Louisiana Injury Lawyer Blog

The Louisiana State Bar Association posted the following notice today regarding advertising legal services ethically in Louisiana in the wake of an accident or disaster.pdf:

"In an effort to assist our lawyers in their efforts to offer legal assistance to members of the public in the days, weeks and months that follow an accident or disaster, we would remind lawyers to review the Louisiana Rules of Professional Conduct and state law before attempting to advertise for and/or contact prospective clients in connection with the accident or disaster, paying particular attention to the items listed below.

"Additionally, as a benefit of LSBA membership, the Louisiana State Bar Association's Ethics Advisory Service and LSBA Ethics Counsel are available to provide FREE confidential, informal, non-binding advice and opinions on matters regarding a lawyer's own prospective conduct--including questions about proposed lawyer advertising and/or unsolicited written communications. Also, all advertisements and unsolicited written communications that must be filed and evaluated for compliance as per Rule 7.7 should be directed to LSBA Ethics Counsel; information on the filing requirements and filing process is available on-line, 24/7, at: www.LSBA.org/LawyerAdvertising. LSBA Ethics Counsel, Richard P. Lemmler, Jr., can be reached at direct dial (504) 619-0144 or RLemmler@LSBA.org."

After asking the East Baton Rouge Parish jury for $1.1 million, Louisiana Association for Justice President (LAJ) President Donald W. Price of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews obtained a $2.1 million medical malpractice jury verdict on April 30, 2010. The East Baton Rouge Parish jury found a local pediatrician negligent for prescribing the wrong antibiotic to a Zachary, Louisiana child that caused Stevens-Johnson syndrome and led to the loss of 65% of her skin. The pediatrician told the patient's mother he was prescribing Omnicef for a sinus infection, but actually prescribed Septra DS, a sulfa antibiotic not approved for the treatment of sinus infections.

"It's not something that had ever happened to me before," Donald Price said of the jury awarding more than he requested. "We were gratified." Unfortunately, Louisiana's $500,000 medical malpractice cap will prevent recovery of the entire jury verdict.

Continue reading "Baton Rouge Louisiana Personal Injury Lawyer Obtains $2.1 Million Medical Malpractice Jury Verdict" »

I am sure that you, like me, have been sickened over the last few days by the developing events at BP's Deepwater Horizon well site. What began as an inconceivable tragedy for the human victims has, amazingly, expanded further into an environmental catastrophe that threatens not only Louisiana, but the entire Gulf coast.

As lawyers, we realize that many people will be in need of legal services as a result of these events. But we should be careful to ensure that this disaster for our state is not compounded by a disaster for our profession.

The Louisiana Association for Justice (LAJ) fully supports the rights of the public to obtain information about legal services, and it supports the rights of lawyers to provide that information in a manner consistent with the Louisiana Rules of Professional Conduct. We should all do everything we can to make sure those rules are followed, for the good of the public and our profession.

Anyone who has direct knowledge of specific instances of unauthorized practice of law, runner-based solicitation, or improper direct contact by lawyers should report the conduct directly to the Louisiana Office of Disciplinary Counsel.

Louisiana will get through this latest challenge. It is my hope that, as was the case with Hurricanes Katrina and Rita, our membership will not be part of the problem, but will instead be helping to provide solutions.

Sincerely,

Donald W. Price
Due', Price, Guidry, Piedrahita & Andrews
LAJ President

Law 360 interviewed Baton Rouge Maritime attorney, Kirk A. Guidry, of the Baton Rouge injury law firm of Due', Price, Guidry, Piedrahita & Andrews. The article written by Jesse Greenspan appeared on April 23, 2010, and is entitled Much Litigation Expected After Oil Rig Explosion. Kirk Guidry told Law 360 that any personal injury or wrongful death cases would likely be brought under the Jones Act and would therefore not be removable to federal court. Kirk Guidry also stated that the first big issue that would have to be resolved is the limitation of liability issue, which will be argued in Federal Court.

Continue reading "Baton Rouge Maritime Attorney Interviewed about BP Oil Rig Explosion and Oil Leak Litigation" »

Louisiana State Police Traffic Accident Crash Reports are now available online at the Louisiana State Police website. According to the LSP website, "you can easily find official reports for crashes that have occurred in every Parish across the state. Once you have found your report, you can see a limited preview and then purchase that report to see the entire document. After completing purchase of a report, you will be able to instantly download a permanent PDF copy of the complete report." In order to search for an accident report, the user must enter the first and last name of the driver or pedestrian involved in the accident, the parish where the accident occurred, and the date of the accident. A log-in must be created to finalize the $8.50 credit card transaction.

Continue reading "Louisiana State Police Traffic Accident Crash Reports Available Online" »

In Torres v. Louisiana Shrimp and Packaging Company, 09-2792 (La.4/9/10), the Louisiana Supreme Court reversed the lower courts' ruling granting defendant's exception of prescription, because a timely filed tort suit interrupts the running of prescription on a workers' compensation claim, and because once a party withdraws a plea of prescription, or renounces prescription, he may not re-urge the plea:

"WRIT GRANTED. It is not disputed by the parties that a timely filed tort suit interrupts the running of prescription on a workers' compensation claim. Isaac v. Lathan, 01-2639, pp. 4-6 (La.App. 1 Cir. 11/8/02), 836 So.2d 191, 194-95. In this case, the tort suit filed by the relator against the respondent was dismissed by judgment of the trial court after the withdrawal of the respondent's prescription exception. When a party withdraws a plea of prescription in the trial court, he thereby renounces the prescription originally pleaded and, having thus abandoned it, may not thereafter re-urge it. Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972). Accordingly, the timely tort suit interrupted the running of the prescriptive period for filing relator's workers' compensation claim. Moreover, having abandoned the prescription objection to the timeliness of the tort suit, respondent may not now reurge it. Therefore, the ruling by the trial court granting respondent's exception of prescription, and the court of appeal decision affirming the ruling, are reversed. The case is remanded to the office of workers' compensation for further proceedings consistent with the views expressed herein."

This Louisiana legal update is brought to you by the Baton Rouge, Louisiana injury lawyers at Due', Price, Guidry, Piedrahita & Andrews.

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" »

On my way back from a meeting in North Louisiana on Wednesday, March 31, 2010, I was detoured off of U.S. Highway 61 and around downtown St. Francisville, Louisiana, due to a overturned 18 wheeler that had spilled toxic and hazardous chemicals into the adjacent ditch in the middle of town. The 18 wheeler was traveling through a construction zone when its rear tires dropped off the pavement, resulting in a roll-over event. U.S. Highway 61 was closed for more than eight hours while emergency personnel cleaned up thousands of gallons of a 10 percent solution of sodium hypochlorite, a bleach and disinfectant. Four nearby homes were evacuated, but no injuries were reported. Since no injuries were reported, the 18 wheeler driver and company will most probably escape civil liability.

Prior to the 1996 Mike Foster Louisiana tort reform legislative package, transporters of toxic and hazardous materials were liable for punitive or exemplary damages for their wanton and reckless disregard for the safety of the public. So, prior to 1996, if the 18 wheeler driver whose big rig overturned and spilled toxic and hazardous chemicals in downtown St. Francisville, had acted recklessly in operating his 18 wheeler, he and the commercial company he worked for could be "punished" for spilling the chemicals even if no one was seriously injured. In this post-tort reform era, the 18 wheeler driver and company get off scot-free so long as no one is injured, and even if someone is injured, the drive rand company receive no additional punishment for the wanton and reckless conduct. Is this fair? Is the insulation of commercial carriers from punishment more important than the safety of the public? Perhaps our Legislature should revisit the 1996 changes to our law. In that vein, Senate Bill 547 has been introduced in the 2010 Regular Session of the Louisiana Legislature by Senator Robert Marionneaux, to enact Louisiana Civil Code article 2315.8, which is proposed to read as follows:

"In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a person's willful and wanton misconduct."

Continue reading "Baton Rouge Louisiana Injury Lawyer Affected by 18 Wheeler Chemical Spill" »

The $350,000 non-economic cap on medical malpractice damages in Georgia was declared to be an unconstitutional violation of the right to jury trial by a unanimous Georgia Supreme Court on March 22, 2010. The Georgia Supreme Court ruled that the 2005 law "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function. *** Consequently, we are compelled to conclude that the caps infringe on a party's constitutional right. *** The very existence of the caps, in any amount, is violative of the right to trial by jury." Adam Malone, the Atlanta, Georgia lawyer who represented the plaintiff in the successful constitutional challenge stated that: "The bedrock of our democracy depends upon our ability to self govern at the ballot box and in the jury box. *** Any attempt by the government to invade either is an assault on what separates America from the rest of the world."

Louisiana's $500,000 cap on medical malpractice damages passed the Louisiana Legislature in the 1970's and includes both non-economic and loss of earnings and support. In 1985, the Louisiana Supreme Court in Sibley v. Board of Supervisors, 477 So.2d 1094 (La.1985), declared Louisiana's cap on medical malpractice damages constitutional. Louisiana's medical malpractice cap was later declared unconstitutional by the Louisiana Third Circuit Court of Appeal in 2006 in the Taylor and Arrington cases, but the ruling was vacated by the Louisiana Supreme Court on February 2, 2007 on procedural grounds and remanded to the trial court for another trial on the constitutional challenge. Representatives of the medical industry, trial lawyers, and the Louisiana Legislature had numerous meetings in an attempt to reach a consensus on increasing Louisiana's cap on medical malpractice damages, while at the same time, reducing the number of frivolous medical malpractice claims and reducing the costs associated with the medical review panel process. Not surprisingly, no consensus could be reached.

Continue reading "Georgia Medical Malpractice Cap on Damages Ruled Unconstitutional" »

On March 16, 2010, the Louisiana Supreme Court in Menard v. Lafayette Insurance Company, 09-1869, found that the Louisiana Third Circuit Court of Appeal erred in its application of the manifest error standard of review in increasing a jury's award for future medical expenses in a personal injury case. The jury awarded plaintiff $88,373.73 for future medical expenses. The Louisiana Third Circuit Court of Appeal found internal inconsistencies in the jury's award and increased it to $1,413,508.75. The Louisiana Supreme Court found no such inconsistencies, but rather found two opposing views that provided a reasonable basis for the jury's decision.

The Louisiana Supreme Court set forth the law supporting an award for future medical expenses as follows: "Under Louisiana law, a tort victim may recover past (from injury to trial) and future (posttrial) medical expenses caused by tortious conduct. The victim must, however, establish he incurred past medical expenses in good faith as a result of his injury and future medical expenses will more probably than not be incurred. A plaintiff shows the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Importantly, future medical expenses must be established with some degree of certainty. Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence the future medical expenses will be medically necessary. Notably, it is well acknowledged an award for future medical expenses is in great measure highly speculative and not susceptible to calculation with mathematical certainty. It follows, therefore, such awards generally do not involve determining the amounts, but turn on questions of credibility and inferences, i.e. whose experts or other witnesses does the jury believe?"

Continue reading "Louisiana Supreme Court Weighs In On Evidentiary Basis for Awards for Future Medical Expenses" »

The Louisiana Supreme Court on March 16, 2010, reversed in part and affirmed in part the matter of Brewer v. J.B. Hunt Transport, 2009-1408 c/w 2009-1428. Brewer was permanently and severely injured when his pick-up truck rear-ended and rode underneath an 18 wheeler on I-12 in Livingston Parish, Louisiana.

The Twenty-First Judicial District Court for the Parish of Livingston entered judgment on the jury verdict finding Brewer 100% at fault for the rear-end collision. The Louisiana First Circuit Court of Appeal reversed based on the trial court's legal error in allowing evidence of Brewer's unrelated prior bad acts (pre-accident drug use and arrests) into evidence, and on de novo review, found Brewer 40% at fault for the rear-end collision and the 18 wheel tractor trailer driver 60% at fault for suddenly changing lanes in a construction zone and into Brewer's lane of travel. The Louisiana First Circuit Court of Appeal awarded a total of $10,677,634.93 in special damages and $2,500,000.00 in general damages for Brewer's injuries, which included a traumatic injury to the right anterior temporal lobe of his brain, resulting in bed-wetting, seizures, short-term memory deficits, a lowered IQ, personality changes, and disinhibition.

The Louisiana Supreme Court found that the Louisiana First Circuit Court of Appeal's de novo review of the trial court judgment was inappropriate because the bad acts evidence was directly related to the central issue of damages and not to the central issue of liability, which was the basis for the jury's ultimate conclusion. However, the Louisiana Supreme Court still determined that the jury's allocation of fault between the parties was manifestly erroneous. The Louisiana Supreme Court reversed the allocation of fault and reassessed fault 70% to Brewer and 30% to the 18 wheel tractor trailer operator.

Continue reading "Livingston Parish Louisiana 18 Wheeler Tractor Trailer Operator 30% at Fault for Negligently Changing Lanes" »

The State of Louisiana's Office of Risk Management is being privatized. Louisiana Commissioner of Administration Angele Davis announced that F.A. Richard & Associates, Inc. (FARA) will take over the adjusting and management of all property and casualty claims and loss prevention for the State of Louisiana's self-insured risks. It is estimated that the State of Louisiana will save at least $20 million over five years.

According to the press release issued by the Louisiana Governor's office, Office of Risk Management (ORM) Director Bud Thompson said, "I commend my staff for their yeoman's work in the research, preparation and execution of this RFP, especially their commitment to evaluate the proposals objectively and analyze the advantages, disadvantages and projected cost-savings to our in-house program in the long-term best interest of the State. Anticipated advantages of privatization include access to state-of-the-art technology improvements; reduced claims and program costs; management flexibility; and the transition from day-to-day claims and loss prevention to enterprise risk management.

It is estimated that 85 Louisiana state employees will lose their state jobs, but those employees will be offered positions by FARA at salaries based on its existing pay scales.

Continue reading "State of Louisiana Office Of Risk Management to be Privatized" »

President Barack Obama nominated former Louisiana State Bar Association President Elizabeth Erny Foote to serve as district judge on the United States District Court for the Western District of Louisiana. This brings the total number of pending federal district court nominees awaiting Senate approval in Louisiana to two. The other nominee is pending in the United States District Court for the Middle District of Louisiana, where the case load has become so high that approximately 100 cases were recently transferred to a district judge in the Western District of Louisiana. Louisiana's republican senator recently announced that he would not block the Louisiana nominees.

Louisiana Supreme Court Chief Justice Catherine "Kitty" Kimball continues to rapidly improve after successful surgery to remove a blockage which caused an ischemic stroke on Sunday, January 10, 2010.

Chief Justice Catherine Kimball continues to progress in her recovery from a stroke she suffered last Sunday, January 10, 2010. After being released from ICU last Wednesday, and spending a short time in a private room, Chief Justice Kimball was discharged from Our Lady of the Lake Regional Medical Center in Baton Rouge on Friday. She was admitted to a Rehabilitation Hospital to begin post-stroke therapy, and her condition improves daily.

On January 19, 2009, the Louisiana Supreme Court released the following update: "The Kimball family is very thankful for everyone's concern and prayers. In particular, Chief Justice Kimball and her family wish to express their gratitude for the life-saving actions of Acadian Ambulance, and her doctors and their teams at Our Lady of the Lake, especially Dr. Keith Hodge, Dr. Jon Olson, Dr. Dwayne Anderson and Dr. Scott Shuber. They also wish to thank the Our Lady of the Lake team for the excellent care throughout her stay, with special thanks to John Paul Funes with the Our Lady of the Lake Foundation."

Chief Justice Kimball was born in Alexandria, Louisiana, on February 7, 1945, and now resides in Ventress, Louisiana. Justice Kimball received her law degree from the Louisiana State University Law Center in 1970, after which she was a Law Clerk to Judge Nauman Scott of the United States District Court for the Western District of Louisiana. From 1971 - 1973, she was a Special Counsel with the Louisiana Attorney General's Office, and from 1973 -1981, she was General Counsel to the Louisiana Commission on law Enforcement and Administration of Criminal Justice, a portion of which time she also served as an Assistant District Attorney for the 18th Judicial District. Chief Justice Kimball was elected as a District Judge for the 18th Judicial District Court in 1982 and served as Chief Judge from 1990 - 1992, when she was elected as the first female Associate Justice to the Louisiana Supreme Court. On January 1, 2009, Justice Kimball became the first female Chief Justice of the Louisiana Supreme Court.

Esteemed LSU Law Pofessor Emeritus, Saul Litvinoff, died the morning of January 5, 2010 at the age of 84. Professor Litvinoff, a former Boyd Professor, joined the LSU Law Center in 1965 and became director of the Center for Civil Law Studies in 1976. He retired in 2009. Professor Litvinoff was instrumental in drafting much of the Louisiana Civil Code, including the sections on contracts, obligations and sales. Former student and Baton Rouge injury lawyer, Scott Andrews, recalls Professor Litvinoff's photographic memory and quick wit: "Professor Litvinoff had every student's name memorized the first day the seating chart was made available and he referenced his textbooks by page number even though he never brought a book to class. His students were mesmerized by his genius and humor." The civil law community lost a great friend on Tuesday. We will miss you Professor Litvinoff.