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Bordelon v. Ford Motor Company

Bordelon v. Ford Motor Company
(January 2016)

On Friday, January 22, 2016, a jury in Orleans Parish, Louisiana returned a verdict for Ford Motor Company following a two-week trial, rejecting plaintiff’s claim that his 2005 Ford Focus contained a defective seat. Instead, the jury placed all fault for the accident on the adverse driver who rear-ended the plaintiff’s vehicle.

The lawsuit arose from a two-vehicle accident that occurred on February 5, 2011, at approximately 2:00 a.m. in New Orleans. Michael Bordelon, a co-owner of a local restaurant, closed the restaurant for the evening and traveled in his Focus toward his home.  While Bordelon was stopped at a controlled intersection, Willie O’Connor, driving a Toyota Tundra rear-ended him.  As a result of the high-speed crash, Bordelon sustained a severe traumatic brain injury, leaving him permanently disabled.

Bordelon subsequently filed suit against Willie O’Conner and Ford Motor Company. As against O’Conner, Bordelon alleged that O’Conner negligently rear-ended him. O’Conner testified at trial that he had no recollection of the crash because just before the collision he had suffered a “flashback” to his days in Vietnam.  He also testified that he was not intoxicated despite his having pleaded guilty to DWI (Fourth Offense) and First Degree Vehicular Negligent Injuring.

As against Ford, Bordelon claimed the driver’s seat in the 2005 Ford Focus was unreasonably dangerous because of a defect in design. Bordelon’s seat expert, Michael Markushewski, M.E.T., of ARCCA, argued the seat back strength was inadequate. Bordelon’s biomechanical expert, Brian Benda, Ph.D., also of ARCCA, testified that had Ford utilized a stronger seat Bordelon would have walked away from the crash without any significant injury. In reaching that conclusion, Benda relied upon an accident reconstruction performed by Sean Harrington, B.S. in Engineering Science and Mechanics and also from ARCCA, who testified that the Tundra was traveling only 36-44 mph at the time of the collision.

Ford disputed plaintiff’s accident reconstruction by calling Tom Perl, Ph.D., P.E., of Collision Safety Engineering, L.C., who testified that the Tundra traveled 50-60 mph at the moment of impact. That speed resulted in the Focus experiencing a Delta-V of 40 mph. Ford also called a statistician, Jeya Padmanaban, M.S., of JP Research, Inc., who explained that the subject crash was more severe than 97.7% of all rear-end accidents. Additionally, she performed an analysis of hundreds of thousands of crashes and testified that seatback strength is not a statistical predictor of injury outcome.

Ford also presented testimony from Roger Burnett, M.S., a Ford engineer. Mr. Burnett explained the design process for the seat and the extensive testing Ford undertook during its development. Finally, Ford called a biomechanical expert and seat design expert, David Viano, Dr. med., Ph.D., of ProBiomechanics LLC, who testified that the subject seat design performs very well in rear-end crashes. In rebutting plaintiff’s claim that Ford should have utilized a more rigid seat, Dr. Viano introduced testing that demonstrated that the use of the more rigid alternative seat design proposed by plaintiff actually increased the risk of injury to occupants in various crash scenarios experienced much more often than the subject crash scenario and offered no injury reduction benefit even in the serious accident scenario experienced by Bordelon.

Turning to damages, plaintiff presented the testimony of a psychiatrist, Richard Richoux, MD, and a neuropsychologist, Kevin Bianchini, Ph.D., as the basis for a life care plan prepared by Larry Stokes, Ph.D. That plan included extensive attendant care for Bordelon, and plaintiff’s economist, Kenneth Boudreaux, Ph.D., calculated the value of the plan at $3.3 to $4M.  In response, Ford called a psychiatrist, John Thompson, M.D., who disputed the extent of the life care plan presented by plaintiff.  Ford’s expert in life care plans, Elizabeth Bauer, M.Ed., CLCP, presented a plan in line with Dr. Thompson’s recommendations, and John Theriot, CPA, calculated the present value of Ford’s life care plan at $200,000 – $310,000.

During closing arguments, plaintiff’s counsel discounted Willie O’Conner’s role in causing Bordelon’s injuries and argued that the jury should cast Ford with the majority of the fault apportionment.  O’Conner’s counsel argued similarly suggesting that O’Conner’s fault played no role in the cause of Bordelon’s disabling injuries.  On the issue of damages, plaintiff’s counsel suggested a general damages award from $5M to $20M. He also asked the jury to award past medicals of approximately $450,000 and future medicals of up to $4M. After deliberating for approximately four hours, the jury returned an 11-to-1 verdict and found that the Ford Focus was not defective, thereby releasing Ford from any liability. As for Willie O’Conner, the jury found him 100% at fault. The jury then assessed Bordelon’s damages against O’Conner, and it awarded $441,000.00 in past medical expenses, $300,000.00 in future medical expenses, and $500,000.00 in general damages, for a total award of $1.24M.

Ford’s trial team consisted of Keith W. McDaniel and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, Mark Boyle of Donohue, Brown, Mathewson & Smyth LLC, and Michael W. Eady of Thompson Coe.

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Gettys v. Joaquim Wong, MD, LSUHSC & Children’s Hospital

Gettys v. Joaquim Wong, MD, LSUHSC & Children’s Hospital
(December 2015)

On December 3, 2015, a jury in Civil District Court in New Orleans, Louisiana, returned a defense verdict for Dr. Joaquim Wong, LSU Health Sciences Center (State of Louisiana) in a four day medical malpractice case involving the death of a child at Children’s Hospital of New Orleans.

Gabrielle Gettys, who was 16 years of age, was admitted to Children’s Hospital on December 10, 2008, as a longstanding GI patient suffering with ulcerative colitis and Inflammatory Bowel Disease.  She suffered from significant GI bleeding. Following her admission, she began having headaches, and was diagnosed with papilledema. After CT scans and MRIs confirmed lesions in the brain, the team of physicians believed the child suffered from an infectious disease process in the brain in part due to being an immune-compromised patient from her steroid treatment.

Dr. Wong performed a lumbar puncture in the evening of December 10th, the same date of her admission, suspecting infection.  About four hours later, the child suffered a brain herniation and died about a day later.

Plaintiffs’ alleged that Dr. Wong breached the standard of care in failing to properly treat the patient, by suspecting infection over cerebral thrombosis, which blood clots were not visible on imaging studies performed.  Plaintiffs also alleged that the defendant withdrew a greater amount of spinal fluid than was needed for testing, and that as a result, the child herniated and died.

Dr. Wong contended that at the top of the differential diagnosis was infection due to the child’s presentation, based on the imaging studies and due to her compromised immune system.  Standard of care was to test spinal fluid for atypical infections which required a greater volume of fluid. Moreover, had the child had blood clots, infection was still within the differential.

After hearing four days of testimony, the jury returned a verdict in favor of the defendants after deliberating just over 20 minutes.   Dr. Wong and LSUHSC were represented by Peter J. Wanek and Kathryn T. Trew.

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2015 Over the Edge

M1022193On December 4th, 2015 Special Olympics Louisiana held its annual “Over the Edge” fundraiser.  Participants RAPPELED down 25 stories of NOLA’s Benson Tower, RODE in a helicopter and SWAT trained with Louisiana’s finest at the Jefferson Parish Sheriff’s Training Facility.  Devin Fadaol and Bartt Bourgeois participated in the activities for the firm; additionally, the firm manned several volunteer positions under the guidance of Shannon Hanken, the firm’s administrator and a Special Olympics Louisiana committee member.  The firm is a regular sponsor of Special Olympics Louisiana and is proud of what it does for the community.2012 SPECIAL OLYMPICS NOLA  LOGO (M0514202XBC07D)

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“Over the Edge”

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Attorney Devin Fadaol and staff member Bartt Bourgeois will be rappelling down Benson Tower on Friday, December 4, 2015 for Special Olympics Louisiana’s fund raiser, “Over the Edge”.

Other staff members have volunteered to work to support this fund raiser for Special Olympics Louisiana.2012 SPECIAL OLYMPICS NOLA LOGO (M0514202XBC07D)

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The Defense Wins!

(ArticlKeith W. McDanielQuincy T. Crochet, Attorneye published in DRI’s The Voice of the Defense Bar)

On Saturday, June 6, 2015, a jury in Clinton, Louisiana, returned a defense verdict for Ford Motor Company following a nearly 2-week long trial in an airbag non-deployment case involving fatal injuries. In reaching the verdict, the jury rejected plaintiff’s allegation that Ford defectively designed the supplemental restraint system in a 1995 Ford Mustang.  Ford was represented at trial by Keith W. McDaniel and Quincy T. Crochet, of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC and by Michael W. Eady of Thompson, Coe, Cousins & Irons, LLP.  Read Article

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Absent a signed sworn proof of loss, no payment was owed to the Insured.

Shannon Howard-EldridgeU.S. Court of Appeals, 5th Circuit Rules that additional Sworn Proof of Loss was Necessary to Support a Supplemental Claim Under the National Flood Insurance Program. Absent a signed sworn proof of loss, no payment was owed to the Insured.

Mr. and Mrs. Ferraro sued Liberty Mutual to recover flood insurance proceeds under the National Flood Insurance Program (NFIP) after their home was damaged by Hurricane Isaac.  The Ferraros submitted an original signed sworn proof of loss that included a handwritten note “Will send supplement later.” The Ferraros later sought supplemental damages from Liberty Mutual, but did not provide a second sworn proof of loss.  Summary Judgment was granted by the district court in favor of Liberty Mutual holding that a second sworn proof of loss was necessary to support a claim under the NFIP. Summary Judgment was affirmed by the United States Court of Appeals for the Fifth Circuit on August 6, 2015.  Ferraro v. Liberty Mut. Fire Ins. Co., No. 14-30944.

The Ferraro case is interesting because Liberty Mutual knew that the Ferraros intended to supplement their original proof of loss. The Ferraos hired a public adjuster and submitted that adjuster’s report to Liberty Mutual but did not submit a signed sworn proof of loss form.  A Liberty Mutual adjuster told the Ferraros that no additional forms were necessary to support their claims. Liberty Mutual did not make payment on the supplemental claim based upon the public adjuster’s report of additional damages because the insureds failed to submit a second signed proof of loss.

The Ferraros filed suit against Liberty Mutual seeking payment for property damage, loss of use, depreciation, mold and damage remediation, debris clean-up and removal, cost of compliance and all other available damages.  Liberty Mutual filed for summary judgment arguing that the Ferraros were barred from litigation because they did not comply with the Standard Flood Insurance Policy (“SFIP”) prerequisite for filing suit under 44 C.F.R/ pt 61 app. A(1), art.VII. For claims relating to Hurricane Isaac, policyholders were required to provide a complete, signed sworn proof of loss within 240 days of the loss.  The district court noted that the NFIP program requires strict compliance and that the failure to provide the second proof of loss barred the Ferraros’ suit.

The appellate court agreed with the district court that the SFIP made strict compliance with the proof of loss requirement a condition precedent to suit.  “An insured’s failure to provide a complete, sworn proof of loss statement, as required by the flood insurance policy, relieves the federal insurer’s obligation to pay what otherwise might be  valid claim.”  Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998). The Ferraros argued that a second sworn proof of loss was not necessary because they were merely supplementing a claim rather than making a new claim.  The issue of whether an insured must submit an additional proof of loss to recover an additional amount on a preexisting claim was a question of first impression in the Fifth Circuit Court of Appeals. The Fifth Circuit was persuaded by opinions from the First and Eighth Circuit Courts of Appeals that had considered similar circumstances, and held that an insured’s failure to strictly comply with the SFIP’s provisions, including the proof of loss requirement, relieves the federal insurer from the obligation to pay the non-compliant claim.  The handwritten note “Will send supplement later” and the public adjuster’s report did not comply with the SFIP’s regulatory proof of loss requirement.

The Ferraros maintained that they relied to their detriment on the assurance from a Liberty Mutual adjuster that no additional forms were necessary.  The Court of Appeals did not consider this argument on appeal because it was not raised in the opposition to summary judgment before the district court. It is uncertain whether Liberty Mutual’s adjuster could have waived the SFIP’s condition precedent for a sworn proof of loss. The Court did not consider the claim of detrimental reliance because the Ferraros did not bring the defense in the trial court and had no reasonable explanation as to why that defense was not raised in the trial court.

Shannon Howard-Eldridge
August 27, 2015

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Rachel Guttmann – Y’Heard Me? Music Business Summit

rGutmannRachel Guttmann, an attorney at McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, will be a mentor and presenter at the Y’Heard Me? Music Business Summit to be held on September 12, 2015, from 12 pm to 3 pm at the Ellis Marsalis Center in Musicians’ Village in New Orleans. Ms. Guttmann will speak to New Orleans musicians about the application of copyright law to their businesses as artists, performers, and creators. The event is a joint initiative between McCranie Sistrunk Anzelmo Hardy McDaniel & Welch, The Google Community Leaders Program, The Ellis Marsalis Center, Good Work Network, The Recording Academy™ Memphis Chapter, MaCCNO, The Backbeat Foundation, The City of New Orleans Office of Cultural Economy, Guitar Center: GC Pro, the Loyola Music Industry Studies Program and the Tipitina’s Foundation. YHeardmeflyer (1)

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Hazel Martin v. Piggly Wiggly of Independence and The Republic Group

Hazel Martin v. Piggly Wiggly of Independence and The Republic Group
(August 2015)

Devin Fadaol obtained a defense verdict on liability in a lawsuit alleging multiple herniated discs throughout the lumbar spine and a surgery recommendation as a result of a slip-and-fall in a Piggly Wiggly grocery store. The plaintiff failed to meet her burden of proof on the temporal element of constructive notice, or that store employees created the allegedly hazardous condition.  The plaintiff also failed to prove that an employee in the vicinity of the defective condition was sufficient to establish liability.   Plaintiff filed a Motion for New Trial which was denied.

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FDCC Quarterly, Volume 64.4

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Sidney Hardy published in FDCC Quarterly, Volume 64.4.  Protecting Intellectual Property and Trade Secrets in the United States Read article

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Jorge A. Espinosa v. Accor North America, Inc., Et Al.

Jorge A.  Espinosa v. Accor North America, Inc., Et Al.
(July 2015)

Michael R. Sistrunk and Heather M. Nagel secured a summary judgment in favor of Accor Franchising North America, LLC n/k/a G6 Hospitality LLC (hereinafter “G6 Hospitality”), which was upheld on appeal by the Louisiana Court of Appeals for the Fourth Circuit.  In Espinosa, the plaintiff was rendered a paraplegic after he was shot in the motel parking lot by unknown third-party assailants. The subject motel was owned and operated by a third-party franchisee, pursuant to a franchise agreement awarded by G6 Hospitality.  The plaintiff filed suit against G6 Hospitality and the franchisee alleging that the defendants failed to provide a safe and secure premises because there was a broken gate that enabled the gunmen to enter the parking lot.  The trial court granted the motion for summary judgment in favor of G6 Hospitality finding that it did not owe a duty to the plaintiff.  The  Louisiana Court of Appeals for the Fourth Circuit affirmed the trial court’s decision, holding that G6 Hospitality did not owe a duty to the plaintiff pursuant to the doctrines of direct negligence, actual authority or apparent authority.  The appeal court reasoned that G6 Hospitality was not at fault because it did not own the subject motel and did not exercise control over the day-to-day operations.  Additionally, the court found that the broken gate did not constitute an unreasonably dangerous condition. There were numerous avenues of entry that the gunmen could have gained access to the property, including the front entry that was open at the time of the shooting.  G6 Hospitality did not have a duty to protect the plaintiff from the criminal acts of third-parties.

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