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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 McCranie Sistrunk.

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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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Mary Boyd v. Winn Dixie

Mary Boyd v. Winn Dixie
(July 2015)

Devin Fadaol won a victory for Winn Dixie Montgomery, LLC, in a personal injury lawsuit alleging herniated discs to the lumbar spine as a result of a slip and fall in Jefferson Parish.    Defendants filed a Motion for Summary Judgment on the basis that an employee had just passed through and inspected the area within minutes before the plaintiff fell.   The trial court judge held that plaintiff did not meet her burden of proving the temporal element required under the constructive notice statute.  The court granted Winn Dixie’s Motion for Summary Judgment and dismissed all of the plaintiff’s claims

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