Louisiana Injury Lawyer Blog

"Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." Louisiana Civil Code article 2315.

Article 2315 is the foundation of Louisiana Tort Law. This Louisiana Civil Code article is so important that on the first day of of my Torts I class at the LSU Law Center, Professor Frank Maraist instructed our class that we would not pass the class without being able to write Article 2315 verbatim on the final exam.

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In Quinn v. State of Louisiana, DOTD, 2009-0085 (La.App. 1 Cir. 12/23/09), writ denied, 2010-358 (La.4/23/10), the Louisiana First Circuit Court of Appeal, in an opinion not designated for publication, held that once the Louisiana Department of Transportation and Development (DOTD) chooses to exercise the privilege set forth in 23 U.S.C. §409, that protects from discovery any reports, surveys, schedules, lists or data compiled or collected for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites and hazardous roadway conditions, and which prevents the plaintiff from discovering any evidence of prior accidents at a location involving an alleged highway defect, that it follows that DOTD is then precluded from offering any evidence establishing an absence of other accidents at the same location at trial.

According to Baton Rouge, Louisiana highway defect attorney Scott Andrews, this is a major development in the law relating to road hazards and finally levels the playing field. In order to impose liability on DOTD for Louisiana's defective highways and roads, the accident victim must prove that DOTD had actual or constructive notice of the defective condition. For years, DOTD has consistently argued that the lack of prior accidents at certain locations proved that the highways and roads at the locations did not contain defects. Yet, the accident victims and their attorneys are prohibited from discovering and introducing at trial, evidence of prior accidents. DOTD cannot have its cake and eat it too. If plaintiffs cannot discover and use the evidence of prior accidents, then DOTD should not be able to use evidence of the lack of prior accidents to prove no defect, all the while preventing plaintiffs from verifying the accuracy of DOTD's representation that no accidents occurred.

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

Continue reading "Louisiana DOTD Can Not Hide Behind 23 U.S.C. §409 and Still Claim an Absence of Prior Accidents " »

The Louisiana Supreme Court issued the following Per Curiam opinion in Williamson v. Hebert, 10-0071 (La. 4/5/10), regarding the interruption of prescription in a medical malpractice case based on the discovery rule:

"In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, 511, we explained 'a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.' Plaintiff in the instant case clearly had some apprehension something was wrong following her surgery, as she consulted two different doctors regarding her condition. However, both of these doctors assured plaintiff her condition would continue to improve, with one of the doctors indicating her symptoms might take two years to resolve. When plaintiff's symptoms failed to improve by August 2002 (two years after the August 3, 2000 surgery), plaintiff performed computer research, and learned for the first time her symptoms may have been caused by malpractice. Plaintiff's August 16, 2002 complaint was filed within one year of her discovery of this alleged malpractice."

The Louisiana Supreme Court granted plaintiff's writ and reversed the decision of the Louisiana Third Circuit Court of Appeal. The judgment of the district court denying the defendant's exception of prescription was reinstated and the case remanded to the district court for further proceedings. This is a huge victory for victims of medical malpractice who prudently wait to see if their condition will improve before rushing to file a medical malpractice claim that might otherwise be frivolous.

Continue reading "Louisiana Supreme Court Applies Discovery Rule to Interrupt Medical Malpractice Prescription" »

The Louisiana First Circuit Court of Appeal, in an opinion not designated for publication, reaffirmed that once a party has been dismissed from the litigation by a summary judgment, that former party cannot be named on the verdict form and cannot have any percentage of fault attributed thereto.Quinn v. State of Louisiana, DOTD, 2009-0085 (La.App. 1 Cir. 12/23/09). See also Bowie v. Young, 2001-0715 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 569-570, writ denied, 2002-1079 (La.6/21/02), 819 So.2d 335; and Duzon v. Stallworth, 2001-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, 853-854, writs denied, 2003-0589 (La. 5/2/03), 842 So.2d 1101, 1110 ("when the court determines that a party or nonparty is not negligent [is dismissed on summary judgment], he may not be considered in the allocation of fault, and subsequent evidence may not be admitted to establish his fault.").

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

The Louisiana First Circuit Court of Appeal held that an award for future medical expenses can be supported by testimony that future medical expenses will be required, even in the absence of any evidence as to the specific cost of such future treatment. It is proper for the trial court to determine future medical expenses on the basis of the record, past medical expenses, and other evidence. Since the plaintiff's past medical expenses exceeded $326,000, an award of $150,000 for future medical expenses was proper. Goza v. Parish of West Baton Rouge, 2008-0086 (La.App. 1 Cir. 5/5/09), 21 So.3d 320, writ denied, 2009-2146 (La.12/11/09), citing Levy v. Bayou Indus. Maintenance Services, Inc., 03-0037 (La. App. 1 Cir. 9/26/03), 855 So.2d 968, 975, writs denied, 03-3161, 03-3200 (La. 2/6/04), 865 So.2d 724, 727.

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

Time-computation amendments to the Federal Rules of Civil Procedure, Criminal Procedure, and Appellate Procedure went into effect on December 1, 2009.

These amendments implement a consistent method of calculating time periods throughout the federal rules, a method that counts every day, instead of excluding weekends and holidays for some periods but not others. Most of the amendments lengthen time periods by a few days, to offset the effect of counting weekends and holidays and to express time periods of less than 30 days in 7-day multiples. Most of the periods either remain the same or are lengthened: 5-day periods become 7-day periods, and 10-day periods become 14-day periods.

Congress has enacted changes to 28 statutory time periods affecting court proceedings to be consistent with this new, simplified computation approach. The United States District Courts for the Middle District of Louisiana, Western District of Louisiana and Eastern District of Louisiana revised their local rules to be consistent with the national rule and statutory changes.

The Louisiana Fourth Circuit Court of Appeal held that the plaintiff has the absolute right to dismiss with prejudice an original defendant and to secure an order prohibiting all defendants from filing subsequent third party demands against the previously dismissed defendant. DiBenedetto v. Noble Drilling Co., 2009-0073, 2009-0464, 2009-1025 (La.App. 4 Cir.10/21/09), ___ So.3d___.

This Louisiana personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

In a Louisiana medical malpractice trial, defense counsel had an ex parte meeting with a prior treating physician who was not a party to the case to go over the plaintiff's medical records, without a medical authorization allowing verbal communication with the health care provider and without advance notice to the plaintiff's lawyer. Nevertheless, the trial court allowed the physician's testimony at trial over plaintiff's objection. The Louisiana Third Circuit Court of Appeal held that the testimony of the treating physician should have been excluded and found that the improperly admitted testimony tainted the jury's verdict. Ernst v. Taylor, 08-1289 (La.App. 3d Cir. 5/6/09), 17 So.3d 981, writ denied, 09-1262 (La.9/18/09), 17 So.3d 977, citing Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, writ granted, 05-756 (La. 5/13/05), 902 So.2d 1000, writ reversed on other grounds, 05-756 (La. 2/22/06), 924 So.2d 112 and Wood v. Am. Nat'l Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764.

See also Boutte v. Winn-Dixie of La., Inc., 674 So.2d 299, 306-07 & n.12 (La.App. 3d Cir. 1996), writ denied, 96-1936 (La. 11/8/96), 683 So.2d 268 (the impermissible contact deprived plaintiff of her right to a fair and impartial hearing); and Johnson v. Apeck Construction, Inc., 96-1283 (La. App. 3 Cir. 3/5/97), 692 So.2d 476, 481 ("[c]ontacts by an adverse party or by its representative of a treating physician will not be tolerated, as they strike at the very heart of our system of civil justice." cf. Hortman v. Louisiana Steel Works., 96-1433 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, 629, Kuhn, J. concurring ("Although contacting an opponent's treating physician is not in violation of the physician-patient privilege, it clearly impugns upon the Code [of Professional Conduct]'s mandate of professionalism. The practice of law should be a search for the truth, through honorable and professional means long established but perhaps forgotten.").

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

The Louisiana First Circuit Court of Appeal held that where the general employer's business is to loan out his or her employees and equipment to others, the general employer's business is being furthered even if he does not control the details of the work. The special employer benefits because it is his work that is being done as well. The relevant enterprise benefited by the work consist of a combination of the general and special employers, who are liable in solido for damages occasioned by the borrowed employee. This applies where a hospital is the general employer of a nurse and an independent contractor physician is "in charge" of the delivery room. Grimes v. LAMMICO, 2009-0292 (La.App. 1 Cir. 9/11/09), citing Morgan v. ABC Manufacturer, 97-0956 (La. 5/1/98), 710 So. 2d 1077, 1080.

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.

The Louisiana First Circuit Court of Appeal held that an injury victim does not fail to mitigate his damages when he refuses to undergo surgery which would not significantly alleviate his disability or which carries risks of failure, more scarring and pain, or when the treatment is painful, or when he is unable to pay for the treatment. Flemings v. State, 2007-1290 (La.App. 4 Cir. 8/26/09), 19 So.3d 1220.

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Due', Price, Guidry, Piedrahita & Andrews.