimants to pursue a responsible party that has the means to compensate the injured. While the employee him or herself may be responsible, the victim of a tort may not be able to recover suitable compensation for an injury from this individual. The employer, on the other hand, has a greater pool of resources to draw from to settle the wrong. This justification not only allows injured parties to be remunerated properly, but also places an additional financial incentive on employers to take care when hiring and implementing work practices.

In most of these respondeat superior claims, the outcome turns on whether or not the employee was within the scope of his or her employment when the injury occurred. In the Cote case, for example, the employee broke into Cote’s home well after midnight, a time during which the employee was no longer acting on behalf of his employer. Thus, in this case the individual was found to be acting outside his scope of employment and, as a result, the city was not found liable for his actions.

One rule of thumb with regards to scope of employment is to ask whether or not the injury occurred during an act that is necessary or might be reasonably expected to complete an employer assigned task. Minor detours and delays from the assigned task, such as going to the bathroom, are typically viewed as being within the scope of employment. On the other hand, frolic, or major detours that are solely for the benefit of the employee, are seen to be outside the scope of employment and will not cause an employer to be held liable. If an injury is found to have occurred within the scope of employment, the employer may be held liable for the employee’s actions even if such actions were reckless, accidental, or intentional.

When applying these standards to the Cote case, the court made it clear that the employer was outside his scope of employment. The employee had no reason to be at Cote’s house at that time of night and was not even on the clock. Cote also claimed that she had complained about the employee's prior inappropriate actions towards her and the city failed to take action. However, the court found no such complaint on the record. Therefore, the city could not be held liable for retaining the employee, as they could not have been considered to have been on notice.

If you have been injured by someone who was working at the time, you may be able to bring suit against both the employee and the employer. However, several difficult questions, including those involving scope of employment, require careful consideration. These analyses are best suited for an experienced, practicing attorney.

Caddo Parish School Board Held Not Liable for Sexual Assault Involving Students

Thu, 15 Mar 2012 09:05:29 -0600

A school district can be like a parent as it takes care of students who are underage and needing supervision. That attention is greater when the student is more vulnerable. However, the school district's duty is absolute but, instead, limited to those who are in the district's custody, even when the incident is tragic. A sexual assault by one student against another 14-year-old student did not result in liability to the school district because the students had left the school bus and were outside of the school district's control. ln BL v. Caddo Parish School Board (La. Ct. App. 2 Cir. 9/21/11), the court of appeal affirmed dismissal of the case by the First Judicial District Court for the Parish of Caddo.

KKG, the son of BL, had learning disabilities caused in part from his premature birth. His mother enrolled him in "special education classes" at Caddo Learning Center when he was 14. Both KKG and another student, LNG, rode on the same school bus. LNG had a record of disciplinary problems. School records noted 60 reported offenses.

On October 19, 2006, KKG and LNG were friendly. They normally got off the bus at the same stop, and that day they did. KKG went to LNG's house to swap video games, but when they got to the house, LNG said he forgot that the games were at his aunt's house. "On the walk to his aunt's house, LNG threatened to hit KKG with a brick if he did not do as he was told. LNG then sexually assaulted KKG." KKG ran to his grandmother's house, where he reported the assault. DNA provided a positive match to LNG, who was adjudicated a delinquent in juvenile court.

BL, KKG's mother, sued Caddo Parish School Board. She alleged that the school district could have prevented the assault with proper supervision. She also argued that KKG's mental limitations required the school district to provide a heightened level of supervision, which it failed to do. The district court disagreed, however, and granted the school district's motion to dismiss the case.

The court of appeal established the boundaries of school district liability from previous cases. The duty is of reasonable supervision while in actual custody of the children. A 2010 Louisiana Supreme Court case said, "The school board is not the insurer of the safety of the children, and constant supervision of all students is neither possible nor required."

The case had weaknesses in its evidence. KKG's testimony was contradictory. At one time, KKG said that he told the assistant principal "that LNG made sexual gestures toward him," but at another time, KKG said that he did not feel threatened by LNG. Other testimony led to mixed conclusions. KKG's mother told the Caddo Learning Center principal about disruptions on the school bus, but never attributed them to LNG. She did mention LNG specifically to the bus driver about the problems. LNG has a school disciplinary record of profanity, "willful disobedience, leaving school without permission, and fighting." There was no indication that LNG would exhibit sexually aggressive behavior. Most importantly, the incident happened after KKG and LNG left the bus at their regular stop and were off school premises. The court of appeal concluded that the school district was not liable.

Similarly, KKG was not a special education student, according to the school district's Director of Special Education. KKG attended a "remediation program" because of poor math and reading skills. In two years, "KKG made up three grade levels." His mental capacity and social behavior also would not qualify him for special education services. The court of appeal decided that the school district did not owe KKG a heightened duty of supervision.

School districts have duties to care for the youths under their supervision. School activities, extracurricular activities, and other day-to-day events like transporting students in a school bus, make uncertain where the district's duty ends. These distinctions are not always easily recognizable. A skilled lawyer will know where to look to determine whether the facts show that the school district may be liable, improving the chances of success in a lawsuit for damages.

Closing Overview of Class Action Certification for Chemical Leaks, Other Disasters

Tue, 21 Feb 2012 06:43:08 -0600

In this, our final post of the Union Carbide/Dow Taft plant chemical leak series, we will consider the fifth requirement for class certification under Louisiana law: that the class is "defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case."Chalona v. La. Citizens Property Ins. Corp. The intent of this requirement is to ensure that the class is not "amorphous, indeterminate, or vague," such that any potential class members are challenged to determine whether they are actual members of the class. Plaintiffs initially submitted a class definition that included "[p]ersons throughout Louisiana" who were exposed to the ethyl acrylate that escaped the Taft plant and who suffered injury or loss as a result. The court desired a more precise definition, however. It reviewed the zip code maps, weather data, and expert testimony in evidence and incorporated Dr. Williams's method in describing the symptoms suffered by people who were exposed to craft its own definition. This action on the court's part was specifically permitted by Louisiana Code of Civil Procedure Art. 592(A)(3)(c), which envisions that the court may, prior to a final decision on the merits, enlarge, restrict, or otherwise redefine the constituency of the class. The court determined that its sharpened definition would mean that members "only need to determine if they were present in the geographically defined area on July 7, 2009, and if so, whether they experienced any of the symptoms commonly associated with the offending chemicals released." This meant, in the court's view, that its ultimate ruling as to whether the chemical released by the Taft plant caused the Plaintiffs' injuries and losses would resolve the claims of all class members.

The court summarized its conclusions by reiterating that the substantive issue that will control the outcome of the case is whether ethyl acrylate "in the amount released can cause the damages as alleged by plaintiffs. This issue, along with the legal issues of duty of the defendants to the class ... will predominate." Accordingly, the court held that the Plaintiffs successfully demonstrated that certifying the class would not result in the action "degenerating into a series of individual trials."

As we observed previously in the class certification litigation related to the Chalmette Refinery leak in 2007, the court's task in determining whether to certify a class is an extraordinarily fact-intensive one. In many cases, the certification process is just as complex and involved as the trial on the merits of the ultimate issue. In fact, the class certification in the Taft plant case has not yet been finalized. Subsequent to the issuance of Judge Cade's Order on December 15, 2011, the Defendants filed a motion to appeal the class certification.

Please stay tuned to this blog for updates as they become available.

The Third Part of Our Discussion Regarding the Anatomy of a Class Action Certification

Sun, 19 Feb 2012 10:27:33 -0600

Following the prior discussion of numerosity and commonality, we will now examine the court's analysis of typicality under Louisiana Code of Civil Procedure Article 591(A)(3). This prerequisite obligates the court to examine whether the claims or defenses of the representative parties are typical of the entire class. The requirement is met if the claims of the class representatives arise out of the same "event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory." See Gudo v. Admins. of Tulane Educ. Fund.

The court reviewed the three putative class members presented by Plaintiffs. Ramona Alexander lived in Hahnville on the day of the chemical release. She testified that she smelled a strong odor in her home on the morning of July 7, 2009 which caused her to become sick and vomit. The odor also caused burning in her eyes, throat irritation, and shortness of breath. Vanessa Wilson lived in Waggaman on the day of the chemical release. She awoke to an odor that caused eye irritation, nausea, coughing, and a sore throat. Wilson testified that she traveled to Avondale that morning where the odor persisted; her symptoms worsened. She also received a panicked phone call from her mother who was being ordered to evacuate her home in St. Charles Parish. Upon arriving at her mother's house, Wilson observed her mother vomiting and suffering from burning in her eyes. Melissa Berniard, who is a licensed attorney in Louisiana, testified that she was in her home in Orleans Parish on the morning of July 7. She awoke to a foul odor that suggested to her that something may have been burning; she soon experienced eye irritation, headache, nausea, and feelings of anxiety. Berniard traveled to Jefferson Parish later in the day and spoke with others who experienced similar symptoms. The court found that Wilson, Alexander, and Berniard all offered "typical complaints of the constituency of the class" that were corroborated by Dr. Williams's analysis of numerous class members' intake forms which captured their symptoms. Accordingly, the court concluded that the "issue of whether or not a release of ethyl acrylate can cause the damage alleged by the class representatives is common to all class members and is adequately represented."

The court next considered whether the proposed class representatives are adequate under the Louisiana Code by referencing a definition adopted by the Fourth Circuit Court of Appeal. In essence, the Fourth Circuit's analysis of adequacy concerns whether the proposed representatives' claims are "typical of" the claims of all class members and whether the damages asserted by the representatives are of the same type as the class as a whole. See Dupree v. Lafayette Ins. Co. The court noted that Wilson, Alexander, and Berniard all testified to being present in the defined geographical area on July 7, 2009, suffering from the type of symptoms that were common to the class, and being willing to serve as class representatives. Thus, the court held that the adequacy requirement was met with respect to the plaintiff representatives. The court also made a finding on a related matter that Plaintiffs' counsel are "highly skilled attorneys with experience in class action litigation" and well qualified to serve as class counsel. The court expressed that it was "particularly impressed" with the attorneys' presentation at the certification hearing, and felt that "there is no dispute as to the competency and the zealousness of class counsel."

In our fourth and final post in this series, we will examine the court's analysis of the last prerequisite for class certification, the need for an "objective" definition of the class.

Second Part in Understanding the Anatomy of a Class Action Certification

Fri, 17 Feb 2012 07:25:30 -0600

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court's analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes--clearly a large number. The court found persuasive the fact that "the size of the individual claims of class members is small enough that individual lawsuits are impracticable," but that that "separate suits would unduly burden the courts." In the court's view, a class action would "be more useful and judicially expedient." Thus, the court concluded that "numerosity exists," but that "the class is not too numerous to manage effectively."

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist "as to the totality of the issues a common nucleus of operative facts." McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance "entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class." The goal is to "prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. "[V]arying degrees of damages ... does not preclude class certification." In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants' negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was "satisfied ... from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class." The court's reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams's testimony, the court nevertheless found that "a method of assessing general causation for the whole of the class exist[ed]." This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a "common nucleus of operative facts" that permitted a finding that "uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event" involved common legal issues among all members that superseded any individual concerns.

Having concluded that Plaintiffs met their burden of proof on the issues of numerosity and commonality, the court turned its attention to the third requirement: typicality. We will take up this analysis in the next post in the series.

Anatomy of a Class Action Certification

Wed, 15 Feb 2012 08:04:05 -0600

Early in the morning of July 7, 2009, a 640,000 gallon chemical storage tank at Union Carbide/Dow Chemical's Taft plant began to rupture. The tank contained ethyl acrylate, a foul-smelling chemical used in making various products including industrial flavorings, fabric finishes, pigments and dyes, floor polishes, adhesives, and caulk. The substance is listed as a possible carcinogen by the National Institute of Occupational Safety and Health, and is known to cause a number of significant heath issues such as burning of the mucous membranes and eyes as well as respiratory irritation and nausea upon contact through the air. Westerly winds gusting as high as 20 miles per hour carried the chemical vapor into the neighboring communities. St. Charles Parish sheriff's deputies began evacuating residents while officals from the Louisiana Department of Environmental Quality were summoned to perform air testing. Numerous residents in St. Charles Parish and surrounding parishes experienced extremely unpleasant physical symptoms as they came into contact with the chemical vapor.

The Berniard Law Firm filed a lawsuit on July 29, 2009 on behalf of those who suffered effects from the Taft plant chemical leak. On December 15, 2011, Judge Herbert Cade of the Civil District Court of the Parish of Orleans granted the Plaintiffs' Motion for Class Certification. The class is defined as persons living or located in St. Charles Parish and certain areas of Orleans and Jefferson Parishes on July 7-8, 2009 who experienced "eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues" as a result of their exposure to the ethyl acrylate that escaped the Taft facility. The court's order contains an illustrative description of the process by which it analyzed the Plaintiffs' argument for class certification, and an exploration of that analysis will serve as the basis for this and a series of subsequent blog posts.

Previously on this blog, we have examined the requirements for class certification in a federal case according to Rule 23 of the Federal Rules of Civil Procedure. Louisiana's Code of Civil Procedure, in Article 591, sets forth a similar set of standards for certification. Specifically, a plaintiff who seeks to represent a class must show:

(1) the class is so numerous that joinder of all members is [impracticable]; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties will fairly and adequately protect the interests of the class; and (5) the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of conclusiveness of any judgment that may be rendered in the case.
Additional criteria, such as whether the common questions of law or fact predominate over issues pertaining only to individual members, and the practical ability of individual class members to pursue their claims without class certification must also be considered by the court. Only once the court is satisfied that these various factors resolve in favor of class certification can it grant the plaintiff's motion to represent the class.

In the Taft plant litigation, three proposed class members were presented to the court in support of the motion for class certification: Ramona Alexander, a resident of St. Charles Parish; Vanessa Wilson, a resident of Jefferson Parish, and Melissa Berniard, a resident of Orleans Parish. In the next post, we will begin our review of the court's analysis of the five certification requirements under the Louisiana Code.

"Law of the Case" Doctrine, Part 2

Wed, 25 Jan 2012 07:13:15 -0600

In our most recent post, we began a review of the Third Circuit Court of Appeal's application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT's no-coverage arguments had previously been heard in a "peremptory exception of no right of action" filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should "preclude UUT from re-litigating those same arguments" in the instant case. The plaintiffs also argued that the federal case cited by UUT offered "no precedential value in this state court action." UUT's reply asserted that the exceptions previously heard by the trial court "dealt with procedural, rather than substantive, matters," and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court's rulings on the exceptions were interlocutory and therefore "subject to revision by the trial court at any time prior to rendition of final judgment." The trial court granted UUT's motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore "the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT."

The Third Circuit concluded that UUT showed that "the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims." The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply "argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling." The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, "the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions." In fact, UUT was not even made aware of the plaintiffs' position on coverage until the day of the hearing. "Clearly," the court concluded, "the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions." In the view of the court, "[t]he issues raised in the motion for summary judgment filed by UUT ... did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion]." Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

Exploring the "Law of the Case" Doctrine in Vernon Parish Car Accident Litigation

Mon, 23 Jan 2012 07:21:16 -0600

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that "determines the merits [of an issue] in whole or in part" is a final judgment, while a judgment that determines "only preliminary matters" is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that "any language in the court of appeal’s ... writ denial purporting to find no error in the trial court’s ... ruling is without effect." See Bulot v. Intracoastal Tubular Services, Inc..

Related is the "law of the case doctrine." This principle pertains to:

"(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage & Water Bd. of New Orleans.

The doctrine is intended to avoid endless re-litigation of the same issue and to promote consistency of result in the same litigation. It also promotes efficiency by affording the parties a single opportunity to resolve the matter at issue.

The law of the case doctrine was reviewed by Louisiana's Third Circuit Court of Appeal in the recent case of Willis v. Gulf Coast Building Supply. The case centered on an auto accident on November 7, 2005. Steve Coronado was operating a tractor-trailer in Vernon Parish on behalf of his employer, Gulf Coast Building Supply, when he struck multiple vehicles. Six lawsuits were filed by various plaintiffs naming as defendants Coronado, Gulf Coast, Home State County Mutual Insurance Company, Gulf Coast's primary insurer, and Universal Underwriters of Texas Insurance Company (UUT), Gulf Coast's excess insurance carrier. UUT filed a motion for summary judgment seeking to have the plaintiffs’ claims dismissed because its policy did not cover their claims. The tractor trailer that Coronado was driving at the time of the accident was leased to Gulf Coast by Olympic International; the lease agreement specified that Gulf Coast was responsible for providing liability insurance and that Gulf Coast would name Olympic as an additional insured on its policy. UUT's policy covered Olympic, but Gulf Coast and Coronado were not named as insured parties. Also, no provision in the policy extended coverage to lessees of the named insured’s property. Therefore, UUT argued that its policy excluded coverage for the plaintiffs’ claims. To further support its position, UUT pointed the trial court to a decision rendered in a case arising out of the same accident that had been filed in federal court by a different plaintiff. In that matter, the federal court granted summary judgment in favor of UUT and dismissed the case on the basis that the UUT policy did not provide coverage for the claims. That decision was affirmed by the U.S. Court of Appeals, Fifth Circuit.

In a subsequent post, we'll examine the plaintiffs' response to UUT's motion and the court's judgment.

The Plaintiff's Burden in Proving Special Damages

Sat, 21 Jan 2012 06:19:59 -0600

Under Louisiana jurisprudence, special damages are the category of damages that can be "established to a reasonable mathematical certainty." Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff's forgone income can be numerically calculated by the court. Given the relatively high level of precision, "when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages," Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is "no basis for a precise mathematical calculation of the amount of lost earnings," the trial court may award a "reasonable" amount of damages. However, "to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson's testimony that she was unable support a horse's weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, "[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient." In the court's view, Johnson's wage calculation was a mere "guesstimate" that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff's testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court's decision process. Clearly, here, the Third Circuit did not approve of the trial court's treatment of Johnson's claim for wages, perhaps particularly because Johnson did not report her income as taxable.