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Insight
Keeping Testimony of Future Medical Expenses “Out of the Gate”
Ina recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in MichaelBrander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982(Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projectedmedical expenses because it was not based on a reliable methodology. Thisruling stands to impact many other cases where plaintiffs seek to usefar-reaching projections of a life-long need for radiofrequency ablations("RFAs") or other pain-management modalities to "board" sixand even seven-figure numbers for future medical expenses.
InDaubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), theUnited States Supreme Court recognized the trial judge as the “gatekeeper” of expertopinion testimony and held that only reliable and relevant expert opinions maybe admitted. The reliability requirement serves to keep expert opinions“outside the gate” when they constitute unsupported speculation or meresubjective belief; only scientifically valid expert opinions are allowedinside. To ascertain whether an expert opinion is scientifically valid, Daubertinstructs the trial court to consider:
∙ whether theexpert’s theory can or has been tested;
∙ whether it hasbeen subject to peer review and publication;
∙ the known orpotential rate of error when applying the theory;
∙ applicablestandards and controls; and,
∙ the degree towhich the theory has been generally accepted in the scientific community.
InBrander, the plaintiff advanced medical testimony that he would needRFAs every year of his expected lifetime, a period of 36 years. The courtdisallowed the testimony, noting that the plaintiff’s physicians had less thanten years personal experience in administering RFAs to patients, the medicalliterature only considered the effectiveness of RFAs over a span of seven toten years, and there was no showing that the 36-year treatment plan was ingeneral acceptance by the medical community. According to the court, theexpert opinions offered by plaintiff failed Daubert “on all points.” Asa result, the plaintiff was permitted to introduce testimony of future RFAs foronly 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.
Louisiana
State Courts
Trial Court
Insurance
Medical
Insight
Real Estate Liability: Recovery Denied in “As Is” Sale Despite Quick Discovery of Mold
In the recent case of Riedel v. Fenasci,2018-0540 (La. App. 1 Cir. 12/28/18), _______ So. 3d _______, 2018 WL 6818716,home buyers sued the sellers and the involved real estate agents after mold wasdiscovered shortly following the sale. This is a common fact pattern in humidSouth Louisiana. The buyers lost in the trial court when there was no evidencethat the sellers or the agents knew of the problem. The result was affirmed bythe First Circuit Court of Appeal.
The Riedels identified mold weeks afterthe closing and filed a claim with their homeowner’s insurer. But the claim wasdenied when the insurer’s inspection revealed long- term damage, rot, anddeterioration in a ceiling due to water damage. That finding prompted thesuit.
Against the sellers, the Riedels contendedthat they “had to have known” about the moisture and mold in the home prior tothe sale. Because the home was sold “as is,” they had to establish fraudto recover. However, the sellers had not lived in the home for years and hadreceived no complaints from tenants over this time. Under such facts, the claimof fraud was not supported.
The Riedels also sued both agents for negligent misrepresentation, and their own agent for breach of fiduciary duty. In assessing the claim against the agents, the Riedel Court agreed that real estate agents are liable for negligent misrepresentation when they fail to disclose hidden defects in the property which were known or should have been known to them. The Court also agreed that a purchaser’s real estate agent owes a fiduciary duty, the highest duty of care recognized by law. Nevertheless, when the plaintiffs’ own inspector found no visible evidence of mold prior to the sale and there was no indication that the agents possessed prior knowledge of the mold, the claim against the agents was also dismissed.
Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.
Uncategorized
Fraud
Liability
Louisiana
Real Estate
Insight
Louisiana Supreme Court issued a significant ruling in a class action case involving tax credits for solar panels
Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert. The case involved tax credits for solar panels. The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional. After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.
In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session. Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.
When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional. During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits. Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments. The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.
Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court. Oral arguments occurred in October of 2018. In the Court’s recent opinion, it concluded that Act 413 mooted the controversy. According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits. Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional. Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.
Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.
Class Actions
Energy
Louisiana Supreme Court
Uncategorized
Insight
The Louisiana Supreme Court rules that amount billed by healthcare providers beyond what has been paid by a Workers Compensation insurer is NOT a collateral source that is recoverable against tort defendants
In a very important ruling by the Louisiana Supreme Court, a tort defendant is no longer liable for any “actual charges” by medical providers above the amount paid by a Workers Compensation insurer pursuant to promulgated Workers Compensation fee schedule . In Simmons v. Cornerstone Investments, LLC, 2018-cc-0735 (La. 5/18/19), the court concluded:
“…the amount of medical expenses charged above the amount actually incurred is not a collateral source and its exclusion from the purview of the jury was proper.” See http://www.lasc.org/opinions/2019/18-0735.CC.OPN.pdf
The court conducted a detailed analysis of the development of the collateral source rule under applicable jurisprudence noting that the genesis of the collateral source rule:
“Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer.” See Louisiana Dept. of Transp. & Dev. v. Kansas City Southern Railway Co., 02-2349, p. 6 (La. 5/20/03), 846 So.2d 734, 739.
Essentially, the court asks two questions when assessing whether the collateral source rule should apply. First, does the claimed benefit arise from some payment, wage deduction or other contribution by the Plaintiff that would diminish the plaintiff’s patrimony? Second, will the goal of tort deterrence be promoted by allowing the windfall? In a series of cases culminating in the case at bar, the court has been limiting the application of the collateral source rule in a number of contexts.
The court in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, found that the collateral source rule did not apply when Medicaid was the payor such that the defendant could not be responsible for any amounts above what Medicaid paid to the provider. The court reasoned that it would be “unconscionable” to require taxpayers to pay the bills and then let a plaintiff recover the full undiscounted medical expenses and “pocket the windfall.” The court continued by noting in “Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, this court found the collateral source rule did not apply to prevent the plaintiff’s uninsured motorist carrier from receiving a credit for workers’ compensation benefits paid by her employer, even though the plaintiff paid for the UM coverage herself.” In Hoffman v. 21st Century North American Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, the court held that the collateral source rule does not apply to attorney-negotiated medical discounts. The court also looked at the US 5th Circuit in Deperrodil v. Bozovic Marine, Inc., 842 F.3d 353 (5th Cir. 2016), that the collateral source rule does not apply above any amounts actually paid by the employer in the context of the LHWCA.
In each of the instances outlined, the court noted that the patrimony of the plaintiff was not impacted by limiting recovery to the amount of medical bills actually paid. Moreover, the court noted that the goal of tort deterrence is not negatively impacted, and that allowing a plaintiff to recover a windfall in this context is tantamount to an award of punitive damages that are not recoverable absent statutory authority which is not present in this context. The Simmons decision now extends that same logic to cases where a Workers Compensation insurer has paid the medical benefits pursuant to the Louisiana Workers Compensation Law.
This ruling will have significant impact on the evaluation, settlement and trial of tort cases that have corresponding Workers Compensation claims.
Submitted by John P. Wolff, III (Partner)
Insurance
Louisiana
Louisiana Supreme Court
Torts
Workers' Compensation
Insight
Nursing Home Liability: Big Brother is Watching Granny?
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.
Louisiana
Insight
Kids and Pets Left in Vehicles: Louisiana Legislature Makes Rescuers Immune, Maybe
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.
Class Actions
Negligence
News
Keogh Cox Attorney, Patrice Haley Introduced as a New Member of the Bar
Keogh Cox Attorney, Patrice Haley was introduced as a new member of the Bar on Wednesday, January 30, 2019 during the Baton Rouge Bar Association Opening of Court, Memorial & New Member Ceremony.
[caption id="attachment_2968" align="alignnone" width="300"]
Keogh Cox JOP_7662.CR2
2018 © Jenn Ocken Photography
www.JennOckenPhotography.com[/caption]
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Insight
Louisiana Court is Clear: Res Ipsa Loquitur of Little Use in Pool Defect Case
When Casey Krueger and his family went to the pool at the La Quinta Inn & Suites in Baton Rouge, they knew how they wanted to end their day. What the Kruegers (and La Quinta) did not know was that a piece of clear, broken glass was on the bottom of the pool. Mr. Krueger stepped on the glass and experienced a “large and deep cut” that caused permanent loss of some function of his toe. He filed suit alleging that La Quinta was negligent for the defective condition in its pool. Krueger v. La. Quinta Inn & Suites, 18-0052 (La. App. 1 Cir. 9/21/18). He also alleged the negligence of La Quinta was self- evident such that the doctrine of res ispa loquitur should apply to impose liability. His claims were rejected by the jury; the Louisiana First Circuit upheld the verdict.
“Res ipsa loquitur” is a Latin phrase that means “the thing speaks for itself.” The doctrine of res ipsa is used where a plaintiff relies solely upon circumstantial evidence to prove negligence. For res ipsa to apply, the plaintiff must: 1) prove that the injury is the kind which ordinarily does not occur in the absence of negligence; 2) eliminate other more probable causes of the injury (such as the conduct of the plaintiff or of third-persons); and 3) show that the negligence of the defendant fell within the scope of the duty owed to the plaintiff. Res ipsa is often cited where the defendant possessed exclusive control of the thing which caused the injury. Id.
In the Krueger case, La Quinta checked the pool twice a day and posted signs that banned glass from the pool area. There was also no evidence that it knew or should have known of the glass in the pool. After all, clear glass in a clear pool is hard to detect. Lacking direct evidence of negligence, the Kruegers hoped the res ipsa doctrine would make their case. With some justification, they contended that broken glass was not to be expected in a hotel pool. However, res ipsa was found not to apply. Because it was “possible that a third party caused broken glass to enter the pool,” the plaintiffs could not establish all three elements to the doctrine.
Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a league tennis player, a cook, and a hobbyist writer.
Negligence
News
Mary Anne Wolf to Speak at Annual Engineering Conference
Mary Anne Wolf will speak at the annual Louisiana Joint Engineering Societies Conference, held in Lafayette on January 23 and 24, 2019. Check out the full schedule at www.les-state.org.
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Insight
Treating Physician Testimony – Pitfalls for Plaintiffs & Opportunities for Defendants
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.
Federal Courts
Litigation
News
Attorneys Attend Boys & Girls Club Steak & Stake Dinner
On October 18, 2018 Keogh Cox attorneys joined the Boys & Girls Club of Greater Baton Rouge for their annual Steak & Stake Dinner. Steak & Stake provides community supporters with the unique experience of dining with Club members and learning about the Club from their perspective. Keogh Cox is proud to be a long-time supporter of the Boys & Girls Club.
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Insight
Creating Obstacles to Frivolous Claims
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.
Litigation