Archive | December, 2006

Melanie McGrath v. Donald L. Davis, ET AL.

Melanie McGrath v. Donald L. Davis, ET AL.
(December 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Amica Mutual Insurance Company in Civil District Court for the Parish of Orleans. Plaintiff sued Amica arguing that she had $300,000.00 in Uninsured Motorist Coverage because the UM rejection form had the words Not Available typed next to the economic only provisions of the UM rejection form; thus, precluding her from making a meaningful selection. Amica argued the rejection form was valid because: (1) the UM rejection at issue was on the form prescribed by the Louisiana Insurance Commissioner; (2) the UM statute specifically indicates that economic only coverage is a type of coverage that an insurer may offer, in contrast to other provisions in the statute in which the word shall indicates that a provision is mandatory rather than permissive; (3) the UM statute does not require that the form prescribed by the Louisiana Insurance Commissioner afford an insured the option of selecting economic only coverage; rather, the statute simply requires that, when an insured makes a selection concerning UM coverage, that selection must be made on the prescribed form; and (4) to the extent an insured need be made aware that economic only coverage is available from other insurers the prescribed form so advises the insured. The district court granted Amica’s summary judgment motion finding that the UM rejection validly rejected UM coverage.

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Bookerrena Kraft, et al. v. Harry Lee, et al.

Bookerrena Kraft, et al. v. Harry Lee, et al.
(December 2006)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jefferson Parish, the Jefferson Parish Council and Deborah Villio in the case entitled Bookerrena Kraft, et al. v. Harry Lee, et al. in United States District Court for the Eastern District of Louisiana. Plaintiffs sued the defendants alleging their Civil Rights were violated when the defendants failed to provide them adequate medical care and excessive force when Jefferson Parish Sheriff Deputies allegedly shot hundreds of bullets into a car injuring the plaintiffs and killing the driver. The District Court dismissed plaintiffs’ inadequate medical care claims against the remaining defendants because plaintiffs failed to allege how the defendants denied them adequate medical care. The District Court threw out plaintiffs’ Civil Rights claim against the Parish finding that the Parish was not responsible for the Sheriff’s alleged custom, policy or practices. Finally, the District Court dismissed plaintiffs’ claims against the Council because it was not an entity capable of being sued.

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Kevin D. Lawson ET AL. v. Mitsubishi Motor Sales of America, et al.

Kevin D. Lawson ET AL. v. Mitsubishi Motor Sales of America, et al.
Louisiana Supreme Court Reinstates Jury Verdict for Mitsubishi
(September 2006)

Keith W. McDaniel and Lance B. Williams obtained a ruling by the Louisiana Supreme Court reinstating a jury verdict in favor of Mitsubishi after two years of appeals.

On January 9, 1999, Kelli Lawson was driving her 1996 Mitsubishi Galant, when she stopped the vehicle and honked her horn. Upon honking her horn, the airbag deployed breaking both of her thumbs and injuring her right wrist. Ms. Lawson then underwent several surgeries and therapy, and claimed at trial to be permanently disabled from her job as a court clerk.

She filed suit on June 10, 1999 against Mitsubishi Motor Sales of America, Inc., alleging a manufacturing defect in the clockspring, a component which routes electrical wires to the airbag and other devices in the steering wheel. A jury trial was conducted from September 29, 2003 through October 8, 2003, and a twelve person jury returned a unanimous verdict in favor of Mitsubishi. Thereafter, the trial court granted plaintiffs’ Motion for JNOV on liability and ordered a new trial on damages. The matter was appealed and the Louisiana Third Circuit Court of Appeal affirmed the JNOV and rendered damages in excess of $1,000,000.

The Louisiana Supreme Court granted writs and reversed the Third Circuit’s and trial court’s rulings, reinstating the jury verdict.

The Louisiana Supreme Court held that the lower courts improperly applied the evidentiary doctrine of res ipsa loquitur (Latin for Athe thing speaks for itself). The Court further determined that the lower courts’ misapplication of the doctrine of res ipsa loquitur erroneously made it Adispositive of the issue of defendant’s negligence.

The doctrine of res ipsa loquitur is in actuality purely an evidentiary doctrine, and does not carry plaintiffs’ burden of proof. Rather, it shifts the burden to defendants to prove that the malfunction was not a result of a defect in manufacture.

The court found initially that the doctrine should not have been used in the subject case. Louisiana law holds that res ipsa loquitur should only apply in instances where the evidence sufficiently Aexcluded inference of the plaintiffs’ own responsibility or the responsibility of others besides defendant in causing the accident. The court noted that Mitsubishi proved at trial there had never been another reported instance of a clockspring malfunctioning because of a misalignment at the factory. Further, plaintiffs’ own experts could not verify with direct evidence the fact that the cause of the malfunction was a misalignment of the component by Mitsubishi, rather than in subsequent repairs or accidents, noting that the vehicle had been in a rental fleet for 20,000 miles. The court also noted that plaintiffs’ experts destroyed any Adirect evidence, by dismantling the steering wheel and airbag system before any notice was provided to Mitsubishi. In doing so, plaintiffs’ experts failed to adequately document the condition of the components. Accordingly, the Court ruled that plaintiffs should not be allowed to gain the benefit of circumstantial evidence, when they defeated the only possible direct evidence available – the alignment of the clockspring.

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Daphne Leray, et al. v. Nissan North America, Inc., et al.

NISSAN CRASHWORTHINESS AND BRAKE DEFECT CLAIM
Daphne Leray, et al. v. Nissan North America, Inc., et al.

After a three-week trial, a Louisiana state court jury returned a verdict for Nissan North America, Inc., finding no defect in the crashworthiness or braking system of a 1995 Nissan pick-up. Daphne Leray, et al. v. Nissan North America, Inc., et al., 17th JDC No: 80,852, verdict rendered September 1, 2006. Update: The verdict was overturned on unrelated grounds and a new trial has been ordered.

Plaintiff, Daphne Leray, was a front seat passenger in a 1995 pick up driven by her boyfriend, Jamie Adams. While traveling on a two lane road outside of Thibodaux, Louisiana, Mr. Adams allowed the vehicle to drift off the roadway onto the gravel shoulder on the right, before overcorrecting to the left, losing control and skidding across the roadway into a ditch on the left side of the highway. His vehicle rolled and vaulted into a telephone pole, with the passenger side A-pillar making the first contact with the pole. Daphne Leray was rendered quadriplegic, while Jamie Adams walked away virtually unscathed.

Ms. Leray sued Nissan North America, Inc., alleging that the vehicle’s brake system was defectively designed, because it provided only rear wheel anti-lock brakes, rather than four-wheel anti-lock brakes. The plaintiff also alleged that the “roof structure” of the vehicle was inadequate, and should have been designed to withstand the force of the impact with the pole. Plaintiff also sued the State of Louisiana for a defective roadway and Entergy Louisiana, LLC for the placement of the pole.

In an unusual twist, plaintiff also sued her initial treating doctors in a separate lawsuit, claiming that they failed to properly safeguard her cervical spine, allowing her to be without cervical protection for three days before diagnosing spinal fractures and a spinal cord injury. That suit went to trial in Jefferson Parish, Louisiana in 2002, resulting in an $18 million verdict against the doctors. Because of statutory caps to recovery in medical malpractice litigation in Louisiana, plaintiffs received approximately 1.8 million in cash as well as reimbursement for all future medicals from the doctors. Due to pre-trial rulings, however, Nissan was forced to present the fault and damages caused by the doctors, which plaintiffs denied in the second litigation.

Nissan defended the brake defect allegations by demonstrating that Jamie Adams failed to apply any steering input to the vehicle as it skidded across the roadway and into the ditch. Front wheel ABS systems, although designed to allow for steering for heavy braking, would have provided no benefit in Leray’s accident because no steering was incorporated. Additionally, Nissan defended its selection of rear wheel only ABS systems in the early 1990s as state-of-the-art and appropriate to remedy rear-wheel lock-up common in pick-ups.

Regarding the crashworthiness claims, Nissan demonstrated that the vehicle impacted the pole with the passenger side A-pillar (and the vehicle upside down) at between 16 and 18 mph. Nissan asserted that plaintiffs’ expert, Keith Friedman, was unable to provide a vehicle in production which would have withstood the localized forces exerted on the Nissan’s A-pillar, and therefore Nissan successfully argued that the design necessary to withstand such forces was not, and is not, available in passenger vehicles. Nissan also conducted testing in which various 1995 model year vehicles were dropped at 16 mph onto their A-pillar against an elevated pole. The damage seen by other vehicles was consistent with, or worse than, the damage sustained by the Nissan.

Nissan also rebutted the finite element analysis modeling conducted by Mr. Friedman which was intended to demonstrate feasible alternative designs. Instead, Nissan presented evidence to show that the modeling was inaccurate and scientifically unsound.

Plaintiffs’ sought approximately $18 million in damages (legal interest would have raised the total to nearly $25 million). The jury returned a verdict holding Jamie Adams 50% at fault and each of the two doctors 25% at fault.

Plaintiffs experts were Keith Friedman and Murat Okcouglu from Friedman Research, and Anthony Sances of Biomechanics Institute, all of Santa Barbara, California.

Expert witnesses for the defense were Garry Bahling, Vehicle Assessment Consulting, Inc. of Metamora, Michigan, on roof design and testing; Robert Rucoba, Carr Engineering of Houston, Texas, on accident reconstruction; Larry Petersen, Consulting Automotive Engineer of Grosse Point Park, Michigan, on brake design and testing; and Kelly Kennett, InSciTech of Suwanee, Georgia, on finite element analysis modeling.

Plaintiffs were represented by Jerald Block and Matthew Block of Block Law Firm in Thibodaux, Louisiana and Darryl Carimi of Carimi Law Firm in Metairie, Louisiana.

Nissan was represented by Keith W. McDaniel and Lance B. Williams of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch of Covington, Louisiana.

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Surilla Ott et al v. Families Helping Familes et al,

Surilla Ott et al v. Families Helping Familes et al,
(August 2006)

Surilla Ott et al v. Families Helping Familes et al, This case involved plaintiffs’ claims that they were discriminated against because of their race in regards to their termination and that they were defamed in the process. The trial court granted our summary judgment dismissing plaintiffs’ claims. The Louisiana Fourth Circuit Court of Appeals sustained the granting of a motion for summary judgment dismissing all claims against our client.

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Thomas Sharbono v. Michael Shipes, ET AL.

Thomas Sharbono v. Michael Shipes, ET AL.
(July 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Cincinnati Insurance Company in the 14th Judicial District Court for the Parish of Calcasieu. Plaintiff sued various defendants as a result of an automobile accident which aggravated his multiple sclerosis condition. The district court granted Cincinnati’s summary judgment motion finding that the tortfeasor was not employed by Cincinnati’s insured and as a result Cincinnati could not be held liable for plaintiff’s injuries.

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Kevin Friloux v. St. Charles Parish School Board, et al.

Kevin Friloux v. St. Charles Parish School Board, et al.
(June 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of the Superintendent of the St. Charles School Board in the United States District Court for the Eastern District of Louisiana. Plaintiff (a former Parish President) brought Civil Rights and state law claims against Superintendent Rodney Lafon for allegedly terminating him for the exercise of his First Amendment rights. The district court granted defendants summary judgment motion finding that the actions of Superintendent Lafon were objectively reasonable and dismissed all of plaintiff’s claims against the superintendent.

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Bank One v. Nemo Viso

Bank One v. Nemo Viso
(May 2006)

Bank One vs. Nemo Viso, Louisiana Fourth Circuit Court of Appeals. The court affirmed a verdict we recieved on behalf of the Bank requiring a former employee to return monies recieved under a retention agreement.

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Thompson v. Nissan

Thompson v. Nissan
Louisiana Federal Court Judge Grants Summary Judgment to Nissan in Fire Case
(April 2006)

A federal judge in New Orleans, Louisiana granted summary judgment on claims that the fuel system in a 1993 Nissan Pathfinder contained design and warnings defects. Leonard Thompson, et al. v Nissan North America, Inc., et al. (E.D. La., No. 03-0172).

On January 20, 2002, Betty Segura was driving a 1993 Nissan Pathfinder with five relatives as passengers. Due to an alleged deflation of the left rear tire, Ms. Segura lost control of the vehicle, which flipped and landed on its roof on a bridge over Lake Pontchartrain. A large amount of fuel spilled from the vehicle’s fuel filler tube, and ignited during the crash. Ms. Segura and three of the passengers perished. The other two passengers survived, but Leonard Thompson sustained third degree burns over a large portion of his body, including disfiguring burns to his head and face.

After the accident, the fire department personnel who responded to the scene observed that the fuel filler door to the vehicle was closed, but inside there was no evidence of a fuel filler cap having been in place prior to the fire. Plaintiffs retained Jerry Wallingford and Thomas Green, who opined that the fuel system of the 1993 Nissan Pathfinder was defectively designed. Additionally, plaintiffs’ experts alleged that Nissan failed to provide an adequate warning of the dangers associated with an improperly tightened or misplaced fuel filler cap.

Specifically, plaintiffs’ experts conducted testing to show the amount of fuel which is released through the filler tube when a vehicle is inverted and the gas cap is not in place. They then alleged that Nissan should have implemented alternative designs, which would have prevented the leakage of fuel from the filler tube if the vehicle was inverted and the gas cap was misplaced.

Nissan’s fuel system design expert, Mark Noble, testified that all of the alternative designs suggested by plaintiffs were not in existence at the time of the design of the 1993 Nissan Pathfinder. Further, Mr. Noble tested the alternative designs suggested by plaintiffs, and demonstrated that each would have defeated the utility of the vehicle. Specifically, one alternative could not be fitted to the gas tank of the Pathfinder without significant design and structural changes to the vehicle itself. All of the suggested alternative designs prevented proper pressure equalization in the tank during filling the tank at a commercial filling station. Therefore, it was shown that none of the alternative designs allowed the tank to be filled at a commercial filling station, and any attempt to fill the tank produced excessive “spit-back” of fuel out of the tank and onto the customer.

Judge A. J. McNamara, after reviewing the evidence, determined that the alternative designs were not feasible, as required by the Louisiana Product Liability Act. Additionally, the court conducted a cost/benefit analysis, and determined that the utility of the vehicle was so diminished by the alternative designs, that this cost far outweighed the benefit associated with implementing the alternative designs. The court noted that plaintiffs’ experts could produce no other known instance of a vehicle rolling over with a misplaced gas cap, resulting in spillage of fuel out of the fuel filler tube and causing a fire.

With regard to plaintiffs’ warning claims, plaintiffs’ experts failed to provide an alternative warning which, if implemented, would have prevented the accident or plaintiffs’ injuries. Leonard Thompson was the individual who last filled the gas tank. He testified that he replaced and “tightened” the gas cap all the way. Therefore, the court concluded he needed no warning of the dangers associated with failing to tighten or replace the gas cap, as plaintiffs’ experts suggested.

Nissan North America, Inc. was represented by Keith W. McDaniel and Lance B. Williams of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch in Covington, Louisiana.

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Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company

Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company
(March 2006)

Devin Fadaol won a victory in favor of United Services Automobile Agency (USAA) Insurance Company in the case entitled Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company, Docket No. 04-10683, Division “E” in Civil District Court for the Parish of Orleans. The lawsuit arose out of an automobile accident at the intersection of Tulane Avenue and South Claiborne. Both drivers claimed they had a green light but only Michelle Hand was issued a citation. The police report and traffic citation were not admitted into evidence and the plaintiffs were successfully impeached on cross examination with evidence of prior convictions and moving violations. Judge Madeleine M. Landrieu ruled in favor of defendants, Michelle Hand and USAA on the issue of liability and returned a zero judgment against the plaintiffs finding them 100% liable for the accident.

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