Category: State Courts

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

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.  

Keogh Cox Partner Secures Defense Verdict in Fatal Shooting Case

Andrew Blanchfield, Managing Partner at Keogh Cox,  represented the Louisiana Office of State Police and a State Trooper in a recent wrongful death jury trial in the 19th Judicial District Court in Baton Rouge. In the case, Andrew Arway was fatally shot during a traffic stop in Avoyelles Parish on May 24, 2004 by a Louisiana State Trooper.

The Trooper’s dash cam video established that the traffic stop was initiated at 4:30 a.m. However, Arway did not initially stop his vehicle and instead drove forward slowly for several hundred feet. Once Arway’s vehicle came to a stop, he exited, placed his hands in his pockets, and began to move to the front of his truck, ignoring the Trooper’s commands. Arway then made the motion of searching for a weapon. At one point, he formed his hands as if he held a gun and yelled “freeze.” In response, the Trooper loudly commanded Arway to place his hands where they could be seen. Arway again ignored the Trooper’s commands and moved towards a ditch, outside of camera view.

The Trooper testified that Arway continued to make gestures as if he was looking for a weapon around his ankle. According to the Trooper, he fired two shots when he lost sight of Arway’s hands. No weapon was found on Arway and his blood alcohol level was twice the legal limit.

Arway’s wife and children brought a wrongful death action alleging excessive force.  At trial, Blanchfield argued that the Trooper’s force was reasonable and that the Trooper justifiably feared for his life in view of Arway’s bizarre and threatening behavior. Evidence was also presented that Arway’s behavior was consistent with a “suicide by cop” theory.

The Baton Rouge jury deliberated for 90 minutes and concluded that the Trooper’s use of force was reasonable under the circumstances.

 

Andrew “Drew” Blanchfield is a litigator with over 30 years of courtroom experience. Litigating dozens of complex jury trials in state and federal courts, Drew has offered representation to various sectors to include industrial accidents, business litigation, oil and gas, healthcare, and professional liability defense.  When he is not advising his corporate clients or in a court room (or on the tennis court), Drew spends time with his wife and four children.

Jury Duty Part 2: Am I exempt from being a juror?

“There were eleven votes for ‘guilty.’ It’s not easy for me to raise my hand and send a boy off to die without talking about it first.” – Reginald Rose, Twelve Angry Men

Jury service is a civil duty. Our system would collapse without the diligent individuals who respond and serve, but the law does provide exemptions and exceptions which may be utilized to be excused. Part 2 of this blog will explore those circumstances.

General Exemptions

Louisiana provides two general exemptions from jury service.

1 – Age. Persons seventy years of age or older shall be exempt from jury service and may decline to serve as jurors. La. Const. Ann. art. V, § 33. However, they are free to serve if otherwise qualified.

2 – Prior Service. The second, all “persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases or in a central jury pool during a period of two years immediately preceding their selection for jury service.” La. Sup. Ct. R. 25.

No exemption is automatic. A prospective juror qualifying for one of the above exemptions must assert the exemption by contacting the appropriate jury commission.

Recognized Excuses

In criminal cases, a juror may be excused when such service “would result in undue hardship or extreme inconvenience.” C.Cr.P. art. 783

In civil cases, a juror may be excused when service would result in “undue or extreme physical or financial hardship.” However, these circumstances are limited to circumstances in which an individual would:

1. Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute care giver during the period of participation in the jury pool or on the jury; or

2. Incur costs that would have a substantial adverse impact on the payment of the individual’s necessary daily living expenses or on those for whom he or she provides the principal means of support; or

3. Suffer physical hardship due to an existing illness or disease. La. Rev. Stat. Ann. § 13:3042

With respect to both criminal and civil service, a request for excusal can be mailed to the issuing court and should include an explanation of circumstances. In most cases, the letter must also include supporting documentation, such as, “state income tax returns, medical statements from licensed physicians, proof of dependency or guardianship, and similar documents, which the judge finds to clearly support the request to be excused.” “Failure to provide documentation shall result in a denial of the request for a waiver.” La. Rev. Stat. Ann. § 13:3042

You should serve if you can but, if you need to be excused, questions regarding exemptions, excusals, and/or qualifications should be directed to the appropriate jury commissioner’s office.

Jury Duty Part 1: Am I qualified to be a juror?

“Jury: A group of 12 people, who, having lied to the judge about their health, hearing, and business engagements, have failed to fool him.” – Henry Louis Mencken

Congratulations, you have been selected for jury duty. As American as baseball, jury duty is a pillar of the American system of justice, and you can step right up and participate-if you are qualified. In this two-part series, we outline the qualifications and exemptions for potential jurors in Louisiana.

In Louisiana, “all qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.” La. Sup. Ct. R. 25

To serve as a juror for a civil or criminal case, you must meet the following criteria:

  1. Be both a citizen of the United States and Louisiana who has resided within the parish in which he or she is to serve for at least one year immediately preceding his jury service.
  2. Be at least eighteen years of age.
  3. Be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language.
  4. Not be under interdiction or incapable of serving as a juror because of a mental or physical infirmity, provided that no person shall be deemed incompetent solely because of the loss of hearing in any degree.
  5. Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor. C.Cr.P. art. 401, La. Rev. Stat. Ann. § 13:3041.

If you receive a jury duty notice and do not meet one of the above requirements, you are encouraged to contact the jury commissioner’s office. Who knows, you may be free in time for the first pitch.

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

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.

“IME” Killer Bill Put Down

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.

New Orleans Ladies On Parade for Equal Pay

When President John F. Kennedy signed the Equal Pay Act, he called it a “first step” and one which “affirms our determination that when women enter the labor force they will find equality in their pay envelopes.”  Despite the many federal statutes passed since the Equal Pay Act, “equal pay” remains a hot-button issue and the subject of protests aimed at correcting an actual and/or perceived disparity. Locally, the New Orleans Police Department estimates that between 10,000 and 15,000 protesters took part in the Women’s March in New Orleans on Saturday, January 21, 2017.

New Orleans Mayor Mitch Landrieu issued an executive order during the week following the protests wherein he requested that a pay disparity survey be conducted by the Civil Service Commission.  He further announced a ban of questions about salary history during the hiring process for New Orleans city employees, noting, “It is unacceptable that, on average, women make just 79% of what men make. We need equal pay for equal work.”

Mayor Landrieu’s order is limited to city jobs and follows a year when some state officials, including Gov. John Bel Edwards, were dealt a defeat in the Legislature on a separate equal pay measure.  The state “equal pay” measure ultimately passed the Senate, but was defeated in a House committee.

The right of employees to be free from discrimination in their compensation is protected under many federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.  Specifically, the Equal Pay Act requires that men and women be given equal pay for equal work.  Pay differentials are permitted only when they are based on seniority, merit, quantity or quality of production, or a factor other than sex.  Of course, these bases provide affirmative defenses that can be raised by the employer in the event of a lawsuit.

Whether the recent protests will become a catalyst for further “equal pay” legislation is not known; what is known is that the issue has been around since before John F. Kennedy and does not appear to be going away anytime soon.

Discovery in a Digital World

The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”

after files