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

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

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

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

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

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

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

After hearing four days of testimony, the jury returned a verdict in favor of the defendants after deliberating just over 20 minutes.   Dr. Wong and LSUHSC were represented by McCranie Sistrunk.

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

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

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

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

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

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

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Mary Boyd v. Winn Dixie

Mary Boyd v. Winn Dixie
(July 2015)

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

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Brumfield v. Ford Motor Company

Brumfield v. Ford Motor Company
(June 2015)

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.

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Douglas Hayes v. Toyota Motor Sales, U.S.A., Inc.

Douglas Hayes v. Toyota Motor Sales, U.S.A., Inc.
(May 2015)

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.

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Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company

Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company
(April 2015)

Mike Sistrunk 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.

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Marlene Shanks v. Winn Dixie

Marlene Shanks v.  Winn Dixie
(March 2015)

Devin Fadaol and Heather N. 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.

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Morvant v. Ford Motor Company

Morvant v. Ford Motor Company
(Febuary 2015)

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.

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Christine Caminita v. Laura Cashio, USAA, and General Insurance Company

Christine Caminita v. Laura Cashio, USAA, and General Insurance Company
(September 2014)

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.

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