Category: Appeal

Who Gives a Fuss about an Oxford Comma?

Who Gives a Fuss about an Oxford Comma?

Some judges do. And a missing comma might cost $10 million.

By: C. Reynolds LeBlanc

Let’s take a trip back to middle school for a quick grammar review. Before I was a lawyer, I taught English. Diligently, I taught my students the importance of proper comma usage but never imagined that the fate of a multi-million dollar lawsuit would rest on how this simple mark on the page can change the meaning of a sentence.

As I taught my students, the Oxford comma comes into play when you have a series of words, phrases, or clauses. Take a look at the previous sentence. I used an Oxford comma. It is the one between “phrases” and “or.” People who like the Oxford comma say that it makes it easier for the reader to understand what the author is trying to say.

Not everyone thinks the comma is necessary. Every now and then, a student, whose curiosity would override their fear of appearing “too interested” in grammar, would ask, “Why do you even need a comma if you can tell what the author is trying to say without it?” It is a good question, and grammar nerds have been arguing about its answer for more than a century.

But the Oxford comma can make a dramatic difference. Consider these two sentences:

Darren is excited about his vacation with his wife, his best friend, and his cousin.

vs.

Darren is excited about his vacation with his wife, his best friend and his cousin.

Here, the Oxford comma makes all the difference. It distinguishes between (1) a nice vacation Darren will have with three other people and (2) an awkward situation where Darren should be advised that he is living a weird, taboo lifestyle and that his marriage to his best friend and cousin is absolutely null under La. C.C. art. 94.  While we can safely assume that Darren was excited about a group trip, this example makes the point.

In O’Connor v. Oakhurst Dairy, 851 F. 3d 69 (1 Cir. 3/13/17), a federal court refused to make a similar assumption, and it might cost more than $10 million, all because a statute did not use an Oxford comma. In O’Connor, dairy truck drivers filed a lawsuit to recover overtime pay. In Maine, overtime pay law does not apply to “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” food.

The defendant (the Oakhurst dairy) argued that the case should be dismissed because the drivers were involved in the “distribution of” food and were not entitled to overtime pay. The district court agreed and dismissed the case.

On appeal, the drivers countered that because there was no Oxford comma after “shipment,” the statute only applied to the act of “packing” food (for shipment or distribution), which they did not do. An Oxford comma would have made the dairy’s argument correct and the case would have been dismissed. However, no comma was used and the federal court of appeals found that the statute was ambiguous. The case was sent back to district court, where the dairy may now get squeezed for someone else’s $10 million comma omission.

Maybe the Maine legislators should have paid a little more attention in class.

One Particular Mosquito: West Nile Virus Found to be a Compensable Workers’ Compensation Claim

A Workers’ Compensation Judge in Monroe, Louisiana found that a claimant met his burden of proving that a specific mosquito bite at work caused him to contract the West Nile Virus, resulting in permanent total disability.

At trial, the claimant asserted that “he specifically remembers being bitten on his left leg by a mosquito” while working in the break room of his employer, Graphic Packaging. Claimant presented evidence that mosquitoes were present at the work site, although his purported eyewitness to the event (who also contracted the disease) was proven to have not been at work that day.

The director of the Ouachita Parish Mosquito Abatement District was offered by the claimant and testified that there was a prevalence of mosquitoes in Ouachita Parish during that summer which carried the West Nile Virus. Mosquitoes trapped near both the employer’s location and the claimant’s house tested positive. According to the director, the only way to determine if a mosquito is infected with West Nile is to have that particular mosquito tested. An expert epidemiologist for the employer added that the most commonly infected mosquitoes would not have been active during the middle of the day when the claimant alleges he was bitten.

Based upon the testimony of the claimant, his witness, and the experts, the Workers’ Compensation Judge ruled that the claimant had sufficiently proven that the specific mosquito infected with the West Nile Virus had bitten him at work. The court also stung the employer and its workers’ compensation insurer with penalties and attorneys’ fees, finding that they had not contested the claim on a reasonable basis.

The Court of Appeal in Allen vs. Graphic Packaging, No. 51,080 (La. App. 2d Cir. 1/11/17), – – So 3d – -, upheld the Workers’ Compensation Judge. The court noted that all proof of the “accident” rested upon circumstantial evidence and that the claimant possessed no direct evidence that the break room mosquito carried the disease. In this setting, the claimant “faced a burden of proof to show circumstantially that the break room mosquito carried the disease.” Utilizing the “manifest error or clearly wrong standard,” the appellate court held that the claimant had met his burden despite his indirect proof.

The Allen court ultimately reversed the finding of permanent total disability, because the Workers’ Compensation Judge misapplied the statutory requirements. It also reversed the award of penalties and attorneys’ fees noting that “there were numerous factors sufficient to validate Graphic’s reasonable controversion of Allen’s claim.”

Grounds for Appeal: Preparing for Round Two

phone retnolds post

Lawsuits begin in the trial court. For that reason, the immediate focus remains in the trial court where the case will be decided by the jury or the trial judge. However, once the judgment is entered or the verdict reached, the focus quickly shifts to the appeals court. In many cases, what happens in the trial court is just “round one” and cases are often truly decided on appeal. This post will help to identify the types of issues considered when there is an appeal.