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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.

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Jessica Faust v. United Services Automobile Association

Jessica Faust v. United Services Automobile Association
(April 2017)

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.

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Casey Krueger vs. La Quinta Inn & Suites

Casey Krueger vs. La Quinta Inn & Suites
(April 2017)

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.

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Automobile Products Liability Matter

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Recently, a jury in the United States District Court for the Middle District of Louisiana returned a defense verdict for an automobile manufacturer rejecting plaintiff’s claim that a manufacturing defect in a vehicle’s steering system 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 automobile manufacturer.

The single vehicle crash occurred in the median of westbound I-10 in south Louisiana. As the vehicle traveled in the inside lane of travel, it moved to the right into the outside lane of travel forcing a motorist to move onto the shoulder to avoid a collision with it. The driver of the vehicle 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 vehicle 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 the driver dead at the scene.

Plaintiff’s accident reconstruction expert testified that EDR data indicated that the vehicle’s driver attempted right steer inputs while the vehicle continued its leftward travel motion. According to him, these right steer inputs should have changed the vehicle’s path of travel, allowing the driver to avoid the tree impact. Experts for the defense countered this testimony with evidence demonstrating that because of the speed of travel and the severity of leftward steering input, the vehicle lacked sufficient time and distance on an appropriate friction surface to correct its path of travel prior to striking the tree line. Additionally, based upon physical evidence found at the scene and on the remaining components of the vehicle, the experts demonstrated that the broken components plaintiff claimed evidenced a manufacturing defect, in fact, evidenced damage caused from the accident.

Plaintiff, the only surviving child of the driver sought more than $1.2 million dollars. The jury of 8 unanimously rejected her request and rendered a defense verdict in favor of the defense.

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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.

 

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Ruffin v. Stewart and Associates, and Republic Vanguard Insurance Company

Ruffin v. Stewart and Associates, and Republic Vanguard Insurance Company
(November 2016)

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.

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Tiffany Roy and Glenda Abate, et al v. Republic

Tiffany Roy and Glenda Abate, et al  v. Republic
(September 2016)

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.

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Deloris Butler, et al vs. Billy David, The Town of Welsh, and Southern Insurance Company
(June 2016)

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.

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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.

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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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