Category: Trial court

Black Boxes: The Secrets Your Vehicle Keeps

By Brian Butler

Many do not realize modern vehicles are always ready to record critical driving information. As with airplanes, most passenger vehicles are now equipped with Event Data Recorders (EDR), or “Black Boxes.” This information may be critical after an accident to show what happened, and who was at fault.

EDRs may record pre-event data for five seconds before and one second after an accident, possibly including vehicle speed, engine speed, percent throttle, change in velocity, and whether the brakes were applied. The make and model of the vehicle will determine what data is available. If you want this data, you must act quickly because it will be “overwritten” at some point if the vehicle continues in use.

It is also important to retain a competent expert to download the data. In Laborde v. Shelter Mutual Insurance Co., 82 So. 3rd 1237 (La. 3/9/2011), the trial court excluded the printout of data downloaded from a Black Box because of the boxes “chain of custody” and the method the information downloaded.  It is important that your legal team knows how to obtain and preserve this evidence.

Data from Black Boxes can be useful in many ways. In some cases, it may help to prove that the accident involved a low impact or to show that no brakes were applied. In other cases, it may harm your position, but the data is almost always relevant. There are costs in downloading and interpreting the data. But in the right case, the secrets kept in the Black Box may be the only way to reveal the truth.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work. 

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.  

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.

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.