Author: Keogh Cox

Minimal Force of an Impact Matters in Car Accident Litigation

09.23.2019

For years, Louisiana plaintiffs attorneys have argued that the force of impact in an auto accident is not determinative of their clients’ injuries and should be afforded little, if any, weight. A recent decision out of the Louisiana First Circuit Court of Appeal does damage to that argument. In Jones v. Bravata, Jr. and The City of Baton Rouge, 2018 CA 0837 (La. App. 1 Cir. 5/9/19), the First Circuit upheld the trial court’s jury instruction on “force of impact” where photographs showed only minor damage and the defendant described the accident as a “bump.”

The accident occurred when a City employee rear-ended the plaintiffs’ vehicle. Liability was stipulated and the only question at trial was damages. Mrs. Jones alleged severe neck and back injuries. She began treatment with an orthopedist within a week of the accident and thereafter received five “relatively non-invasive surgical procedures” in lieu of a lumbar fusion surgery. The jury returned a verdict of $200,000, which included $150,000 in past medical expenses and $35,000 in future medical expenses, but awarded little for general damages. Mrs. Jones appealed the verdict, asserting that the trial court erred in instructing the jury on force of impact.

The “force of impact” jury instruction in dispute provided:

While the force of a collision may be considered in determining whether a person was injured by an accident and the extent of the injuries sustained, it should not be the only factor to consider in making such a determination. Even though the force of impact may be slight, it does not preclude an award of damages. However, in determining causation, you may consider the minimal nature of the accident.

In considering the plaintiff’s assignment of error, the First Circuit noted that Mrs. Jones was correct that no witness specifically testified that the accident was too minor to have caused her injuries. However, there was evidence in the record upon which the jury could have reached the conclusion that this was a minimal impact.

Common sense would appear to support a connection between the force of an impact and the injury one could be expected to suffer. The recent Jones decision allows defendants to promote this common sense argument. Where the claimed injuries are disproportionate to the forces involved, this argument can make the difference at trial.

John Grinton is a partner of the firm admitted in state, federal and appellate courts throughout Louisiana. His practice focuses on commercial and construction litigation, representing insurance companies, architects, engineers, contractors and other businesses in all aspects of litigation. His workers’ compensation practice includes representing clients in medical billing disputes, healthcare provider disputes, statutory/borrowing/special employer disputes, and court approved settlements. John has been involved in complex cases involving construction defect claims, breach of contract and negligence actions, insurance coverage issues, lender liability, securities litigation and personal injury matters. He has firsthand experience in jury trials and arbitration’s, as well as mediation, appellate briefing and oral argument.

Keeping Testimony of Future Medical Expenses “Out of the Gate”

06.17.2019

In a recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in Michael Brander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982 (Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projected medical expenses because it was not based on a reliable methodology. This ruling stands to impact many other cases where plaintiffs seek to use far-reaching projections of a life-long need for radiofrequency ablations (“RFAs”) or other pain-management modalities to “board” six and even seven-figure numbers for future medical expenses.

In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court recognized the trial judge as the “gatekeeper” of expert opinion testimony and held that only reliable and relevant expert opinions may be admitted. The reliability requirement serves to keep expert opinions “outside the gate” when they constitute unsupported speculation or mere subjective belief; only scientifically valid expert opinions are allowed inside. To ascertain whether an expert opinion is scientifically valid, Daubert instructs the trial court to consider:

∙ whether the expert’s theory can or has been tested;

∙ whether it has been subject to peer review and publication;

∙ the known or potential rate of error when applying the theory;

∙ applicable standards and controls; and,

∙ the degree to which the theory has been generally accepted in the scientific community.

In Brander, the plaintiff advanced medical testimony that he would need RFAs every year of his expected lifetime, a period of 36 years. The court disallowed the testimony, noting that the plaintiff’s physicians had less than ten years personal experience in administering RFAs to patients, the medical literature only considered the effectiveness of RFAs over a span of seven to ten years, and there was no showing that the 36-year treatment plan was in general acceptance by the medical community. According to the court, the expert opinions offered by plaintiff failed Daubert “on all points.” As a result, the plaintiff was permitted to introduce testimony of future RFAs for only a seven-year period.

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.

Nursing Home Liability: Big Brother is Watching Granny?

04.01.2019

As an integral theme to his best-selling novel Nineteen Eighty-Four, George Orwell once used the slogan: “Big Brother is Watching You.” This slogan embodied the idea that a person’s actions and intentions are being monitored by the government as a means of controlling and suppressing the will of the populace.

Although not as extreme as Orwell’s dystopian novel, Louisiana families will now be able to install video monitoring systems in their loved ones’ nursing home rooms pursuant to Act 596 of the 2018 Regular Session of the Louisiana Legislature. According to the “Nursing Home Virtual Visitation Act,” nursing homes can not prohibit the cameras or retaliate against residents who want to install them. The video systems will monitor residents who often cannot speak for themselves.

However, several requirements must be met to abide by the Act:

The resident, or family if the resident lacks capacity, must provide notice of installation to the facility;
Visual recordings must include date and time;
The device must be stationary and fixed, not oscillating;
Residents must pay all costs for installation, upkeep, and removal;
Written consent is required from all roommates;
Room changes are required if a roommate does not consent;
Residents and applicants cannot be retaliated against for authorizing devices; and
Signage must be installed at the front door of the facility (at the facility’s cost) and at the resident’s room (at the resident’s cost) advising of surveillance in the rooms.

Furthermore, nursing homes must provide forms to nursing home residents, or their legal guardians, outlining the ways the cameras can be installed. Under the Act, surveillance should be addressed at admission as a resident right. To promote compliance, the Act prohibits the use of any recordings in litigation when the device was installed or used without the nursing home’s knowledge or used without adherence to the required forms. Additionally, compliance with the Act is a complete defense against lawsuits brought purely because monitoring devices are in use.

Nursing facilities and the families of residents and patients should take care to comply with all of the requirements in the act to ensure that the video footage is actually admissible and that the facilities are not opening themselves to privacy lawsuits from other residents. “Big Brother” might not be watching, but the increase in affordable, high quality, surveillance cameras, coupled with the Virtual Visitation Act, means nursing facilities should anticipate that someone could be watching very soon.

Kids and Pets Left in Vehicles: Louisiana Legislature Makes Rescuers Immune, Maybe

03.06.2019

Louisiana summers are hot and humid. Suffocating. Temperatures in July and August regularly exceed 100 degrees, but the temperature inside a parked car is even higher. According to the Centers for Disease Control, the inside of a parked car can reach 130 to 172 degrees when the outdoor temperature is between 80 and 100 degrees. Cracking the windows or parking in the shade has little effect. Because it only takes 10 minutes for the interior temperature of a parked vehicle to rise 20 degrees, children and animals left alone for “just a few minutes” are at risk. On average, 37 children and hundreds of pets die of vehicular heat stroke each year. In an effort to address this problem, the Louisiana Legislature recently passed a law to encourage action.

The Legislature enacted two statutes to provide immunity from claims of property damage or trespass for any person causing damage to a motor vehicle while rescuing a minor or animal in distress. La. R.S. 37:1738 et seq. provides immunity if the person:

Makes a good-faith attempt to locate the owner before entering the vehicle.
Contacts local law enforcement, the fire department, or calls 911 before entering the vehicle.
Determines that the vehicle is locked and has a good-faith belief that there are no other reasonable means for the minor or animal to be removed from the vehicle.
Believes that removal of the minor or animal from the vehicle is necessary because the minor or animal is in imminent danger of suffering harm.
Uses force that was reasonably necessary under the circumstances to enter the vehicle.
Places a notice on the windshield of the vehicle providing details of the person’s contact information, the reason entry was made, the location of the minor or animal, and notice that the proper authorities have been notified.
Remains with the minor or animal in a safe location reasonably close to the vehicle until emergency responders arrive. If the person cannot remain with the minor or animal, the person must do the following:
For a minor: notify local law enforcement, the fire department, or the 911 operator and take the minor to the closest police station or hospital.
For an animal: notify local law enforcement, the fire department, animal control, or the 911 operator and take the animal to the closest shelter.

One wonders if a person reacting in an emergency will remember to leave a detailed note or to make the call before they act. If they do not, the immunity may be lost because immunity statutes are strictly construed in Louisiana. Also, the immunity does not apply to bodily injuries suffered by a minor during the rescue activities.

So, if you see a child or animal in danger in a hot car, the law now allows you to act with immunity, maybe.

Treating Physician Testimony – Pitfalls for Plaintiffs & Opportunities for Defendants

10.24.2018

A party that wants to rely upon the testimony of a treating physician to support a personal injury case in federal court should be sure to consult the Federal Rules of Civil Procedure. Different rules will apply depending on the scope of the treating physician’s testimony.

Rule 26 sets two standards for expert disclosures. 26(a)(2)(C) sets a “lower standard” that typically applies to treating physicians. Under this standard, the treating physician may provide testimony beyond his personal knowledge, but he must base his opinions on “facts or data obtained or observed in the course of the sequence of events giving rise to the litigation.” LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475 (E.D.La. Nov. 13, 2013). Further, the physician may be permitted to testify regarding causation and future medical treatment if these opinions come from the doctor’s actual treatment of the party.

Under this “lower standard,” the party seeking to offer the physician’s testimony, usually the plaintiff, must timely disclose: (1) the subject matter on which the treating physician is expected to present evidence; and (2) a summary of the facts and opinions to which he is expected to testify. Importantly, production of a plaintiff’s medical records alone is not sufficient – the plaintiff must actually provide a summary of the physician’s opinions. See e.g. Williams v. State, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015). If the party fails to timely disclose this information, he runs a substantial risk of having his testimony excluded from trial.

Where the physician’s testimony goes beyond the medical records or his treatment of the plaintiff, a “higher standard” can apply to the physician’s testimony. Rule 26(a)(2)(B). The physician may be required to produce a complete expert report to disclose: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of publications authored in the last 4 years; (5) a list of all cases the expert has been used as an expert at trial or in depositions; and (6) a statement of the compensation the witness is to be paid for his work and testimony.

Application of this “higher standard” often turns on the frequency and recency of the physician’s treatment. Courts are also more likely to apply the higher standard when the physician’s opinions are based general scientific knowledge of the plaintiff’s condition rather than his actual treatment of the plaintiff.

John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

Creating Obstacles to Frivolous Claims

08.24.2018

The costs of litigation can be substantial, but a seldom used statute arms defendants with a tool to minimize these costs. If a defendant has not filed another pleading, La. R.S. 13:4522 allows the defendant to request that a court order the plaintiff to post a bond as security to cover certain costs. If the plaintiff fails to post this security in the time fixed, his case will be dismissed without prejudice.

The security identified in this statute can include expert witness fees, deposition costs, exhibit costs, and other related expenses. The defendant bears the burden of showing the amount needed for proper security. If a plaintiff’s damages are questionable, or preliminary investigation shows that the plaintiff might be apportioned most of the liability for the incident, the attorney filing the suit may think twice before pursuing the claim further, especially if a substantial amount of security is ordered.

By its terms, the statute does not apply to cases brought in forma pauperis. It also does not apply to claims filed in the Parish of Orleans. Everywhere else, the provisions of La. R.S. 13:4522 can add a layer of protection in the defense of frivolous claims.

John Grinton is a Keogh Cox associate whose practice areas include commercial and construction litigation. When not practicing law, John spends most of his time with his wife and son, and their two dogs.

Past Mistakes: Waiver of Coverage Defenses

07.23.2018

What does it mean to “waive” something? To an insurer in Louisiana, the meaning is clear; a waiver can mean thousands or even millions of dollars in insurance coverage that may otherwise be excluded. Recently, the Louisiana Supreme Court in Forvendel v. State Farm Mutual Automobile Insurance Company, 2017-C-2074 (June 27, 2018) clarified when an insurer will be found to have waived coverage defenses.

Waiver is generally understood as the “intentional relinquishment of a known right, power, or privilege.” Waiver occurs when there is: 1) a right; 2) that is known; and, 3) an actual intention to forego the right or conduct so inconsistent with an intent to enforce the right so as to induce a reasonable belief that it has been relinquished. The waiver rule is generally applied to an insurer who defends itself and its insured without having obtained a nonwaiver agreement to preserve its coverage defense. The joint defense of the insured and the insurer, without asserting a known defense, is deemed to be conduct inconsistent with the enforcement of the coverage defense and therefore a waiver.

In Forvendel, the Louisiana Supreme Court considered whether an insurer’s waiver of a coverage defense in a prior claim served to waive the coverage defense in a subsequent claim involving the same insured and similar circumstances. The key issue in the case was whether the insurer’s conduct in allowing the same insured to “stack” two UM coverages contrary to Louisiana’s “anti-stacking” law (La. R.S. 22:1295 (1)(c)) when adjusting an accident claim in 2007 served as a waiver of the right to assert the anti-stacking law when adjusting a 2013 accident claim.

Luckily for insurers, who could be forever bound by past mistakes in their handling of claims, the Louisiana Supreme Court reversed the two lower courts and found the right was not waived. In so ruling, the Court distinguished prior case law in which a coverage defense was found to have been waived because the insurer’s conduct took place while handing the same claim, not a prior claim. The Louisiana Supreme Court also drew on a line of cases that allowed insurers to recover previously made payments under well-established principles of Louisiana law allowing for the recoupment of payments not due.

The Forvendel case provides a common-sense result by relieving insurers from unintended consequences from past omissions in the handling of an insured’s new claim.

Nancy B. Gilbert is a partner with Keogh Cox. She is a puzzle-solver by nature and uses these skills to provide clear and in-depth analysis of complex litigation issues. Nancy is a devoted grandmother, an avid camper and gardener, and enjoys renovating her 80-year-old home.

Construction Law: The Limits of Anti-Indemnity in Louisiana

05.01.2018

Louisiana’s anti-indemnity statute applicable to construction contracts, R.S. 9:2780.1, became law in 2011. The statute renders unenforceable any provision in, or collateral to, a construction contract that purports to indemnify or hold harmless a person from liability for its own negligence, or has the effect of doing so. Since the law’s passage, few court decisions have interpreted its seemingly broad language and many questions remain as to the law’s full impact.

The obvious intent of the anti-indemnity law is to avoid shifting liability away from a party at fault to another person. To this end, the language in the statute nullifies any agreement that has “the effect of holding the person at fault harmless.” But what about “limit of liability” provisions? Arguably, such provisions have the effect of holding harmless the party at fault. Does a limit of liability provision, otherwise valid and enforceable under Louisiana law, run afoul of the anti-indemnity statute? After all, those parties with superior bargaining power in construction contracts will seek to insulate themselves from liability to the fullest extent allowed by law, and will look for alternatives to the indemnity provisions that now expressly violate public policy.

One court recently held that R.S. 9:2780.1 does not prohibit a limit of liability provision in a construction contract. In Patriot Contracting, LLC v. Star Insurance Company, (E.D. La. 3/01/2018), the construction contract contained a provision that excluded liability of the architect for good faith decisions made during contract administration. The plaintiff/contractor alleged that the architect was negligent in its contract administration duties and caused it to suffer economic loss. The court dismissed the claim, rejecting the contractor’s argument that the provision violated the anti-indemnity law.

The Patriot court explained that the statute prohibits an indemnity agreement, i.e., where one party agrees to reimburse a second party for damages for which the second party becomes liable to a third party. However, the anti-indemnity law did not impact the provision that excluded the contractor’s right to recover from the architect. Thus, at at least according to one court, parties in construction contracts are still free to include limit of liability provisions.

Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors, and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga, and encouraging her husband in his gardening and cooking endeavors.

You’ve Been Served – Now What? Understanding “Louisiana’s Pre-trial Procedure”

08.29.2017

A deputy arrives at your home or office and announces that you have been served. You quickly realize you have been named as a defendant in a lawsuit. Now what?

Whether the suit involves a breach of contract, an automobile accident, or the one and a million other circumstances that can lead to a suit being filed, the process is essentially the same in Louisiana state courts. This blog provides a general roadmap of Louisiana’s “pre-trial” procedure, which applies in most situations. Different procedures are involved with workers’ compensation claims, administrative proceedings, medical malpractice claims, and other areas.

Petition/Answer – When a person or company believes they have been damaged by fault, breach, or neglect, Louisiana law provides that the person allegedly wronged, the plaintiff, may file a Petition for Damages. Louisiana does not have a “loser pays” system. For this reason, there is little disincentive to a plaintiff who wants to sue. Once the Petition is filed with the Clerk of Court, the Sheriff serves the defendant with a certified copy of the Petition and the “Citation.”

A defendant has fifteen days to file an Answer or to secure an extension from either the plaintiff attorney or the Judge, by filing a Motion for Extension of Time to File Responsive Pleadings. A failure to respond to a suit or obtain an extension within 15 days of service may result in a default judgment.

Trial by Judge or Jury -The parties advise if they desire a judge or jury trial in the initial filings. There is no right to a jury in cases which do not have a possible value of more than $50,000. If a plaintiff “stipulates” that case value is at or below $50,000, the defendant has no right to demand a jury trial under Louisiana Code of Civil Procedure article 1732.

Exceptions – Defendants have the right to raise “exceptions” to the suit. Common exceptions include a claim that the suit is vague; is filed in the wrong venue (i.e., the wrong location); or is untimely, and therefore “prescribed.” Defendants can use the exception process to challenge the plaintiff’s legal ability to recover. Many exceptions are waived if they are not filed before or with the Answer.

Discovery

Written – After the Answer is filed, the discovery process typically begins. Discovery is an information-gathering process done through different methods. The parties to a lawsuit may issue written Interrogatories, Requests for Admission, and Requests for Production of Documents.
Depositions – Depositions are a key component of discovery. A deposition allows the attorneys (or the parties themselves, if unrepresented) to ask questions of witnesses before a court reporter. The testimony is taken under oath and can be used later for certain purposes. For example, if the witness is not available to testify at trial, the deposition testimony can often be introduced in lieu of live testimony. Also, if a witness changes his testimony at trial, the deposition can be used to attack the testimony and credibility of the witness.

Case Deadlines – Typically, the court will establish a scheduling order to establish key dates such as deadlines to identify witnesses, exhibits, and any experts who may testify on behalf of the parties. The court often sets a deadline to file “dispositive” motions, such as motions for summary judgment where the plaintiff or the defendant tries to have the case determined before the trial.

Alternative Dispute Resolution – Frequently, the parties agree to attempt to mediate the case with the assistance of a mediator. This is a voluntary process. In some cases, the parties will be bound by an agreement to arbitrate which will be conducted outside of the normal court process.

There is no law or statute which sets the time frame for the “pre-trial” process. Depending upon the complexity of the suit, the pre-trial phase of a suit may take months, and often years.

The “Collateral Source Rule” & How it Can Cost (or Make) You Thousands – Part I

07.14.2017

Imagine you are a defendant sued because you negligently injured someone in Louisiana. In the accident, the plaintiff received extensive medical treatment. The health insurer paid $50,000 for medical costs even though the doctors billed $150,000 for the plaintiff’s care. The plaintiff was only out-of-pocket $500 for his health insurance deductible. What amount should you have to pay: $150,000, $50,000, or only $500?

The answer to this question is not so simple. You will certainly have to pay more than the plaintiff’s deductible, that much is clear. But whether you are required to pay the medical providers’ full rate of $150,000, the insurer’s discounted rate of $50,000, or some other amount for the medical services provided is a more complicated issue.

This blog is broken down in a two-part series. This installment will address the background of the collateral source rule and the public policy behind the rule.

What is the Collateral Source Rule?

The collateral source rule provides that a tortfeasor is generally not entitled to a credit for payments made to a plaintiff through “collateral sources,” i.e., sources not provided by the defendant. Under this rule, a tortfeasor’s exposure for damages should be the same regardless of whether or not the plaintiff purchased health insurance.

The collateral source rule permits the plaintiff to recover medical expenses in excess of the amounts actually paid by the plaintiff or their insurer. Critics therefore assert that the rule provides a “windfall” to the plaintiff that violates the goal of Louisiana tort law, namely to make the victim “whole.” As applied, the rule can make the victim more than whole.

Origins of the Collateral Source Rule

To understand the collateral source rule, it helps to look at its origins. The rule in the United States at least dates back to the 1854 case The Propeller Monticello v. Mollison, 58 U.S. (17 How.) 152, 15 L.Ed. 68 (1854). In Propeller Monticello, two ships wrecked and one sank. The insurer of the ship that sank paid for the loss. The owner of the at fault ship asserted that the plaintiff had been fully compensated by the insurer’s payment and that it was therefore not obligated to pay for the damage. In rejecting this argument, the Propeller Monticello Court held the defendant was not a party to the insurance contract and could not reduce exposure by citing to the insurance available to the plaintiff.

Policies Behind the Collateral Source Rule

In Dep’t of Transp. & Dev. v. Kansas City S. Ry. Co., 846 So. 2d 734 (La. 5/20/03), the Louisiana Supreme Court detailed the public policy concerns that support the collateral source rule. According to the court, the policies in favor of the rule include:

i. Fairness– a defendant should not gain an advantage from benefits provided to the plaintiff independent of any act of the defendant;

ii. Deterrence– the rule provides a deterrence to negligent conduct; and,

iii. Promotion of Insurance– victims could be dissuaded from purchasing insurance if that act could affect tort recovery.

So, how much do you owe: $50,000, $150,000, or some other amount? We’ll tell you in Part II of this blog.

The Rise of the Drones

06.20.2017

Drones play an increasing role in modern life; all indications are that this role will increase, maybe to disturbing levels. The popularity and availability of drones have sky-rocketed in recent years. As with most new technologies, the development of the law to regulate this technology lags behind. To their credit, the DOT and FAA have been pro-active in developing regulations. This article will address some of these regulations and the expected development of future regulations.

Initially, the FAA prohibited the use of drones in the commercial industry. Gradually, the FAA granted exemptions to certain companies for the commercial use of drones. These exemptions permitted these companies to use drones for:

(i) the movie and video industry;

(ii) real estate photography;

(iii) agricultural monitoring;

(iv) aerial surveying;

(v) delivery of medical supplies in rural areas; and,

(vi) inspecting flare stacks

Applying for exemptions can be costly and the outcome is not guaranteed. However with growing commercial demand, the FAA has gradually loosened its restrictions and granted more exemptions.

The FAA and DOT finalized the first operational rules for routine commercial use of drones which took effect in August 2016. These regulations are available at: http://www.faa.gov/uas/media/Part_107_Summary.pdf. The issuance of these regulations is projected to generate $82 billion for the U.S. economy and create more than 100,000 jobs over the next ten years.

While these regulations are fairly comprehensive, they prohibit the use of drones beyond the line of sight of the operator over unprotected persons on the ground. Further, there are limitations on size and when drones can be flown. Based on these restrictions, plans to use drones for delivery services will likely have to wait. However, the FAA is permitting companies to apply for waivers, available if companies demonstrate that the proposed flight will be conducted safely. Even if a drone flight is permitted, air traffic control authorization is required if the flight is in controlled airspace. Requests for waivers and authorization must be applied for on the FAA’s online portal located at https://www.faa.gov/uas/.

The FAA is trying to balance the benefits of drone use with its mission to protect public safety. The FAA also provides all drone users with recommended privacy guidelines and is set to issue new guidance to local and state governments on drone privacy concerns.

The White House announced that the FAA is currently working on developing regulations to permit the safe and beneficial use of drones over crowds. As part of this development, the FAA launched an Unmanned Aircraft Safety Team and a Drone Advisory Committee.

We expect the FAA to allow a more expansive use of drones in the years to come. Like it or not, the drones are here and are not going away; they are rising.

“IME” Killer Bill Put Down

05.19.2017

The Louisiana plaintiffs’ bar recently sought to tilt the scales of justice through Senate Bill 185, a bill seeking to complicate a defendant’s efforts to obtain an Independent Medical Examination (“IME”). An IME is an examination of the plaintiff by a physician or medical examiner hired by the defense. IMEs are important in the defense of a case and often act as a catalyst for settlement or to reduce the value of a claim.

Bill 185 was introduced by Senator Jay Luneau (D) and passed with a unanimous 35 – 0 vote in the Senate. The bill proposed amendments to Louisiana Code of Civil Procedure Article 1464 to impose the following conditions upon IMEs:

All parties would be barred from referring to an IME as “independent” in the presence of a jury.
A plaintiff could not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty, regardless of the number of defendants.
The party to be examined would have the right to have a person of his or her choosing present during the exam, including the plaintiff’s attorney.
The party to be examined would have the right not only to have the entire examination videotaped, but the ability to force the party requesting the examination to pay for all associated costs.

Were these conditions enforced, many physicians might have chosen not to provide IMEs at all when the process would involve: a potentially adversarial plaintiff’s attorney; a patient room packed with video equipment; and, the spectacle of it all captured on tape. Further, the bill would have stifled the ability to defend injury claims.

We may never know what effect these changes might have brought. On May 16, 2017, the House Civil Law and Procedure Committee, involuntarily deferred on a 4-4 vote. This action effectively killed the bill and saved the IME as currently understood.

By: John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife, Kellye, and their two dogs.