Mitchell v. ACE Hardware
Larry Mitchell et al v. ACE Hardware Corp, USDC- Eastern Dist of LA (Hon. Mary Ann Lemmon)- (May 22-24, 2017) – Peter Wanek and Elizabeth McDermott obtained a unanimous defense verdict in the defense of an 18 wheeler truck driver who allegedly rear ended another motorist driving him off the interstate highway resulting in serious spine injuries. The defendant driver was cited for the accident. Plaintiff had a cervical fusion and his neurosurgeon recommended a three-level lumbar fusion. Past and future medical expenses purportedly totaled more than $400,000. After approximately three hours of deliberation, the jury concluded that the defendant-driver was not negligent for the accident.
Casey Krueger vs. La Quinta Inn & Suites
Mike Sistrunk and Matt Garver obtained a defense verdict for LQ Management, LLC (La Quinta’s management company) following a 3 day jury trial in the 19th Judicial District Court for East Baton Rouge Parish. On August 22, 2010, Krueger was injured when he stepped on a large piece of glass while using the La Quinta pool. Krueger suffered a complex laceration on the bottom of his foot that severed several tendons and required surgical intervention. Krueger alleged that La Quinta was negligent in its operation and inspection of the pool and sought damages of over $350,000. La Quinta maintained that its employees regularly inspected the pool area and that the pool, and the surrounding area, was free of trash and debris when the incident occurred. Further, the plaintiff presented no evidence that a La Quinta employee was aware of the foreign body in the pool or that the foreign body was in the pool for any length of time before the injury. The plaintiff theorized that a full trashcan in the pool area was evidence that the pool inspection was lacking. The jury found by a vote of 11-1 that La Quinta did not know, nor should it have known, of the defect in the premises prior to the injury and La Quinta was free from fault. As a result, judgment on the jury verdict in favor of La Quinta was entered by the trial judge.
Jessica Faust v. United Services Automobile Association
Peter Wanek received a defense verdict from a jury in the 34th Judicial District Court/St. Bernard parish, Judge Jeanne Juneau, for a rear end auto accident for client, USAA. Ms Faust alleged that she suffered an exacerbation of a herniated disc and was offered lower back fusion surgery only after the accident. The defense alleged that the plaintiff returned to her pre-accident level of pain, and that her surgery was related to the previously diagnosed herniated disc. Plaintiff had received $15,000 from the primary insurer, and USAA had tendered $15,799. The jury awarded $9,799, less than what had been tendered presuit, resulting in a net zero verdict. Poll of jury was 12-0.
Costly v. Nissan
On Friday, February 24, 2017, a jury in the United States District Court for the Middle District of Louisiana returned a defense verdict for Nissan Motor Co., Ltd. and Nissan North America, Inc., rejecting plaintiff’s claim that a manufacturing defect in a u-joint in her mother’s 2007 Infiniti G35S failed and caused the fatal crash that gave rise to the lawsuit. Keith W. McDaniel and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC represented the Nissan entities.
The single vehicle crash at issue occurred on April 9, 2013. As Bridget Desselle traveled westbound on I-10 in the inside lane of travel, the Infiniti moved to the right, entered the outside lane of travel, and forced a motorist to move onto the shoulder to avoid a collision with the Infiniti. Desselle then moved to the left and drove off the left side of the interstate at a high rate of speed. After leaving the roadway, the Infiniti struck a tree head-on, triggering the Event Data Recorder (“EDR”) and deployment of the airbags. That impact also redirected the vehicle so that it became airborne and crashed into another tree while rolling passenger side leading. First responders observed no signs of life, and the coroner pronounced Desselle dead at the scene.
Law enforcement personnel found Desselle’s cell phone in or near her hand and determined that the accident occurred because Desselle was distracted and drove the vehicle in an unsafe manner. Plaintiff claimed instead that Desselle did not cause the accident. Using data from the EDR and a statement from a witness Ben T. Railsback, concluded the vehicle’s u-joint separated on-roadway resulting in Desselle’s inability to prevent the crash. (The u-joint is one component that connects the steering wheel to the steer tires. If separated, movement of the steering wheel does not reach the steer tires.) Additionally, testifying as a mechanical engineer, Mr. Railsback claimed that the u-joint – which was found separated during a post-accident inspection of the heavily damaged vehicle – contained a manufacturing defect because staking on it appeared short. This shortened staking, he suggested, ultimately allowed the u-joint to separate despite having never caused a problem during the vehicle’s past use of approximately 150,000 miles.
Peter A. Luepke, who reconstructed the crash for the Nissan entities, utilized the EDR data, statements and depositions of multiple witnesses, vehicle inspections, scene survey and evidence from the scene. He explained that the EDR captured seven seconds of pre-impact data and that it recorded steer data in one-second intervals. His reconstruction showed that Desselle indeed steered to the left, but that the EDR did not capture the left steer input because it occurred between the one-second sample points. His reconstruction also confirmed that Desselle’s left steer was an overcorrection that caused the Infiniti to enter a counterclockwise yaw as it traveled off the roadway. While Desselle steered to the right after overcorrecting to the left, her effort came too late to allow for a correction of the travel path because of her speed and the very short distance she traveled before exiting the roadway. Subsequent right steers made after the vehicle exited the roadway into wet grass also could not completely reverse Desselle’s travel path. Nevertheless, Mr. Luepke’s reconstruction showed that the vehicle’s travel path and positioning of its tires after leaving the roadway demonstrated a partial reversal of the counterclockwise yaw through right steer input translated to the steer tires. That could not have occurred had the u-joint been separated as claimed by plaintiff.
Nicholas J. Durisek, Ph.D. also testified for the Nissan entities regarding plaintiff’s claims of a manufacturing defect. (Dr. Durisek additionally provided opinions pre-trial regarding plaintiff’s design defect theory that the u-joint should have utilized a different staking technique. On motion for summary judgment, the trial court dismissed plaintiff’s design defect claim.) At trial, Dr. Durisek demonstrated that witness marks left on the u-joint only could have been made had the u-joint been intact at the time the vehicle crashed head-on into the tree. Additionally, he showed that even a complete removal of the staking did not result in separation of the u-joint and that the staking about which plaintiff complained was not “short” but instead deformed as the result of crash damage. Finally, to rebut Mr. Railsback’s claim that it is impossible for a vehicle to yaw counterclockwise on pavement following right steer inputs, he displayed testing video of that exact phenomena and explained that speed, surface friction, and distance must be considered when predicting a vehicle’s path of travel in response to steer inputs.
Plaintiff, the only surviving child of Bridget Desselle, sought a total of more than $1.2 million dollars. The jury of 8 unanimously rejected her request and rendered a defense verdict in favor of the Nissan entities.
Ruffin v. Stewart and Associates, and Republic Vanguard Insurance Company
Mike Sistrunk and Devin Fadaol obtained a victory for Republic Vanguard Insurance Company’s (“Republic”) named insured, Byron Stewart, Sr. d/b/a Stewart and Associates Architectural Company (the “Company”), following a two-week jury trial in CDC/Orleans Parish, Louisiana. The lawsuit arose from a pedestrian-vehicle accident that occurred on May 26, 2010, in New Orleans, Louisiana. The plaintiff suffered from paranoid schizophrenia, which commenced after head trauma resulting from a decades earlier criminal battery. On the day of the accident, Stewart, Sr. and Stewart Jr. left their home/office during work hours to retrieve the vehicle from a repair shop. Byron Stewart, Jr. was driving the vehicle when he lost control and struck the plaintiff. The vehicle was owned by Stewart, Sr., but it was used at times for business related activities and all expenses were paid by the Company. The plaintiff sought to hold the Company vicariously responsible for the acts of Stewart, Jr.
The Republic insurance policy contained language which allowed plaintiff to argue for coverage. For instance, simply using the vehicle “in furtherance of the business” or “in connection with the business” triggered coverage. Further, the plaintiff made allegations of negligent entrustment, as Byron Stewart, Jr. also had been diagnosed with paranoid schizophrenia. The jury heard testimony that Stewart, Jr. may not have been taking his prescription anti-psychotic medication in the months leading up to the accident. The Company also faced excess exposure based on bad faith allegations and demands to pay the policy limits made before and during the trial.
The plaintiff claimed damages from a crushed leg, amputated toe, amputated leg, and colon removal. The plaintiff incurred $644,499.00 in past medical expenses and was hospitalized and/or under nursing home care since the 2010 accident. The judge gave the jury parts of the subject policy as jury charges instead of determining coverage as a matter of law. The jury verdict form provided the jury with three separate opportunities to find liability against the Company. Shortly before midnight on a Friday, the jury returned a verdict in the Company’s favor. The jury placed all fault for the accident on Stewart, Jr. in his personal capacity and Progressive Insurance Company, who had a separate personal policy on the vehicle. During closing arguments, the plaintiff’s attorney asked for approximately $3.5 million. After seven hours of deliberation, the jury returned a verdict of $2,670,614.00, but found that plaintiff failed to mitigate his damages, which reduced the award by approximately $170,000.00. The jury also accepted a reduced life expectancy for the plaintiff’s life care plan because of his pre-existing schizophrenia and the testimony of the defense expert, Dr. John Thompson, who is a renowned neuropsychiatrist. The jury assessed 100% fault to Stewart, Jr. and Progressive Insurance Company, whose policy limits only complied with the state minimum. In closing argument, the plaintiff’s attorney and co-defendant’s counsel both pointed to the Company as the only responsible party.
Tiffany Roy and Glenda Abate, et al v. Republic
Devin Fadaol and Geoff Hingle won a victory for Southern Insurance Company (The Republic Group) in the 15th Judicial District Court for the Parish of Lafayette. The trial court granted Southern’s Motion for Summary Judgment on the issue of coverage under a Farm and Ranch Policy. There were two lawsuits with multiple plaintiffs arising out of the same accident and Farm and Ranch Policy. Southern successfully argued that the subject policy unambiguously excluded coverage for bodily injury or property damage arising out of the operation of a personal pick-up truck. The plaintiff filed a cross-motion claiming that there is coverage because of a conflict between the definitions of “motor vehicle” and “non-farm vehicle.” The trial court judge accepted Southern’s position that there is no ambiguity in the policy, and held that the pick-up truck falls under all three definitions of motorized vehicle, motor vehicle, and non-farm vehicle. The trial court judge dismissed Southern Insurance Company from both lawsuits.
Deloris Butler, et al vs. Billy David, The Town of Welsh, and Southern Insurance Company
Mike Sistrunk and Matt Garver obtained a favorable result for the Town of Welsh, Louisiana and one of its police officers, Billy David. On October 6, 2012, Officer Billy David was responding to a non-emergency call when he merged onto I-10 eastbound and caused a motor vehicle accident. Mr. David merged into a lane occupied by a vehicle owned by Deloris Butler. The Butler vehicle avoided a collision with Mr. David, but spun in the median and was subsequently struck by an 18-wheeler operated by Panfilo Carrillo. Both vehicles suffered significant damage. At the time of trial, Panfilo Carrillo was the remaining plaintiff. Carrillo alleged injury to his low back and neck. A low back MRI showed that Carrillo had disc herniations at L2-3 and L4-5. Plaintiff’s treating neurosurgeon opined that he needed either a single level discectomy or a multi-level fusion, depending upon the condition of his spine at the time of surgery. Carrillo’s past medical expenses totaled over $30,000 and future medical expenses ranged from $45,000 to $150,000. Carrillo employed a vocational rehabilitation expert and an economist to quantify his claim for loss of future earning capacity. On cross examination, Carrillo admitted that he was following the preceding car too closely so as not to delay his delivery. Additionally, the nature and extent of Carrillo’s injuries were called into question by a defense expert. In closing, Carrillo’s attorney asked the jury for over $1.1 million. The jury returned a verdict for the plaintiff, finding that Officer David was solely at fault for the accident. The jury awarded Carrillo his past medical expenses of $30,493 and general damages of $55,000, for a total award of $85,493. The jury’s verdict mirrored what Mr. Garver suggested in closing. The plaintiff appealed to the 3rd Circuit, which increased the damages award by $25,000.
Cassidy v. Ford Motor Company
Lance Williams defeated certification in a class action against Ford Motor Company. Plaintiff attempted to convene a statewide class claiming defects in 2011-2015 Ford Explorers, which allegedly permitted exhaust fumes and other gases into the passenger compartment during operation of the vehicle. After months of litigation, on May 25, 2016, United States District Judge Kurt Engelhardt granted Ford’s Motion to Strike Plaintiffs’ Class Action Allegations and denied Plaintiffs’ Motion to Certify Class.
Bordelon v. Ford Motor Company
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.
Gettys v. Joaquim Wong, MD, LSUHSC & Children’s Hospital
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.
Hazel Martin v. Piggly Wiggly of Independence and The Republic Group
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.
Mary Boyd v. Winn Dixie
Devin Fadaol and Meghan Shumaker 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.
Jorge A. Espinosa v. Accor North America, Inc., Et Al.
Michael R. Sistrunk, Heather Nagel Shockley, and Lynda A. Tafaro 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.
Brumfield v. Ford Motor Company
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.
The lawsuit arose out of a series of events on March 1, 2008 that culminated in a two-car collision between a 2006 Nissan Altima operated by Dana Shell and a 1995 Ford Mustang operated by Robert Brumfield and occupied by his two minor children. Shell, a registered nurse, worked the night shift in the psychiatric ward at Baton Rouge General Medical Center, and her shift ended the morning of March 1st. According to co-workers, Shell exhibited odd behavior indicative of impairment, and she made numerous nonsensical and illegible chart entries in patients’ records. Testimony also revealed that a psychiatrist at the hospital mistook Shell for a patient that morning, and a psychiatric nurse at the facility asked a supervisor to prevent Shell from driving away from the hospital. Nevertheless, the hospital excused Shell from her next shift, and she left the hospital that afternoon in her automobile.
Shortly after leaving, Shell rear-ended a pickup truck at highway speed while still in Baton Rouge. She did not stop, and the operator of the truck, who happened to be a retired Baton Rouge police officer, gave chase. He called 911, and while on the phone with the operator, he observed Shell commit a second hit-and-run on another vehicle. Shell traveled into the city limits of Baker, Louisiana, where two separate Baker officers spotted her vehicle, activated their lights and sirens and attempted to stop Shell. However, Shell continued and ran at least one red light before pulling over approximately 1.3 miles after the Baker units began their pursuit. Baton Rouge police officers soon arrived on the scene to handle the initial hit-and-run offense, and Shell completed a written statement. In the statement, she identified her location as Baton Rouge General Hospital and wrote that she just hit an alligator in the road. Officers from both departments issued various citations to Shell, but none performed a field sobriety test. After learning that the officers planned to release Shell, the retired officer and hit-and-run victim asked for a head start so that he would not be on the roadway at the same time as Shell.
Shell then left Baker and continued to operate her vehicle in an erratic fashion, forcing at least one other vehicle off the roadway and into a ditch. Just moments later, Shell attempted to pass a row of vehicles traveling northbound on Highway 19 near Slaughter, Louisiana. While attempting this maneuver, Shell traveled northbound in the southbound lane of travel and caused an off-set head-on collision with the Brumfields’ 1995 Ford Mustang. Both vehicles traveled at approximately 50 mph at the time of the crash. As a result of the impact, Robert Brumfield died immediately at the scene, and his two children suffered relatively minor injuries. Dana Shell sustained extensive trauma resulting in approximately 40 surgical operations.
Robert Brumfield’s surviving spouse, Sunday Brumfield, subsequently filed suit on behalf of herself and her minor children against Dana Shell, Baton Rouge General Medical Center, the City of Baker, the City of Baton Rouge and Ford Motor Company. As against Ford, plaintiff contended that the wire routing from the driver side airbag sensor was defective. Plaintiff’s design expert, Michael Nranian of Automotive Design Analysis in South Lyon, Michigan, opined that the wire routing rendered the system susceptible to severing during a crash event.
Ford contended that the non-deployment was caused not by faulty wire routing, but due to a disconnected airbag diagnostic monitor. Ford’s design expert, Michael Klima of Design Research Engineering in Novi, Michigan, testified that he found the supplemental restraint system’s diagnostic monitor unplugged during an inspection, and as a result the system had been disabled. Additionally, he testified that the separated wire in the engine compartment of the vehicle was pulled apart as a result of tensile loading that developed during the accident long after the front sensors would have closed and sent a signal to deploy the airbags. Ford’s accident reconstruction expert, Dr. Geoffrey Germane of Germane Engineering in Provo, Utah, also presented evidence that the diagnostic monitor and nearby wiring components moved several inches rearward during the crash in concert with each other, thereby rebutting a suggestion from plaintiff that crush intrusion and relative motion of the components caused the disconnection of diagnostic monitor. Further, Dr. Germane and Mr. Klima testified that any movement of the diagnostic monitor during the crash occurred long after the front sensors signaled for deployment. Finally, Ford’s biomechanical expert, Dr. Thomas McNish of Biodynamic Research Corporation in San Antonio, Texas, testified that Robert Brumfield died as a result of a head strike to the A-pillar, and that Mr. Brumfield would have suffered the same fatal injury even with airbag deployment.
During closing arguments, plaintiff’s counsel requested a verdict totaling approximately $8,300,000. After deliberating for approximately 3 hours, the jury returned a unanimous verdict in favor of Ford and awarded nothing to plaintiff. Ford was represented at trial by Keith W. McDaniel, Quincy T. Crochet and Joshua Dierker of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, and by Michael W. Eady of Thompson, Coe, Cousins & Irons, LLP.
Douglas Hayes v. Toyota Motor Sales, U.S.A., Inc.
Lance B. Williams obtained summary judgment on behalf of Toyota Motor Sales, U.S.A., Inc. in an asbestos matter. Douglas Hayes brought suit against TMS alleging exposure to asbestos at a Toyota dealership in Jennings, Louisiana, through brake and clutch repairs performed during his employment. He later died of mesothelioma. After discovery was completed, Federal District Judge Trimble dismissed plaintiff’s claims for two reasons – 1) lack of sufficient product ID and, 2) failure to prove a reasonably anticipated use under the Louisiana Product Liability Act. Plaintiff was unable to demonstrate a connection between any specific product distributed by TMS and Mr. Hayes’ exposure. Further, Judge Trimble found that any repair activity that involved blowing out brake drums during Mr. Hayes’ employment was not a reasonably anticipated use under Louisiana law, given warnings and instructions provided to the mechanics at the dealership. The opinion can be found at 2015 WL 3463491.
Marlene Shanks v. Winn Dixie
Devin Fadaol and Heather Nagel Shockley obtained summary judgment for Winn Dixie Montgomery, LLC, in a personal injury lawsuit alleging multiple injuries from an alleged slip and fall in New Orleans, Louisiana. The plaintiff claimed that she encountered a substance on the ground in one of the aisles, causing her to slip and injure her knee, back, and various other parts of her body. The incident was partially captured on in-store video footage. Defendants filed a Motion for Summary Judgment using the video footage to show that there was no notice of any substance on the ground, and no injury-causing event that could have lead to any possible damages. The trial court judge in Civil District Court for the Parish of Orleans granted Winn Dixie’s Motion for Summary Judgment, dismissing all of the plaintiff’s claims.
Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company
Mike Sistrunk, Lynda Tafaro and Matt Garver succeeded on a Motion to Set Aside a JNOV as absolutely null on behalf of The Republic Group and its insureds. In May, 2013, a jury in the 14th Judicial District Court in Lake Charles returned a verdict in favor of plaintiff for $500,500.00. Plaintiff quickly filed a Motion for JNOV, the trial judge having pre-judged the case, opining in pre-trial conference that the case was valued at close to the $1 million insurance limits based solely on plaintiff’s $275,000.00 in past medical expenses. The Motion for JNOV was granted, and the jury’s award was raised to $1,075,417.90, resulting in an excess judgment against the insureds. Once the defendants’ Motion for New Trial on the JNOV and Motion to Recuse were denied, the trial judge then denied defendants’ appeal, concluding that appeal delays had run. The judge then abruptly resigned from the bench, and a judge pro tempore was appointed. McCranie, Sistrunk was then retained by The Republic Group as appellate counsel for all defendants.
A thorough review of the record revealed that although a judgment had been signed granting the JNOV, the trial court had failed to sign and issue notice of a judgment on the jury’s verdict. Defendants filed a Motion to Set Aside the JNOV as absolutely null, arguing that the court had no jurisdiction to consider the Motion for JNOV as it was premature until the court issued notice of judgment on the jury’s verdict.
The trial judge, pro tempore, denied the Motion to Set Aside, concluding that the judgment granting the Motion for JNOV contained sufficient language to constitute a judgment on the jury’s verdict, thus satisfying the requirements of La. C.C.P. arts. 1911, 1913 and 1916.
The Louisiana Third Circuit Court of Appeal granted and docketed defendants’ application for supervisory writ. After oral argument, the Third Circuit reversed and remanded, agreeing with defendants that the trial court lacked jurisdiction to consider the Motion for JNOV as no judgment had been signed on the jury’s verdict. As, “the judgment granting the JNOV is null on its face,” no appeal delays had begun, and the trial court was ordered to enter judgment in conformity with the jury’s verdict. The JNOV was set aside and the jury’s verdict reinstated. It is paramount that the jury’s verdict be reduced to a signed judgment to start the delays for all post-trial motions and appeals. Thus, delays for post-trial motions and appeals will begin once the trial court issues notice of judgment on the jury’s verdict. In April, 2015, the Louisiana Supreme Court unanimously denied plaintiff’s writ application.
Morvant v. Ford Motor Company
On Friday, February 6, 2015, a jury in Lake Charles, Louisiana returned a defense verdict for Ford Motor Company following a two week trial in a post-collision fire case, rejecting Plaintiffs’ allegation that the brake master cylinder and reservoir assembly in decedent William Morvant’s 2002 Ford F-150 was defectively designed.
The action arose out of a single vehicle collision in January 2008, when Mr. Morvant drove off the road and into a ditch after drinking at two local bars. His vehicle slammed head-on into a concrete culvert in the ditch, causing its rear end to catapult up over the front end before the vehicle came to rest on its passenger side. A small fire began in the engine compartment and eventually progressed through the windshield and into the passenger cab. Though an eyewitness to the accident reported she observed no signs of life from Mr. Morvant when she approached the vehicle immediately after the wreck, Plaintiffs alleged that Mr. Morvant was trapped in the vehicle and “burned alive.”
Decedent’s medical records reflected ongoing treatment for alcoholism, and a post-mortem blood draw by the medical examiner’s office revealed he had a .3% BAC; however, the judge ruled that such evidence was inadmissible. The judge also excluded evidence that decedent was not wearing his seatbelt at the time of the wreck.
Plaintiffs’ experts contended that the polymer brake fluid reservoir in decedent’s F150 was cracked or dislodged from the master cylinder in the collision allowing brake fluid to escape the reservoir and ignite on the exhaust manifold. Plaintiffs’ design engineer, James Mundo, opined that the reservoir was defective because it should have been constructed of metal and should also have been ensconced with a bathtub-like shield to collect any fluids that may leak from the reservoir during a collision.
Ford contended that the fire was caused not by brake fluid but rather due to the release of power steering fluid onto the exhaust manifold, which occurred when the power steering reservoir was smashed against the bulkhead of the vehicle due to the severity of the impact with the culvert. Plaintiffs made no claim regarding the design of the power steering reservoir.
Jack Ridenour, Ford’s design engineer and fire cause and origin expert, testified that the brake fluid reservoir was properly designed, and he ran crash testing that confirmed that it was crashworthy and would have survived the impact intact. Ford’s accident reconstructionist testified to the unique and severe nature of the wreck, explaining that frontal collisions followed by pitched rollovers such as occurred in this case represent only .004% of all collisions. Additionally, Ford’s pathologist and biomechanic both testified that Mr. Morvant could not have survived the initial impact and did not “burn alive.”
Plaintiffs sought a total of eleven million dollars – five million dollars in pain and suffering, and 1.5 million dollars each for Mr. Morvant’s surviving spouse and three adult children. Ford was represented at trial by Keith McDaniel and Lance Williams of McCranie Sistrunk Anzelmo Hardy McDaniel & Welch, LLC in Covington, Louisiana, and by Perry Miles and Lauren Wood of McGuireWoods, LLP in Richmond, Virginia.
Christine Caminita v. Laura Cashio, USAA, and General Insurance Company
Donna Bramlett Wood tried a jury trial in 24th JDC, that defendants successfully defended on medical causation. The plaintiff had a long history of back issues emanating from scoliosis. She was involved in the subject rear end accident on February 13, 2012 and a subsequent rear end accident on March 21, 2012. Dr. Rand Voohries performed an SI joint fuse procedure after both accidents but assigned medical causation to the February 13, 2012 accident. After hearing the evidence and the testimony of Dr. Andrew Todd, defendants’ expert orthopedic surgeon, the jury was swayed that plaintiff could not satisfy her burden of proof that the SI joint injury was caused by the first accident. Plaintiff’s counsel asked the jury for $480,000. and the jury only awarded plaintiff her ER bill from the date of the first accident and $2,000. in pain and suffering for a total jury verdict of $3,710.
Walker v. Winn Dixie, et al
Thomas Anzelmo and Craig Canizaro obtained summary judgment on behalf of the City of Westwego and two Westwego Police Department deputies. Plaintiff alleged he suffered neck, shoulder, and elbow injuries as a result of excessive force and battery, as well as mental anguish as a result of racial profiling by the deputies who responded to an alleged theft at a grocery store. Plaintiff brought claims pursuant to 42 U.S.C. § 1983 for violations of his 14th Amendment rights, as well as state law claims for battery. The defense submitted that plaintiff lacked any evidence of a custom, policy or practice resulting in the violation of a constitutional right, that the officers were entitled to qualified immunity, and that plaintiff lacked any evidence of excessive force, a battery, or racial profiling by the deputies. The Court sided with the defendants, noting the lack of evidence of wrongdoing by the officers and the lack of any custom, policy or practice by the city that lead to a violation of constitutional rights. Accordingly, all claims were dismissed.
Fleming v. Sheriff Newell Normand, et al
Thomas Anzelmo, Kyle Kirsch, and Craig Canizaro obtained summary judgment on behalf of CorrectHealth Jefferson, LLC and two of its nurses. Plaintiff brought claims of medical negligence against the nurses and CorrectHealth arising out of the treatment he received following an alleged chemical exposure to his eye. Plaintiff developed a corneal ulcer that lead to a recommended corneal transplant. The defense submitted evidence and expert testimony that showed that CorrectHealth and its nurses did not breach the applicable standard of care in their treatment of plaintiff’s eye, but instead responded appropriately to plaintiff’s medical complaints and condition. Additionally, the evidence established that plaintiff’s corneal ulcer did not result from the treatment he received from CorrectHealth and its nurses. Accordingly, the Court granted summary judgment in favor of the defense, dismissing all of plaintiff’s claims.
Sylvia Richard v. Cameron Parish School District
Lance B. Williams obtained summary judgment on behalf of the Cameron Parish School Board and Republic Insurance Company. Plaintiff alleged a premises defect in the Grand Lake School Gymnasium. Ms. Richard tripped and fell while working in the concession stand, causing serious injuries to her wrists, shoulders and head. She underwent carpal tunnel releases in both wrists and sought ongoing medical treatment for cervical and neurological injuries. Mr. Williams presented evidence that the condition which allegedly caused plaintiff’s accident was not under the control of the school board, but instead was controlled by an independent organization which ran the concession area. Further, the court concluded that the condition was open and obvious to plaintiff and other workers in the concession stand. Accordingly, all claims were dismissed.
Diane Morgan, As Provisional Administrator of the Estate of Keibreon Morgan, and In Person v. Pam Schooler, et al
Keith W. McDaniel and Heather M. Nagel obtained a defense verdict for the Union Parish School Board following a jury trial in Union Parish, Louisiana in March 2014. Plaintiffs, Diane Morgan and Reginald Bilberry, brought suit as a result of the death of their son, Keibreon Morgan. Keibreon, a sophomore at Farmerville High School, complained of pain and cramping during football practice in September of 2010. After he was pulled from the practice field and addressed, an athletic trainer called an ambulance. En route to the hospital, he lost consciousness, and he later died at the hospital. Following his death, an autopsy revealed a cardiomyopathy or an enlarged heart. His heart weighed nearly two times that of an average heart for a 15 year old.
Plaintiffs filed suit naming the Union Parish School Board; Joe Spatafora, head football coach; and Pam Schooler, former principal. In advance of trial, the trial court dismissed Joe Spatafora and Pam Schooler in their individual capacities, and the trial moved forward against the Union Parish School Board only. At trial, plaintiffs alleged that Keibreon died as a result of a heat related injury. Plaintiffs retained an expert who opined that the coaching staff and athletic trainer were negligent because they failed to remove Keibreon from the heat and into an ice bath when he first reported complaints. Plaintiffs also retained a cardiologist who opined that the Keibreon Morgan’s heart was not enlarged given his height and weight.
The school board defended the plaintiffs’ allegations with evidence demonstrating that Keibreon had undergone a conditioning program during the summer and that the team had a heat related emergency plan and hydration program in place. On the day of Keibreon’s death, coaching staff immediately removed Keibreon from the practice field, provided him water and used an athletic trainer to assess his complaints and symptoms. During the assessment, the trainer properly alerted 911 when she obtained a concerning blood pressure reading.
Defendants called the treating pathologist who testified that the autopsy showed that Keibreon Morgan died of an enlarged heart. Moreover, he explained that Keibreon showed no signs of dehydration, which would have been expected in a death caused from heat exposure. Defendants also retained a cardiologist, who testified that Keibreon suffered from an enlarged heart, which caused him to suffer an arrhythmia that went undetected by the emergency responders because they failed to put him on heart monitor.
Plaintiffs asked the jury to award general damages of $500,000. The jury found that the defendants had not caused the death of Keibreon Morgan.
Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company
Michael Sistrunk, Devin Fadaol and Lynda Tafaro won a victory for The Republic Group in this personal injury lawsuit alleging multiple injuries and surgeries to the legs, hip and lower back as a result of a slip and fall at the Niblett’s Bluff Park. Defendants filed a Motion for Summary Judgment seeking dismissal of all of Plaintiff’s claims pursuant to Louisiana’s Recreational Use Immunity statutes, La. R.S. 9:2791, et seq. The trial court originally granted the Motion for Summary Judgment, then reversed itself in a rehearing. After the Louisiana Court of Appeals for the Third Circuit upheld the denial of Defendants’ Motion for Summary Judgment, Defendants took a writ to the Louisiana Supreme Court. The Louisiana Supreme Court unanimously granted the writ application and granted the Motion for Summary Judgment, concluding that Defendants are immune from liability pursuant to the Recreational Use Immunity Statue.
McNabb v. Ford Motor Company
Keith W. McDaniel and Quincy T. Crochet obtained summary judgment for Ford Motor Company in the 21st Judicial District Court for the Parish of Tangipahoa in two separate lawsuits filed by Hansford McNabb and his wife, Connie McNabb, as a result of a single vehicle accident that occurred on September 17, 2010. According to plaintiffs, as Hansford McNabb was driving west on LA 10 in rural Tangipahoa Parish with his wife, Connie McNabb, riding as a front seat passenger, Hansford lost consciousness and their Ford F-250 veered off a curve and impacted a tree. Connie McNabb sued her husband and alleged he was at fault for the accident. However, Connie and Hansford also sued Ford and alleged that their injuries resulted from the non-deployment of the airbags in the F-250 due to an unspecified manufacturing defect.
Ford pushed plaintiffs for the details of their defect theory and the court ordered the production of liability expert reports, but the McNabbs failed to comply. Ford then moved for summary judgment and argued that plaintiffs developed no proof of a defect and that they deprived Ford of the ability to inspect the vehicle because they failed to preserve it after the accident. Plaintiffs suggested that the doctrine of res ipsa loquitur applied, but Ford countered that under controlling law res ipsa was inapplicable because the case did not present “highly unusual” circumstances and plaintiffs could not exclude other reasonable causes for the non-deployment – namely that the accident simply did not present forces which surpassed the deployment threshold. After hearing oral argument on the motion, the court agreed and dismissed plaintiffs’ claims against Ford, with prejudice.
Brooks v. Brister-Stephens, Inc.
Lance B. Williams obtained a $1,100,000 verdict on a subrogation suit seeking property damage from a house fire. The suit stemmed from a fire which occurred on June 14, 2010, and resulted in a total loss of the home and property of homeowners. The homeowners uninsured losses and their insurer’s subrogation rights were pursued against the air conditioning repair service that performed work on the home four days before the fire. Mr. Williams produced expert testimony which demonstrated that the repairmen damaged the natural gas apparatus for the home, causing a gas leak which was ignited by the air conditioner. The case went to jury trial in the 22nd Judicial District Court, St. Tammany Parish, Louisiana. The jury deliberated for one hour, before finding the defendant 100% liable for all damages on February 5, 2014.
Franklin vs. Ford Motor Company and Jim Taylor Ford Lincoln Mercury, L.L.C.
Keith W. McDaniel and Quincy T. Crochet obtained a defense verdict for Ford Motor Company following a jury trial in Lincoln Parish, Louisiana in January 2014. Plaintiffs, Vivian and James Franklin, brought suit as a result of an alleged inadvertent deployment of the seat-mounted driver’s side airbag in a 2005 Lincoln LS. Vivian Franklin testified that as she was driving the airbag deployed. She described the road on which she was travelling as “smooth as glass,” and she denied hitting any potholes or objects. Although she brought the vehicle safely to a stop after the deployment event, Mrs. Franklin claimed that the deployment caused multiple cervical and lumbar disc injuries including bulges and an annular tear, headaches and chronic pain throughout her body, and difficulty with memory, vision and hearing. Plaintiffs sued Ford and alleged that the side airbag system was defective in manufacture, design and due to inadequate warnings.
Ford defended the system, with data obtained from the diagnostic module of the Lincoln LS. The module’s readout confirmed that multiple sensors within the system sensed necessary crash pulses and deployed the airbag. Ford also presented evidence to demonstrate that elements of the system’s design were state-of-the-art at the time of manufacture, that the system conformed with the custom of the industry in design intent, that the vehicle complied with all applicable Federal Motor Vehicle Safety Standards and that the design properly balanced the risk of deployment in non-crash events with the need for deployment in severe side impact scenarios. Ford also disputed Mrs. Franklin’s claim regarding the condition of the roadway through the use of DOTD records which documented widespread damage in the area of the incident.
To rebut damages and demonstrate the relatively low level of risk from a deployment in a non-crash environment, Ford presented the results of a static airbag deployment test in an exemplar Lincoln LS with an anthropomorphic test device (i.e., a “test dummy”) instrumented with various sensors. The video of the airbag deployment established that the deploying bag moves away from a properly positioned driver. Additionally, sensors in the dummy’s cervical and lumbar spine areas confirmed that forces acting on the dummy were inconsequential and less than the forces experienced through loading the spine during many activities of daily living. Based on these test results, Ford argued that the subject airbag deployment did not cause Mrs. Franklin’s disc injuries and that the deployment was not the source of her ongoing complaints. Instead, Ford contended that Mrs. Franklin’s disc injuries long pre-dated the airbag incident and that her past medical records document longstanding complaints of the same type she claimed started after the airbag deployment.
The jury found that plaintiffs failed to establish a product defect under any of the theories advanced pursuant to the Louisiana Products Liability Act.
Debbie Wallace v. JP Morgan Chase Bank
Devin Fadaol and Lannie Milliman won a victory for JP Morgan Chase Bank in this wrongful arrest lawsuit. The plaintiff claimed that JP Morgan Chase Bank was negligent in calling the police after a co-defendant informed JP Morgan Chase Bank that the check being presented by plaintiff to open a business account was invalid. Judge Wilson Fields in Baton Rouge denied the Motion for Summary Judgment, but the First Circuit Court of Appeals reversed Judge Fields and granted the writ application, dismissing plaintiff’s case against JP Morgan Chase Bank. The First Circuit held that the plaintiff failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial, and that the bank official’s communications to the police were protected by an conditional privilege or qualified immunity.
John and Casie Dekerlegand v. John Arton d/b/a/ Chick-fil-A of I-10 at Louisiana Avenue FSU, et al
15th Judicial District Court, Lafayette Parish – Peter J. Wanek and Trevor C. Davies defended Chick-fil-A in a premises liability case wherein the plaintiffs claimed employees mopped and failed to post caution wet floor signs. The plaintiff claimed he suffered a disabling lower back injury which required epidural steroid injection and trigger point injection therapies for the remainder of his life. Plaintiffs also presented claims for past lost wages, loss of earning capacity, and loss of consortium. Past medical expenses claimed were approximately $60,000 for nearly five years of treatment including ongoing treatment at the time of trial. Plaintiffs alleged economic losses and future medical treatment in excess of $1 million dollars. Plaintiffs asked the jury to award $1.54 million. Result – Defense verdict.
Ella Crosby v. Cajun Operating Co./Church’s Chicken
USDC, Eastern District of LA – Plaintiff claimed that she slipped and fell as a result of an employee mopping and that no caution wet floor signs were posted to warn her of the condition. Plaintiff claimed an aggravation of a pre-existing lower back condition which required surgery. Jury deliberated three hours before rendering a defense verdict finding that the plaintiff did not prove that she fell in the restaurant. Lead defense counsel – Peter J. Wanek
Reynolds v. Nissan
Keith W. McDaniel and Quincy T. Crochet obtained summary judgment in favor of Nissan North America, Inc., in a lawsuit filed by Richard Reynolds in the 22nd Judicial District Court for the Parish of St. Tammany. The case arose out of a five car accident which occurred on Louisiana Hwy. 22 in Mandeville, Louisiana, in March 2008. After initially sideswiping a Honda Accord, the intoxicated operator of a Chevrolet Suburban collided with the rear left side of the plaintiff’s 2003 Infiniti G35. The impact caused the G35 to collide with another car before coming to a rest off the roadway in a ditch. Meanwhile, the driver of the Suburban continued and collided with several other vehicles.
Mr. Reynolds, who sustained personal injuries in the accident, later filed suit against his insurance carrier, an automobile auction company, Nissan and the operator of the Suburban. As against Nissan, Reynolds alleged that his injuries were caused by unspecified defects in the vehicle’s supplemental restraint system. To support his claim, Reynolds retained an expert, Dr. Claude R. Mount. However, Nissan successfully moved to exclude Dr. Mount from trial on the basis that Dr. Mount lacks the experience to testify as an expert in supplemental restraint system performance.
Nissan subsequently moved for summary judgment. Nissan argued that Reynolds lacked expert support for his defect claims. Further, despite years of litigation Reynolds failed to develop or present any proof of a manufacturing defect, a design defect, a warnings defect or a warranty defect pursuant to the Louisiana Products Liability Act. The trial court agreed and granted Nissan’s motion, dismissing it from the suit in August 2013.
Jack B. Harper Contractor, Inc. v. United Fiberglass of America, Inc.
Keith W. McDaniel, Quincy T. Crochet and Heather M. Nagel of McCranie, Sistrunk, Anzelmo, Hardy McDaniel & Welch LLC obtained a favorable result for Prime Conduit, Inc. (“PCI”) following a nearly three-week jury trial in the United States District Court for the Eastern District of Louisiana. Jack B. Harper Contractor, Inc. (“Harper”) filed the lawsuit against United Fiberglass of America, Inc. (“UFA”) and PCI and alleged defects in a multi-cell conduit system referred to as Multi-Gard. Prior to suit, Harper entered a contract with the Louisiana Department of Transportation and Development for the installation of digital messaging signs, cameras and radar, along with underground and structure-mounted conduit to house the power cable and fiber optic cable which serviced and powered the equipment. Harper purchased and installed Multi-Gard for use on elevated portions of Interstates 310 and 10 near New Orleans, Louisiana. UFA and PCI each manufactured certain components of the conduit system, which Harper argued was defective and caused delayed completion of the project. The case proceeded to trial before a jury with Judge Jane Triche-Milazzo presiding. PCI defended Harper’s claims, rejecting the notion that the conduit was defective and arguing instead that any issues encountered by Harper were due to faulty installation techniques. In closing, counsel for Harper asked the jury to cast PCI with 70% fault and UFA with 20% fault, and to award damages totaling almost five million dollars. However, the jury rejected Harper’s request and determined instead that PCI was only 12% at fault. The jury placed the majority of the fault on Harper at 53%, with the remaining 35% fault assessed against UFA. The jury also determined that Harper’s damages totaled less than two million dollars. After applying the fault percentages fixed by the jury, the Court entered Judgment in Harper’s favor against PCI for $229,883.52, a figure which represents less than 5% of the amount requested by Harper during closing arguments.
Hebert v. Specialized Environmental Resources, LLC, et al
Mike Sistrunk, Kyle Kirsch, and Craig Canizaro secured a summary judgment in favor of A-Port, LLC, a dock owner in Grand Isle, on a maritime and state law negligence claim brought by plaintiff, Mark Hebert. Plaintiff alleged A-Port was liable for injuries he allegedly sustained while boarding a vessel from the A-Port dock. He claimed A-Port negligently failed to provide him a gangway for boarding the vessel. Plaintiff’s alleged injuries included the need for a cervical fusion. Plaintiff also brought a claim for lost wages/earning capacity of approximately $1,000,000. The Court agreed with A-Port’s argument that dock owners are not liable under federal maritime law to provide gangways to a ship’s crew. Additionally, the Court agreed with A-Port’s argument that A-Port owed no duty to plaintiff under Louisiana law. Thus, plaintiff’s claims against A-Port were dismissed, with prejudice, at plaintiff’s cost.
Judith Scimeca v. JP Morgan Chase Bank
Devin Fadaol and Lannie Milliman won a victory for JP Morgan Chase Bank and Liberty Mutual Fire Insurance Company in this personal injury lawsuit. Devin Fadaol successfully argued in the Motion for Summary Judgment hearing that: (1) there is no liability for the neighboring landowner/tenant for accidents occurring just outside of a high rise building on a municipal sidewalk; and (2) the neighboring landowner/tenant does not have a duty to repair, warn or inspect municipal property regardless of its proximity to a neighboring high rise building. Judge Janice Clark in Baton Rouge granted the MSJ dismissing Chase Bank and Liberty Mutual from the lawsuit.
Warino v. Lafleur
Tommy Anzelmo and Craig Canizaro successfully represented Westwego City Councilman Larry Warino in an election challenge brought on his behalf seeking the disqualification of a candidate for Chief of Police for the City of Westwego. The Court disqualified the defendant candidate, Roy Lafleur, on the grounds that he was not domiciled within the City of Westwego for the year preceding his qualification as a candidate for Chief of Police. The Court was presented with an array of documents that evidenced Lafleur habitually resided in Bridge City rather than Westwego. In response, Lafleur submitted a 2006 residential lease and voter ID card showing an address within the city. Plaintiff rebutted both documents by noting more recent documents contradicted the lease and voter ID card. The Court determined the plaintiff carried his burden of proof in objecting to Lafleur’s candidacy even in light of the liberal deference the Court must show to the candidate in a residency challenge over his qualifications to run for office. Thus, the Court took the rare step of disqualifying a candidate for elected office on the basis of a lack of domicile.
Case No. 723-920, 24th Judicial District Court for the Parish of Jefferson
Daryl King v. Unum Life Insurance Co. of America
Lauren A. Welch won a summary judgment in favor of Unum Life Insurance Company of America (“Unum”) on a long term disability claim governed by the Employee Retirement Income Security Act (“ERISA”). In the suit, Darryl King argued that Unum improperly denied him disability benefits when a back injury prevented him from continuing his employment as a construction supervisor. In its Motion, Unum argued that the medical restrictions issued by King’s treating internist, Dr. Charles Brunell, were overly restrictive. Unum noted, in particular, that despite Dr. Brunell’s repeated assertions of restrictions and limitations, “physical findings [had] not revealed any dermatomal sensory loss, reflexes have been normal, and there has been no specific muscle weakness noted.” Unum also had learned that King, a former special operations soldier, was running an international security consulting business which employed Dr. Brunell as its staff physician. In the end, Judge Tucker Melancon found substantial evidence in the administrative record to support Unum’s decision to discontinue paying Long Term Disability benefits to plaintiff. Accordingly, King’s claims were dismissed in their entirety. Read the decision.
Edith Harang v. Winn Dixie (Tangipahoa Parish; Amite, Louisiana)
In July of 2012, Devin Fadaol and Heather Nagel won a victory for Winn Dixie Montgomery, LLC, in a premises liability lawsuit involving a plaintiff that tripped on an entrance mat at the front of the grocery store. The plaintiff alleged closed-head injuries and cognitive decline, allegedly the result of a “bunched up” entrance mat. Through the use of in-store video footage, we argued that there was no dangerous condition involving the entrance mat as evidenced by the numerous other customers that walked past the same area immediately before the plaintiff. The trial court judge granted Winn Dixie’s MSJ and dismissed the plaintiff’s lawsuit holding that plaintiff failed to meet her burden of proof that defendants created a defective condition.
____v. Motel 6 (Orleans Parish)
In March of 2012, Devin Fadaol obtained a dismissal of plaintiff’s false-arrest lawsuit through Motion for Summary Judgment in New Orleans, Louisiana. The plaintiff argued that Motel 6 was liable for his emotional distress and physical injuries from being wrongfully incarcerated. Hotel employees called the police and reported a suspected crime based on an odor emanating from the plaintiff’s hotel room. The court granted the MSJ based on testimony from the arresting officers that they had probable cause to make the arrest when they noticed drug paraphernalia in the plaintiff’s hotel room.
Yur-Mar, LLC, et al v. Jefferson Parish
Tommy Anzelmo, Kyle Kirsch, and Lannie Gwartney Milliman successfully defended Jefferson Parish in a number of state and federal lawsuits challenging the constitutionality of a new zoning ordinance establishing regulations and design standards for the “Fat City” area of Metairie, Louisiana. The ordinance was passed following a multi-year study and drafting process, and was intended to address problems of crime, blight, urban decay, and declining property values in Fat City. The ordinance set closing hours for stand-alone bars and nightclubs in Fat City of midnight during the week and 1:00 a.m. on weekends. Prior to the passage of the ordinance, no closing hours existed for these businesses, and many operated late into the night or did not close.
Yur-Mar, LLC, along with several other owners and operators of bars and nightclubs in Fat City, filed several lawsuits in federal court challenging the ordinance as violation of their due process rights, a violation of their right to equal protection, and a 5th Amendment “taking” of their property. The lawsuits also claimed that the new zoning requirements were arbitrary and capricious and lacked a rational basis. Multiple lawsuits were also filed in state district court seeking injunctions that would prevent the ordinance from going into effect in general or as applied to a particular establishment.
Our firm’s attorneys successfully defeated these challenges, obtained a dismissal of all claims against Jefferson Parish, and had the ordinance upheld as constitutional. The federal lawsuits were consolidated and the bar owners appealed the dismissal of their claims to the United States Fifth Circuit, which heard oral argument on these appeals in October 2011. Tommy Anzelmo argued before the Fifth Circuit on behalf of Jefferson Parish, and the court issued a decision affirming the dismissal of all of the bar owners’ claims (Yur-Mar, LLC, et al v. Jefferson Parish Council, et al, 2011 WL 5840265 (5th Cir. 2011)).
Loconte Partners, LLC v. Montgomery & Associates, Inc. and Landmark American Ins. Co.
Peter J. Wanek received a defense verdict in the defense of a commercial roofing contractor who applied a sprayed polyurethane foam roofing system in contiguous warehouse buildings owned by the plaintiff. Plaintiff claimed that the roofs were defective and caused damage to the interior, as well as caused certain economic losses to its business. The plaintiff claimed damages to the roof in the amount of approximately $540,000, as well as additional incidental damages of just under $200,000. The jury in St. Bernard parish deliberated less than an hour before rendering a verdict for the defendants.
Julie Bickett v. Walgreens
Devin Fadaol and Heather Nagel won a victory for Walgreens in a one day bench trial before Judge William Morvant in Baton Rouge. The plaintiff incurred $24,000.00 in medical bills and underwent an open reduction and hardware placement surgery to repair a fractured radius. Walgreens tried the case on liability and the Judge returned a defense judgment finding Walgreens not at fault.
Michael R. Duncan v. Ford Motor Company
Plaintiff sued Ford Motor company, alleging the failure of his vehicle’s airbag to deploy in an accident caused his injuries. Keith McDaniel successfully obtained summary judgment in the trial court. On June 10, 2011, the Louisiana First Circuit Court of Appeals affirmed the summary judgment, providing written reasons. Read Decision
Reno Gregoire, Jr. v. RSUI/Landmark American Insurance Company
Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit. Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Kirk Vaughn in Chalmette granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit.
Maloney Gaming Management, LLC v. St. Tammany Parish
Maloney Gaming Management, LLC sued St. Tammany Parish, alleging that the Parish violated its due process rights under the Louisiana Constitution in enacting an ordinance that prohibits video bingo in the unincorporated areas of St. Tammany Parish. Plaintiff also alleged that it relied to its detriment on the state of the law prior to the ordinance, and expended significant sums in renovating properties that it planned to lease to charitable organizations that would have operated video bingo parlors. The Parish filed a motion to dismiss the action on the grounds that the ability to operate video bingo parlors is a revocable privilege, and not a protected property right. The Parish further argued that plaintiff, as a commercial lessor, was prohibited by law from operating video bingo, and could not reasonably rely that a third party would be allowed to conduct video bingo in the future. Although the district court denied the motion to dismiss, Tommy Anzelmo and Kyle Kirsch, with Lannie Gwartney Milliman assisting on the appeal, successfully appealed the ruling to the Louisiana First Circuit Court of Appeal, who overruled the trial court and ordered the dismissal of the plaintiff’s claims against the Parish.
Amy Ochello v. RSUI/Landmark American Insurance Company
Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit alleging brain damage to the plaintiff. Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Rosemary Ledet in New Orleans granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit.
Aluminum Fabrications v. St. Charles Gardens Association
Donna Wood of McCranie Sistrunk represented the defendants in a case that after the plaintiffs rested their case, Judge Landrieu granted defendant’s Motion for Directed Verdict, dismissing plaintiff’s breach of contract claim.
Weiss V. Mazda
The Louisiana Fifth Circuit Court of Appeal has upheld a grant of summary judgment for Mazda Motor of America, Inc. and Royal Oldsmobile Company, Inc. The opinion can be found at http://www.fifthcircuit.org/Opinions.aspx by searching for Case No. 10-CA-608.
Lance B. Williams and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC obtained the judgment for Mazda and Royal in March of 2010 in the case of Elizabeth L. Weiss and John Weiss v. Mazda Motor Corp, et al., in the 24th Judicial District for the Parish of Jefferson, Case No. 536-515. The plaintiffs filed the product liability action seeking damages against Mazda and Royal for injuries allegedly sustained when the airbag deployed after Elizabeth Weiss struck a parked vehicle in her 1994 Mazda MX3 in Metairie, Louisiana. The plaintiffs claimed that the impact was minor and at an offset angle and thus the airbags should not have deployed. They alleged that the supplemental restraint system was defective in design and for failure to provide adequate warnings. The summary judgment argued that plaintiffs had failed to develop any evidence to prove that the vehicle was defective pursuant to the Louisiana Product Liability Act, and absent expert support all claims should be dismissed. Judge William “Chuck” Credo, III, agreed and granted the defendants’ motion on March 30, 2010. In his written reasons, Judge Credo explained that “Mazda provided adequate warnings regarding the activation and any potential dangers associated with airbag deployment.”
The plaintiffs subsequently appealed the dismissal of their claim to the Louisiana Fifth Circuit Court of Appeal. The Appellate Court determined that Mazda adequately warned the plaintiffs that the air bags could deploy in a frontal or near frontal accident of moderate impact, and that Mr. & Mrs. Weiss failed to produce any evidence that the subject accident resulted in less than a moderate impact. Thus, the plaintiffs were unable to establish proximate cause. In addition, the Fifth Circuit determined that the only proposed alternative warning presented by the plaintiffs’ counsel would be inapplicable to the subject accident. After noting that a plaintiff prosecuting a failure to warn claim cannot prevail based on a mere allegation of inadequacy, the Fifth Circuit affirmed the ruling of the trial court and upheld the summary judgment in favor of Mazda and Royal.
Unum Wins Summary Judgment on Accidental Death Claim
On June 8, 2010, Lauren A. Welch prevailed on a motion for summary judgment on behalf of Unum Life Insurance Company of America (“Unum”) in an ERISA suit in the United States District Court for the Eastern District of Louisiana. Plaintiffs, beneficiaries of decedent Timothy D. Letter, were seeking in excess of $200,000 Accidental Death and Dismemberment (AD&D) benefits under an Employee Life Insurance Plan owned by Pepsi Americas, Inc. and administered by Unum. Prior to his death, Mr. Letter had been declared disabled and was receiving disability benefits under a separate employee benefit plan. In addition to disability benefits, this plan provided that a disabled employee was entitled to have his life insurance premiums waived. Plaintiffs argued that the waiver should have also included the premiums necessary to continue his AD&D coverage. Unum disagreed on the grounds that the AD&D coverage was separate and distinct from the standard life insurance. Furthermore, the terms of the policy did not provide for an AD&D waiver of premium. Judge Carl J. Barbier came down squarely on the side of the insurer noting that “the Life Insurance and the AD&D benefits contain separate and distinct sections relating to eligibility, coverage and payment amounts…. Therefore, it is unclear to the court how Letter to have believed that the clause applied to both the Life insurance and the AD&D provision.” Accordingly, plaintiffs’ case was dismissed with prejudice.
Michael Sistrunk, Kyle Kirsch, and Craig Canizaro won a victory for Winn Dixie Montgomery, LLC in the case entitled Goodluck Edibiokpo v. Peterman, et al, 2010 WL 1930081 (E.D.La. 5/10/2010), where plaintiff sought damages from Winn Dixie under 42 U.S.C. 1983 and La Civil Code article 2315. The plaintiff, a commercial truck driver, claimed Winn Dixie violated the Federal Motor Carriers Act by asking him to leave its premises following the completion of his delivery and that Winn Dixie was liable for the injuries he allegedly sustained as a result of alleged actions by police officers when they arrived to escort plaintiff from the property. The Court granted Winn Dixie’s F.R.C.P. Rule 12(b)(6) Motion to Dismiss, agreeing with Winn Dixie that plaintiff failed to state a claim under either 42 U.S.C. 1983 or Louisiana law. Specifically, the Court held Winn Dixie did not have a duty to prevent plaintiff’s injury at the hands of police officers. Accordingly, the Court found that Winn Dixie could not be found to be the legal cause of plaintiff’s injuries.