Articles Posted in Louisiana Personal Injury Law

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On June 27, 2011, the United States Supreme Court in Philip Morris v. Jackson, 10-735, denied a request from Big Tobacco to overturn a 2004 Louisiana judgment totaling $270 million to fund a ten-year smoking cessation program that will include medications, telephone quit lines, health intervention systems, and intensive cessation programs for Louisiana residents within the defined class. The Louisiana jury found that cigarette makers hid the health risks of smoking and committed fraud. Big Tobacco argued that the Louisiana judgment violated the due process clause of the United Constitution because it does not require proof of individualized reliance on the misrepresentations by Big Tobacco.

Baton Rouge, Louisiana injury attorney, Scott Andrews, with the law office of Dué Guidry Piedrahita Andrews Courrege L.C., served on the Trial Team in the Scott v. American Tobacco Co., Inc. litigation. In 2004, a New Orleans, Louisiana jury awarded $591 million. The amount was reduced on appeal to $242 million. Together with post-judgment interest, the total award is approximately $270 million. The judgment in the lawsuit first filed in 1996 is now final. Scott Andrews hopes that every Louisiana smoker within the class finally gets the help and assistance they need to combat their tobacco addiction.

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Given the inherently dangerous nature of gas, gas companies are required to exercise the utmost care to reduce hazards to life as far as is practicable. A gas company is under a duty to safeguard against occurrences that can be reasonably expected or contemplated. When an accident or occurrence can be reasonably anticipated, it is within the scope of the duty owed by the electric company to the injured party because there is an ease of association between the risk presented by the gas company’s conduct under the overall circumstances and the resulting injury. An electric company is held to the standard of a reasonable person with superior attributes, and is required to recognize that there will be a certain amount of negligence that must be anticipated.

Foley v. Entergy Louisiana, Inc., 2006-0983 (La. 11/29/06), 946 So.2d 144, 154.
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It is well settled that gas is an inherently dangerous instrumentality because of its highly flammable and explosive character. Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character and necessary to protect the public from any foreseeable injury therefrom.

Giordano v. Rheem Mfg. Co., 93-1614 (La.App. 3 Cir. 10/05/94), 643 So.2d 492, 496.
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The dangerous nature and hazardous character of gas has been recognized and provision has been made for the regulation of its use in the interest of public safety. Moreover, our law recognizes the greater and higher than ordinary degree of care demanded of those involved in the manufacture, preparation and distribution of gas and similar products.

Home Gas & Fuel Co. v. Miss. Tank Co., 246 La. 625, 633-34, 166 So.2d 252, 255 (1964).
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Starting June 1, 2011, the Louisiana State Police headquarters in Baton Rouge will no longer accept mail-in or walk-in requests for automobile accident reports. The Uniform Motor Vehicle Traffic Crash Reports will only be available on-line at the Louisiana State Police website.

Each accident report will cost $11.50.
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Baton Rouge, Louisiana motorcycle accident lawyer, Scott Andrews, urges motorcycle riders to take a Louisiana State Police Motorcycle Safety and Awareness Course. The Louisiana State Police offers both a Basic Motorcycle Rider Course for inexperienced motorcycle operators and an Advanced Rider Course.

After the third fatal motorcycle crash in less than a week just in Troop L, the Louisiana State Police issued a news release on May 22, 2011, reminding all motorists to safely “share the road” with motorcycles and to be extra alert to help keep motorcyclists safe. Additionally, the Louisiana State Police urges motorcyclists to “RIDE LIKE YOU ARE INVISIBLE TO OTHER MOTORISTS!!!!” and to follow these safety guidelines to increase awareness and have a safe riding experience:

Be visible:

Remember that motorists often have trouble seeing motorcycles and reacting in time.
Make sure your headlight works and is on day and night.
Use reflective strips or decals on your clothing and on your motorcycle.
Be aware of the blind spots cars and trucks have.
Flash your brake light when you are slowing down and before stopping.
If a motorist doesn’t see you, don’t be afraid to use your horn.

Dress for safety:

Wear a quality helmet and eye protection.
Wear bright clothing and a light-colored helmet.
Wear leather or other thick, protective clothing.
Choose long sleeves and pants, over-the-ankle boots, and gloves.
Remember – the only thing between you and the road is your protective gear.

Apply effective mental strategies:

Constantly search the road for changing conditions. Be aware of other traffic, road surfaces and debris.
Give yourself space and time to respond to other motorists’ actions.
Give other motorists time and space to respond to you.
Use lane positioning to be seen; ride in the part of a lane where you are most visible.
Watch for turning vehicles.
Signal your next move in advance.
Avoid weaving between lanes.
Don’t ride when you are tired or under the influence of alcohol or other drugs.
Know and follow the rules of the road and stick to the speed limit.

Know your bike and how to use it:

Practice. Develop your riding techniques before going into heavy traffic. Know how to handle your bike in conditions such as wet or sandy roads, high winds, and uneven surfaces.
Get formal training and take refresher courses.

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On May 20, 2011 MOEX USA and BP reached an agreement on a $1.06 billion payment for MOEX’s involvement in the explosion of the Deepwater Horizon rig in the Gulf of Mexico which led to the devastating oil spill. MOEX continues, however, to deny liability for the accident. The parties agreed to release each other from mutual fault arising from the accident, although punitive damages, civil, criminal, or administrative fines, and penalties are not included in the indemnities. The companies jointly recognized the findings of the National Commission on the BP Deepwater Horizon which concluded that the explosion of the rig was the result of various risk factors, as well as, outright mistakes by multiple parties. BP claims it will apply the $1.06 billion payment to the $20 billion trust it has established for the payment of claims resulting from the explosion, oil spill, and damage to natural resources.

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Three St. Francisville, Louisiana residents were arrested by the Insurance Fraud – Auto Theft Unit of the Louisiana State Police as a result of a complaint made by the Government Employees’ Insurance Company (GEICO). According to the investigation, a GEICO automobile liability insured backed into a vehicle belonging to Honabea Cavalier of St. Francisville. No police report was filed until a month after the accident. After Cavalier filed bodily injury claims on behalf of herself and her five minor children for injuries that she claimed were caused by the collision, GEICO paid Cavalier five hundred dollars to settle the claims. Thereafter, Earl Barrow and Sandra Cavalier filed bodily injury claims with GEICO for the crash. After the investigation revealed that Cavalier’s vehilce was actually unoccupied at the time of the collision, all three suspects were arrested and booked into the West Feliciana Parish Jail. Honabea Cavalier was booked on charges of insurance fraud, felony theft, and filing false public documents. Earl Barrow and Sandra Cavalier were both booked on charges of insurance fraud. They each face up to five years in prison and $5,000 in fines if convicted on the insurance fraud charges.

Baton Rouge, Louisiana auto accident attorney, Scott Andrews, applauds the work of GEICO and the Louisiana State Police in aggressively investigating and pursuing criminal charges against persons suspected of automobile liability insurance fraud. Insurance fraud costs policy holders dearly, not only in the form of fraudulent claims payments, but by the social and moral stigma that attaches to the claims of legitimate accident victims whose claims are often frowned upon because of the illegitimate claims of a few people that make the whole system look bad.

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Louisiana injury lawyer Bob Downing (retired First Circuit Court of Appeal Judge) wrote the following article for the May 2011 issue of the Baton Rouge Bar Association’s monthly publication, Around the Bar, regarding the impropriety of appealing from the denial of a motion for directed verdict:

There should be no appeal from the denial of a motion for a directed verdict. Graves v. Riverwood International Corp., 41,810 (La.App. 2 Cir. 1/31/07), writ denied, 07-630 (La.5/4/07), 956 So.2d 621; See Adams v. Purciau, 417 So.2d 860 (La.App. 4th Cir.), writ denied, 422 So.2d 157 (La.1982); Varnado v. Ins. Co. of America, 484 So.2d 813 (La.App. 1st Cir.), writ denied, 489 So.2d 248 (La.1986); and Miller v. Upjohn Co., 461 So.2d 676 (La.App. 1st Cir.1984).

In reviewing the cases that state that the standard of review for the denial of a motion for directed verdict is the same for the granting of a motion for directed verdict, it appears that the error begins with Davis v. Board of Supervisors of Louisiana State University, 03-2219 (La. App. 4 Cir.11/17/04), 887 So.2d 722, writ denied, 04-3086 (La.2/18/05), 896 So.2d 40, which incorrectly cites Cross v. Cutter Biological, 94-1477 (La.App. 4 Cir.5/29/96), 676 So.2d 131, writ denied, 96-222- (La.1/10/97), 685 So.2d 142, a case dealing with the granting of a motion for directed verdict. Davis is in turn cited for this incorrect standard of review in Everhardt v. Louisiana Department of Transportation & Development, 07-0981 (La.App. 4 Cir. 2/20/08), 978 So.3d 1036.

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Louisiana Revised Statute 9:2794(D)(1)(a) requires that a physician who testifies as an expert witness in a medical malpractice case must be: “practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.” The Louisiana Supreme Court in Johnson v. Morehouse General Hospital, 10-387 c/w 10- 488 (La. 5/10/2011), held that the trial court did not abuse its discretion in allowing a disabled OB/GYN doctor who no longer had an active medical practice from testifying in a medical malpractice case involving obstetrics because the physician was still licensed to practice medicine and write prescriptions, and because he continued to render non-specialist medical services, albeit gratuitously, to friends and family.