Articles Posted in General Negligence

Tia Coleman is calling the defense of Branson Duck Vehicles and Ripley Entertainment “callous and calculated” following a duck boat accident on July 19, 2018. Nine of Coleman’s family members and eight others were killed when the amphibious boat capsized during a storm. Ten days later, Coleman and her attorneys filed a $100 million wrongful death suit against the two companies, but the defendants have cited an 1851 law known as the Shipowners’ Limitation of Liability Act.

According to the law, a shipowner may limit damage claims following an accident to the value of the vessel and any pending freight so long as he can prove that he lacked knowledge of the vessel’s problem beforehand. Because the duck boat in question was a total loss with no value following the accident and there was no pending freight, Ripley and Branson’s attorneys are claiming zero liability. Needless to say, the 167-year-old law was originally written for a different purpose. At the time, maritime insurance did not exist. Thus, in creating the law, Congress hoped to encourage vessel purchases and maritime transport by guaranteeing protection for sea-vessel owners in case of an accident.

Following a Coast Guard investigation of the accident, probable cause of negligence was found on the part of the boat’s captain, though the defense contests this finding. On the basis of the finding, Coleman and her attorneys filed an additional federal lawsuit in September against the boat’s operator and manufacturer. “This tragedy was the predictable and predicated result of decades of unacceptable, greed-driven and will ignorance of safety by the boat industry,” the suit states. If such an argument holds and the accident is proven to have been the “predictable” result of “willful ignorance”, it is possible that the Shipowners’ Limitation of Liability Act will be deemed inapplicable in this particular case.

Royal Caribbean International may have to pay $20.3 million to a former employee, who badly injured her hand while working on board a Miami-based cruise line, Voyager of the Seas, which was sailing out of Barcelona, Spain. In August of 2008, Lisa Spearman, a marketing and revenue manager for the cruise ship, severely injured her hand after attempting to help a nurse. While in port, the cruise ship conducted a routine fire safety drill. During this drill, some of the vessel’s semi-water right doors closed and one of the ship’s nurses she tripped and fell when she attempted to open and pass through one of the doors. The plaintiff jumped in to help the nurse, but when the plaintiff placed her hand on the door handle in an attempt to keep the door open, the door swung back and pinned the plaintiff’s hand. The nurse was unharmed, but the plaintiff suffered a broken middle finger, broken index finder, and the nails on both fingers were ripped from the cuticles.

After the injury, Royal Caribbean referred Spearman to a doctor in Barcelona. This doctor misdiagnosed her condition and incorrectly treated her injuries. Spearman participated in physical therapy for two years following the incident, while Royal Caribbean paid her a daily disability payment of $25.00, the amount stipulated in her employee disability insurance coverage. Two years after her injury, Royal Caribbean dismissed Spearman, stating that her injury prevented her from performing necessary safety tasks, such as lifting 50 pounds.

In 2016, Spearman brought suit against Royal Caribbean alleging the company was negligent regarding the door, failed to provide proper medical care, fired her for a non-performance related reason, and breached her employment contract by refusing to pay her full wages. After a three-week jury trial, the jury found Royal Caribbean at fault and ordered the cruise line to pay the plaintiff $20.3 million in damages, lost wages, and future medical expenses. Royal Caribbean will be appealing the decision of the trial court.

In Freeman v. Fon’s Pest Management, Inc., the Louisiana Supreme Court found that the lower courts erred in granting the defendant’s motions in limine and striking the expert testimony of four of the plaintiff’s experts. The lawsuit alleged that the defendant used a pesticide which contained a chemical called fipronil to treat plaintiffs’ home for termites. Following the treatment, plaintiffs began to suffer headaches, nausea, dizziness, and confusion. To prove causation, plaintiffs retained four different experts – three toxicologists and one Certified Industrial Hygienist. In response, the defendant pest management company filed pre-trial motions to exclude the testimony of plaintiffs’ experts, claiming their testimony did not meet the standard for admissibility under Louisiana Code of Evidence article 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.

The district court granted the defendant’s motions in limine, striking plaintiff’s experts because it found: 1) none of the proposed experts had expertise regarding fipronil; 2) none of the four experts had written or contributed to any peer-reviewed articles regarding the effects of fipronil (or any pesticides) in humans; 3) none of the four experts attempted a dose reconstruction to determine the amount of exposure to fipronil allegedly suffered by the plaintiffs; 4) none of the experts reviewed any biological or air quality data to establish the plaintiffs were exposed to fipronil; and 5) no articles or studies reviewed by the experts proved any causal connection between fipronil and the plaintiff’s claimed injuries. In addition, the testimony of all four experts conflicted on the effects of fipronil exposure.

The court of appeal affirmed.

A jury in the United States District Court for the Western District of Louisiana-Lafayette Division returned a verdict of $4,271,300.00 to an Iberia Parish resident who was injured while working at a Cameron facility at the Port of Iberia. Jerome Moroux, partner at Broussard & David, LLC, was lead counsel for the plaintiff. This is the fourth consecutive seven or eight figure verdict by Broussard & David, LLC.

The plaintiff was an employee of a trucking company/contractor on the day of the accident. Plaintiff’s employer had been contracted by Cameron to assist Cameron in loading a 300,000 pound piece of equipment on to plaintiff’s employer’s transporter. The job was shared between the companies, with Cameron performing the crane lift and Cameron/plaintiff’s co-employees working on securing the load. At the time of the accident, the plaintiff was kneeling on the transporter and in the process of using a ratchet binder to secure the equipment to the transporter. While operating the binder, the ratchet binder came apart and plaintiff fell four feet to the ground. There was evidence that one of Cameron’s employees had handled the ratchet binder and given it to plaintiff’s co-employee before the accident.

Cameron denied liability completely, arguing that they had hired plaintiff’s employer to perform the work based on its experience and expertise; further, Cameron argued, that the failure of the ratchet binder was Bayard’s employer’s  fault—not Cameron’s. The evidence proved that Cameron actively participated in the job and was operating the crane while the accident happened. At trial, plaintiff offered expert and lay testimony confirming that, under both company and industry standards, the crane operator had several duties and responsibilities, including insuring that the proper tools for the job were examined before the job began and that the plaintiff’s employer performed and attended pre-job safety briefings. Secondly, Cameron failed to follow its own company rules with respect to pre-job planning. Plaintiff’s safety expert was Mr. Robert Borison.

LAKE CHARLES, LA – November 16, 2017

A Calcasieu Parish jury awarded $5,451,395.00 to a Venezuelan native who injured his neck and back when his Hummer SUV hit a cow on a rural state highway.

On the night of May 28, 2014, the plaintiff was driving on Louisiana Highway 27, headed home after a hitch working offshore as a petroleum engineer. Multiple cows appeared in the road as he was passing another vehicle on a dark and unlit stretch of Highway 27 which was adjacent to property owned by defendant Sweet Lake Land & Oil Company, LLC.

A slip and fall accident in Las Vegas, Nevada resulted in an eleven-day trial where the jury returned a verdict of more than $16 million to a plaintiff who fell in a Lowe’s Home Center, fracturing her skull and causing a hemorrhage in the front of her brain. Because of her injuries, she has suffered from multiple long-term medical issues such as chronic neck pain, headaches, anxiety and depression, issues with balance, and she has forever lost her senses of taste and smell.

On the date of the fall, the plaintiff, Kelly Hendrickson, was walking through a Lowe’s garden department when she was purchasing plants for her new home. At the same time, the watering system for the plants in the store created puddles in the areas where customers walked. Although a warning cone was placed within the puddle itself, there were no warnings in the surrounding areas of the puddle and the cone was not visible to Hendrickson when she turned the corner into the aisle where she fell.

After plaintiff’s fall, three different Lowe’s employees passed her without offering to help. Another customer and her daughter came to her aid. As Hendrickson waited for further help to arrive, she asked for a bottle of water, which the cashier required her to purchase. Help arrived and she was taken to the hospital. Upon examination in the emergency room, medical professionals discovered her injuries, including a skull fracture and subarachnoid hemorrhage.

More manufacturing defects with replacements airbags, giving rise to products liability claims, have required an automotive replacement parts corporation to issue yet another recall, affecting as many as 230,000 vehicles. The vehicles affected by BMW AG’s most recent recall had replacement airbags manufactured by Petri, a German company owned by Takata Corp., installed after a crash. The inflators used, called the Takata PSDI-4 inflators, can explode in a crash—even one at low speed—and spray those occupying the vehicle with metal shards. These regulators are filled with ammonium nitrate, an explosive chemical with power similar to dynamite. If the chemical degrades over time, the airbags can deploy with so much force that the metal casings are destroyed, sending the metal shards into the unsuspecting vehicle occupants. Around 14,600 of these inflators were shipped to the U.S. between 2002 and 2015 for replacement use. This recall is one of the largest recalls in motor vehicle history, due in part to the 17 deaths these vehicles have caused worldwide and brought to the forefront by products liability lawyers. In the U.S. alone, these airbags have been linked to 11 deaths and 180 injures. Several vehicle drivers and passengers have sued Takata claiming injuries from the metal shrapnel. The Center for Auto Safety’s executive director, Michael Brooks, has said the National Highway Traffic Safety Administration (“NHTSA”) should investigate whether these airbags were used by other vehicle manufacturers. This is needed, as the airbags may have been used by a dozen or more car manufacturers, including Honda, GM, and Volkswagen. BMW already has vehicles with defective airbags under recall, bringing the total to over 1.5 million cars. The car models affected by this most recent recall are some 2001-2002 X5 SUVs, 2000-2002 3 Series, and 2001-2005 5 Series models.

Takata Corp. has also recently entered into an agreement to plead guilty in an investigation by the DOJ concerning the exploding airbags. This settlement comes with a $1 billion payment. Of the $1 billion payment, $25 million will go to the U.S. and $975 million will be paid as restitution to carmakers and those injured by the airbags. Specifically, Takata’s settlement means it will admit to misleading industry regulators, car manufacturers, and ultimately the consumers about the safety of the replacement airbags. This settlement also means Takata will be independently monitored for compliance for the next three years. The recall tied to the airbags has already plagued the corporation and is expected to surpass 100 million. Just two years ago, the corporation signed an agreement to pay a $70 million fine to U.S. regulators because of selective, inaccurate, and incomplete information provided concerning the airbag regulators. The NHTSA has said that this fine could rise to $200 million if the corporation does not finish the recalls within three years. This process will be long and arduous for Takata, as there are approximately 46 million recalled airbag inflators in 29 million vehicles in the U.S. alone. This number could rise over the next three years, affecting as many as 42 million consumer vehicles and 69 million inflators.

Volkswagen is experiencing similar recall problems, issuing a recall affecting hundreds of thousands of Audi models. These recalls stem from two airbag defects and overheating coolant pumps. One of the airbag recalls affects approximately 234,054 Audi Q5 models from 2011 to 2017. This recall stems from a sunroof drainage issue which can corrode the airbag’s inflator canister causing it to rupture and spray the vehicle occupants with metal shards. The second airbag recall affects 5,901 Audi and Volkswagen cars from 2017 and 2018 Audi A4, A6, A7, Volkswagen Golf, e-Golf, and Tiguan models. These airbags may not deploy properly. These models may also experience issues with the seat-belt pretensioners, the device designed to pull a seat belt tight in a crash, not working properly.

Three parties have sued a truck driver and his employer for injuries and damages sustained in a crash earlier this year.

On June 24, Plaintiffs Marvin Gaitlin and Tasha Bodie, both individually and on behalf of her minor daughter Mykalia Collins, brought suit in the United States District Court for the Eastern District of Louisiana against Sam Grace, EPES Transportation Systems Inc., and National Fire Insurance Company of Pittsburgh. The suit alleges that Grace negligently operated his vehicle and that EPES negligently entrusted the tractor-trailer to Grace.

On February 25, Gaitlin was stopped in traffic on Manhattan Boulevard, near the intersection of Ute Drive in Jefferson Parish. Bodie and Collins were Gaitlin’s passengers at the time, and their vehicle was directly behind the tractor-trailer driven by Grace and owned by EPES Transportation. According to the suit, Grace suddenly reversed his tractor-trailer and backed into the front of Gaitlin’s vehicle, leaving him no time to avoid the collision. Grace then proceeded to back up his vehicle again, striking Gaitlin’s vehicle a second time. As a result, the parties suffered severe and debilitating mental and physical injuries.

Louisiana’s medical malpractice damage cap, set at $500,000.00 in 1975, could see a significant change in the scope of its application thanks to several lawsuits set to be argued before the Louisiana Supreme Court.

In 1975, the Louisiana Medical Malpractice Act set a $500,000.00 statutory maximum for any amount recoverable as damages (other than medical expenses) in a Louisiana medical malpractice suit.  However, there are instances of negligence which occurs in a medical context that can fall outside of the purview of the Louisiana Medical Malpractice Act.

The Louisiana Supreme Court is currently considering whether a hospital’s “negligent credentialing” of its doctors is subject to the statutory cap of $500,000.00.  In layman’s terms, the Court will decide whether administrative decisions made by hospital personnel are considered malpractice under Louisiana law.

A lawsuit was filed in the 24th Judicial District Court in Gretna, LA over an alleged dog attack which took place in March of this year.

Kevin Karrigan, a United States Postal Service employee, has sued Louis Alonso Gomez and ABC Insurance Co. for injuries sustained when Gomez’s dog purportedly bit Karrigan.

According to the suit, Karrigan was delivering mail on Presidential Street in Jefferson Parish when Gomez’s dog escaped its enclosure and attacked Karrigan. The suit claims that the fence enclosing the dog was defective, which allowed the animal to escape. The complaint further alleges that Gomez negligently failed to maintain the fence in a working manner, failed to maintain control of his dog, and failed to provide a warning of the danger.

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