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A number of bills filed in the Louisiana Legislature's 2020 regular session relate to matter important to CompQuantum subscribers. The bills are attached below. They include:
- HB 805 - Prescription and Peremption
- HB 826 - Limitations on Liability
- HB 856 - Limitations on Liability
- SB 475 - Workers’ Compensation
- SB 477 - Business Interruption Insurance
Perhaps the most impactful, if actually enforceable, is SB 477 purporting to make the COVID-19 shut down a covered event for all business interruption policies in force on March 11, 2020. Generally, business interruption insurance covers only losses incurred as a direct result of damage to covered business premises. Morevoer, insurers added exclusions for toxic contaminants, such as mold, after insureds began arguing the presence of a contaminant was "damage" within the meaning of the policy. With the COVID-19 pandemic, it is entirely unclear, and presumably irrelevant, whether the virus was actually present in many workplaces. So, can the legislature retroactively change the terms of coverage to deem a loss covered?
Posted: April 16, 2020
Yesterday, Philip P. Monteleone, CPA/CFF, CMA CFM and Jennier C. McGinnis CPA, of Bourgeois, Bennett, LLC presented an hour CLE on COVID related employer and employee tax issues and present status of the SBA Economic Injury Disaster Loan and Paycheck Protection Program. Their written materials are published below with permission of Mr. Monteleone.
Posted: April 9, 2020
The March 20, 2020 Newsflash mentioned a scam reported by various clerks of court. With remote work exploding in response to the COVID-19 pandemic, the risk of cyber theft has too.
In an effort to keep you aware and, hopefully, safe, I am starting a second COVID related regularly updated post on security threats. If you hear about any scams I'm missing, please send a report to firstname.lastname@example.org.
CYBER SECURITY ALERT FOR 03/22/2020:
1. As reported in the 3/20/2020 Newsflash, several clerk of court websites contain a variation on the following from the Caddo Parish clerk:
Please be aware that there are several telephone scams floating around these days, either asking for money to keep you out of jail because of a warrant or claiming that you failed to report for a trial. If you are chosen for a jury, you will receive a summons in the mail from Sheriff Prator. The only contact you will have with a Deputy Sheriff is in person, and he or she will be in a uniform driving an official vehicle. A Deputy Sheriff will never ask for money over the telephone.
2. There were several security alerts featured today on the Kim Komando radio show and on her website. They include:
- Trolls are breaking into video chats – change these settings
- 8 tips to avoid coronavirus scams
- Coronavirus phone scams: Scammers are tricking people into ‘reserving’ a vaccine
- Watch out: This fake coronavirus tracking app is a malware trap. NOTE: She recommends the Johns Hopkins University, the Centers for Disease Control, and the World Health Organization sites.
- Coronavirus: A complete list of all the scams out to get you
3. Look here for an announcement on a remote office cybersecurity CLE. If we can manage the logistics, I'd like to schedule one this week.
4. A sudden mass transition to remote work multiplies your risks. Thieves know it. Here is an article discussing the problems you and your IT people face in the days and weeks ahead: What Are The Cybersecurity Issues With Remote Work.
I'm working on a remote office security CLE that hopefully will be presented within the next few days. Check here for updates.
In that regard, my brother-in-law - a Microsoft engineer - offers the following basic observations:
There are kind of three parts:I'll be adding more soon about specifics relating to hardware and operating system architectures.
1) Securing corporate infrastructure
2) Securing clients (PCs and Phones)
3) Securing the connections between the two
This does not change whether working from home or working from the office. The era of the corporate intranet is over. Corporate assets are assumed to be “exposed” to the rest of the world. (I.e. expect attacks on their attack surfaces.) As a consequence, working from home presents no new challenges.
For securing clients, some PCs are more secure than others. Comes down to being able to attest to the legitimacy of the code that is running on the client. (Starting with the firmware and going up through the boot Chain) Present start of the art might be the recently announced secure core PCs. Surface Pro X is an example of one meeting the target specs. Let me know if you want more details on what it takes to be certified at this level.
Once the infrastructure and the clients are both secure, they can establish secure communications between themselves. Services like Microsoft Intune are used for making sure the clients are secure before enabling them to access the infrastructure.
Posted: March 22, 2020
Below is a downloadable pdf collection of civil court orders from state and federal courts throughout Louisiana implementing COVID related emergency procedures.
I will check for new orders as long as emergency conditions remain active. Check back here for updates.
STAY AT HOME ORDER
UPDATE - 03/22/2020
Governor Edwards' March 22, 2020 Stay at Home Order has been added to the attached file.
UPDATES - 03/18/2020:
1. The 19th JDC issued an order on 3/17 closing the court effective 4:30 p.m. on 3/17 until 8:00 a.m. on Monday, April 13, 2020. The order is linked in the updated document.
2. Consistent with item 1 above, the East Baton Rouge Parish Clerk of Court is closed until 4/13/2020, EXCEPT FOR EMERGENCY FILINGS, which will be accepted 8:00 a.m. until noon Monday through Friday - AIRLINE HIGHWAY BRANCH OFFICE ONLY.
3. The USDC - MDLA issued Administrative Order 2020-2 (amending AO 2020-1) as follows: "10. Prescriptive, peremptive and statute of limitation deadlines are hereby suspended until April 13, 2020."
4. The La. 3rd Circuit has now issued orders respecting court access (extending the ban to cover recent visitors to ALL COUNTRIES IN EUROPE); setting all matters scheduled for oral argument on 4/30 and 5/31 to be decided on briefs; and suspending legal deadlines ending 4/13/2020.
5. The La. 4th Circuit issued an order today providing: matters set for oral argument on 4/30 are continued pending further orders, but allowing the parties to submit on briefs; all filings are to be submitted electronically (fee waived); all notices will be delivered electronically; and deadlines are suspended until 4/13.
6. Judicial district orders added from the 2nd JDC, 5th JDC, 32nd JDC and 33rd JDC.
UPDATE (sidebar edition):
1. An actual headline from the Baltimore CBS affiliate website: Baltimore Mayor Begs Residents To Stop Shooting Each Other So Hospital Beds Can Be Used For Coronavirus Patients
2. This notice from the Caddo Parish Clerk of Court will come as a relief to deadbeats: "Paternity court is canceled until further notice."
UPDATES - 03/19/2020:
1. A screenshot of the Jefferson Parish Clerk of Court website including instructions for interactions with their office has been added to the collection. I am adding clerk of court index entries to the bottom of the list. Scroll down to what is currently page 4.
2. The Saint Bernard Parish Clerk of Court is accepting FAX AND MAIL FILING ONLY.
3. I've noticed that several clerk's offices (but not all) have suspended issuance of birth and death certificates. Anyone needing routine services should check online or call first for instructions.
4. Winnfield City Court issued a 3/19/2020 Order affecting operations. It has been added to the index/collection.
5. The Second Circuit Court of Appeal, consistent with Governor Edwards' Proclamation Number JBE 2020-30, suspending deadlines until April 13 with the period treated as a legal holiday.
6. Opelousas City Court Administrative Order dated 3/16/2020 regarding court access has been posted.
7. Pineville City Court has issued an Order suspending deadlines until April 13, 2020.
8. The 10th JDC 3/18/2020 Order closing the court until April 13, 2020 is now posted. The clerk of court will remain open between 8:30 a.m. and 4:30 p.m. Monday through Friday to accept filings only.
9. The 18th JDC 3/18/2020 Order continuing all jury trials schedule on or before March 27 is now posted. NOTE: the 18th JDC courts (Iberville, West Baton Rouge and Pointe Coupee Parishes) are NOT closed and proceedings may be conducted by remote means ("telephone, video, teleconferencing, or any other means that do not involve in-person contact"). The clerks of court remain open to conduct business "by appointment only."
10. Lake Charles City Court will be closed on Friday, March 20, 2020. If conditions require continued closure after 3/20/2020, an announcement will be posted at www.lccitycourt.org.
UPDATES - 03/20/2020:
1. The 32nd JDC will close at 4:30 p.m. on Friday, March 20, 2020 and remain closed until 8:00 a.m. on April 13, 2020.
2. Orleans Parish Civil District Court, 1st City Court, 2nd City Court and the Clerk of Court closed at noon on March 19, 2020 "until the resolution of the matter."
3. The 27th JDC issued an order on March 26 that I just located on the St. Landry Parish Clerk of Court Facebook page. Civil rules through March 30, 2020 are cancelled and "shall be rescheduled." The courthouse remains open (as of 3/16), "but access shall be in accordance with any Orders as issued by St. Landry Parish Government."
4. I am contacting district courts that are not currently on my list for status. So far, I sent emails to the clerks in De Soto, Avoyelles and Evangeline Parishes asking for status information. More requests will be sent through the day and responses will be posted here.
5. The 36th JDC and Beauregard Parish Clerk of Court are not currently operating under any specific order, but courthouse access is limited. You can call the clerk's office at (337) 463-8595 for more information.
6. The 11th JDC and Sabine Parish Clerk of Court are closed through April 24, 2020. You can check the website at sabineparishclerk.com for updates.
7. The Concordia Parish Clerk of Court is open, but access is limited. You can contact the clerk's office at (318) 336-4204.
8. The Louisiana 5th Circuit Court of Appeal issued and order consistent with the Governor's March 16, 2020 Proclamation No. JBE 2020-30 suspending all deadlines until April 13, 2020 and treating the the period until April 13, 2020 as a legal holiday.
9. The U.S. 5th Circuit Court of Appeals issued an Order (#1) under General Docket No. 2020-3 providing as follows: Oral arguments in New Orleans scheduled for March 30, 2020 and April 2, 2020 are cancelled; The John Minor Wisdom Building in New Orleans is closed to the public until further notice; The Clerk's Office remains open for "telephonic, electronic and mail operations"; Call (504) 310-7637 to arrange for delivery of REQUIRED paper filings at the ground floor of the Hebert Building; All paper filing requirements are suspended except as may be directed by the Clerk on a case-by-case basis; The Clerk may "at a future date" direct paper filing of documents previously filed electronically; "ALL CURRENT DEADLINES REMAIN IN EFFECT, EXCEPT FOR THOSE REQUIRING PRODUCTION OF PAPER COPIES" (emphasis added); "Extensions with justification may be requested from the Clerk's Office following normal procedures and rules."; Oral arguments will be scheduled for April 27-30, 2020.
10. The 23rd JDC issued an Order dated 3/20/2020 providing that the 23rd JDC, Ascension Parish Court, Ascension Parish Clerk of Court, Assumption Parish Clerk of Court and St. James Parish Clerk of Court will be open 8:30 a.m. to 1:00 p.m. Monday through Friday beginning March 20, 2020 and continuing through April 3, 2020. The order includes contact information for questions.
11. The 22nd JDC issued its 3rd Amendment to the Court's Order of March 13, 2020. All public access to the St. Tammany Parish Clerk of Court's office is suspended. Beginning March 20, 2020 the clerk's will be open 8;30 a.m. until 12:00 p.m. Monday through Friday to accept emergency filings "and any other filings which, by law, require original documents to be filed." All other filings are to be submitted electronically. The Washington Parish Clerk of Court's office will be accessible through the front entrance between 8:30 a.m. and 4:30 p.m. beginning March 20, 2020. Questions should be directed to the St. Tammany Parish Clerk's Office by telephone at (985) 809-8700 and the Washington Parish Clerk's Office by telephone at (985) 839-4663.
12. The 15th JDC issued its Second Supplemental Emergency Order on 3/19/20. All trials between March 30 and April 9 are continued EXCEPT the interdiction pending before Judge Broussard in Vermilion Parish on March 30, 2020. All courthouses in Acadia, Lafayette and Vermilion Parishes will remain open between 8:30 a.m. and 4:00 p.m. with restricted access. See the 15th JDC order dated 3/19/20 for details on restrictions and other matters. CONTACT email addresses and telephone numbers for Judges and Commissioner Frederick are included in the Order.
13. The Louisiana Supreme Court issued an Order on 3/20/20 providing that all filings due between March 12, 2020 and April 13, 2020 "shall be considered timely if filed no later than Tuesday, April 14, 2020. Parties who are unable to meet this deadline due to the COVID-19 emergency may submit motions for extension of time, supported by appropriate documentation and argument."
14. The Louisiana Supreme Court issued an Order for the state courts on 3/20/2020 continuing all civil trials and criminal jury trials scheduled on or before April 13, 2020, to be reset no earlier than April 14, 2020. Exceptions provided in paragraph 2 include: "civil protective orders, child in need of care proceedings, emergency child custody matters, proceedings for children removed from their home by emergency court order, proceedings related to emergency interdictions and mental health orders, matters of public health related to this crisis and other emergency matters necessary to protect the health, safety and liberty of individuals as determined by each court. "
15. The Winnsboro/Ward 7 City Court issued an order suspending certain operations until 4/20/2020.
UPDATES - 03/21/2020:
1. Today I added screenshots from the clerk of court websites regarding schedules and operational procedures.
2. I also created a list of clerks' offices with links to their websites where available.
UPDATES - 03/22/2020:
1. As highlighted at the top, Governor Edwards today issued a Stay at Home Order. It's not quite as strict as it sounds - more like a strong suggestion. The order is now part of the document collection.
2. I've cleaned up the attached file, cutting the size from 56MB down to 16.5MB. It will load much faster than it did Friday afternoon.
3. Following up on the discussion of scams in the last Newsflash, I am going to start a second COVID blog post covering security issues that are coming up in the brave new world of remote working. I'll have that up this evening with some risks to look out for. For starters, watch out for an email allegedly from the World Health Organization ("WHO") purporting to provide COVID-19 related information. Assume that the WHO is not gong to be sending emails to your personal email account. Also, NEVER, NEVER, NEVER open a file attached to an email with the ".exe" file type unless you know who sent it to you, why they sent it and you already knew they were sending you such a file. That is an executable file, which means it can/will automatically run (i.e. "execute") a program on your computer when you click on it. If it came from an evildoer - if you'll pardon me using a Bushism - the program it runs will install code on your computer to send data (login credentials, account numbers, etc.) to the sender. Assume the sender is not in a country where he/she can be held accountable.
4. The La. First Circuit Court of Appeal issued an Order closing the court until 4/13/2020.
UPDATES - 03/23/2020:
1. The USDC-EDLA today issued new instructions on filing sealed documents. Until May 1, 2020, the clerk "will not accept sealed documents on paper for filing."
2. On Sunday the Lake Charles City Court announced it will remain closed through at least March 27, 2020.
3. Jefferson Parish First Parish Court will close today at 4:30 p.m. and remain closed until April 13, 2020 at 8:30 a.m.
4. The 26th JDC (Bossier and Webster) issued an Order continuing a variety of matters requiring in-court appearances. The Order "does not affect the ability to consider civil or criminal matters that can be resolved without a hearing." NOTE: the court is NOT closed. The clerk and judges' offices will be open between 9:00 a.m. and 1:00 p.m. "for the purpose of receiving emergency filings relating to" matters described in paragraph 6 of the Order.
5. The 27th JDC (St. Landry) issued an Order relating to handling of domestic and support matters.
6. Jefferson Parish Second Parish Court will close "effective March 24, 2020 and remain closed until April 13, 2020."
7. The Louisiana Supreme Court issued further Orders to all state courts implementing Governor Edwards' March 22, 2020 "stay at home" Order by directing limits on court access, physical contact and general operations.
8. The 6th JDC. (East Carroll, Madison and Tensas Parishes) issued an Order limiting court operations to between 9:00 a.m. and 1:00 p.m. from March 23, 2020 through April 12, 2020. The court will hear emergency and time sensitive matters only during this time.
9. The 33rd JDC (Allen Parish) issued an order modifying its schedule consistent with the La. SC 3/20/2020 Order.
10. The 10th JDC (Natchitoches Parish) issued and order providing for judicial office hours from 10:00 a.m. to 1:00 p.m. Monday through Friday during which times a judge will be present for time sensitive criminal, domestic/child protection and civil matters. The clerk's office will be open the same hours. This schedule will remain in effect through April 10, 2020.
11. The 24th JDC (Jefferson Parish) issued Order 2020-004 closing the courthouse to the public until April 13, 2020. The clerk's office will be open from 9:00 a.m. to 2:00 p.m. Monday through Friday for emergency filings by appointment.
12. The 40th JDC (St. John Parish) Ordered that the court and clerk's office will be open 8:30a.m. to 1:00 p.m. Monday through. Friday effective March 24, 2020 until further notice. The court "will continue to hear emergency and/or time sensitive matters in criminal and civil cases as determined by each judicial division."
UPDATES - 03/23/2020:
1. The 4th JDC (morehouse and Ouachita Parishes) today issued COVID-19 Supplemental Order - 2 limiting duty judge consideration to emergency matters only. All other items normally presented to the duty judge are to be filed with the Clerk of Court for routing to the judge randomly assigned for that matter.
2. Yesterday, the Louisiana Second circuit Court of Appeal issued an updated Order regarding procedures for filing documents, paying fees and obtaining records effective 5:00 p.m. March 23, 2020. In particular, no in-person filing will now be accepted.
If you have difficulty viewing or downloading the document, send an email to email@example.com. I'll reply with a copy attached.
Click the link immediately below to download or view this document on a mobile device
COVID-19 Court Orders and Clerk of Court Announcements
Please be patient for this file to open. It is approaching 200 pages.
Posted: March 17, 2020
Injury to the trigeminal nerve
1st Circuit affirms in opinion providing medical context
Settoon v. Morales
2019 CA 0122 (La.App. 1 Cir. 09/27/19)
An Iberville Parish jury trial judgment previously reported at CompQuantum was affirmed on September 27, 2019, with explanatory detail on plaintiff's injuries. See Settoon v. Morales, 74,849 (18th JDC 09/27/18) for the trial post.
Originally reported as an eye injury, the appellate opinion clarifies with description of plaintiff's permanent "trigeminal neuralgia" complaints and consequential major depressive disorder. Injury to the trigeminal nerve can cause sharp episodic pain in the face. Trigeminal neuralgia is not specific to the eye, where Ms. Settoon's complaints were manifest. The condition can be difficult to address. Traditional nerve blocks provide uncertain and temporary relief. Treating physicians testified that Ms. Settoon's condition could not be effectively relieved.
Assignments of error did not include the jury's $340,000 general damage award. Their assessment of $100,000 for future medical expense was affirmed on ophthalmology, pain management and psychology expert testimony.
Posted: Sept. 30, 2019
CDC Jury Defense Judgment
Gressett v. Gibson
2016-01014 (Civil District Court 08/30/19)
A CDC jury verdict assigned fault for a motor vehicle accident to the defendant, but no damages to the plaintiffs.
One plaintiff alleged cervical and lumbar disc injuries treated with ESIs and recommended surgery deferred for health reasons. The other alleged 3-6 months neck and back soft-tissue injury. Plaintiffs filed a JNOV motion on September 19, 2019, alleging juror misconduct, "untruthful" defendant testimony, uncontroverted damages evidence, defense counsel taint of the jury with reference to plaintiff's support for President Trump and unfair denial of plaintiff's ability to respond to attacks on his "personal integrity."
Citing vague and inconsistent testimony, the trial court found that plaintiff failed to establish satisfactory proof of loss exceeding liability coverage prior to tender of UM limits.
Mouledoux v. Blunt
779,389 (24th JDC 09/20/19)
Bench trial general damage award of approximately $3,000 per month for neck and back soft tissue injuries.
The driver of plaintiffs' vehicle, an excluded driver, was denied recovery by operation of the no-play/no-pay statute(La. R.S. § 32:866) and the passenger was awarded general damages of $13,000 - approximately $1,500 per month - for neck and back soft-tissue injuries.
On UM Coverage, See
Handy v. State Farm Mut. Auto. Ins. Co.
52,905 (La.App. 2 Cir. 09/25/19)
in which Judge Cox exercises restraint.
1st Party Property - Hurricane
Dudenhefer v. Louisiana Citizens Prop. Ins. Corp.
2019-0387 (La.App. 4 Cir. 09/25/19)
Plaintiff's judgment awarding covered losses supported by the expert testimony of civil engineer Robert Harris and contractor Roy J. Gross, III was affirmed by the 4th Circuit. So too was the trial court's finding that the defendant's claim handling was arbitrary and capricious.
General damages, penalties and attorney fees under La. R.S. 22:1973 were corrected to comply with the holding of Durio v. Horace Mann Ins. Co., 2011-0084 (La. 10/25/11), 74 So.3d 1159:
[P]enalties are calculated by doubling the amount of damages attributable to the insurer's breach of duties imposed under the statute. (Emphasis added.)
"Damages attributable to," refers to consequential damages. The 200% penalty is assessed only on extra-contractual damages incurred by the insured as a result of the insurer's breach of duty. The trial court calculated penalties by doubling covered losses in excess of the policy deductible.
Louisiana Citizens' relevant policy language, did not exclude coverage. The "insured does not have to prove that the wind created a hole in the structure for the water to enter. [Best v. State Farm Fire & Cas. Co., 2007-0573, p.5 (La. App. 4 Cir. 10/10/07), 969 So.2d 671, 675]. Rather, the insured just needs to demonstrate that the wind created an opening that allowed the water to enter. Id." The trial court's finding of covered loss was not "clearly erroneous" on the record of plaintiff's expert testimony.
CompQuantum Trial Reports on Appeal
The trial court bad faith judgment in Dudenhefer (above) was reported last year at CompQuantum. See Dudenhefer v. Louisiana Citizens Prop. Ins. Corp., 13-0977 (34th JDC 11/19/18).
Med Mal - Explained and Affirmed
Lewis v. Cornerstone Hospital of Bossier City, LLC
53,056 (La.App. 2 Cir. 09/25/19)
Affirming a Bossier Parish jury verdict finding no breach of the standard of care and no damages arising out of a privacy violation, the Second Circuit panel delivers a detailed opinion. See Lewis v. Cornerstone Hospital of Bossier City, L.L.C., 151,867 (26th JDC 08/06/18).
Perhaps out of caution in reaction to its explicit curiosity over the defendant's physicians being unable to recall the referring doctor's orders, the panel reviewed each element of the claim in detail. Included is a discussion of loss of chance of survival as a theory of recovery. Ultimately the court found that the jury was not "plainly wrong."
The court also affirmed a finding that defendant's violation of privacy for having spoken with the referring physician without consent resulted in no recoverable damage to the patient.
Aggravation and Impeachment
Perry v. Starr Indemnity Co.
52,720 (La.App. 2 Cir. 09/25/19)
Affirming trial court judgments consistent with the jury's verdict and denying plaintiff JNOV, the active ingredient in this Second Circuit opinion is a quote from Green v. K-Mart Corp., 2003-2495 (La. 05/25/04), 874 So.2d 838:
The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. (Emphasis added.)
Inconsistent treating physician testimony and an impeached plaintiff supported the jury's verdict awarding general and special damages totaling $1,149,509.27.
The jury's verdict was also notable for a finding of all elements, but awarding no punitive damages, under 2315.4. See Perry v. Starr Indemnity and Liability Co., 148,883 (26th JDC 05/10/18). That decision was not among plaintiff's assigned errors addressed on appeal.
Production Order Vacated, Remanded for In Camera Inspection
Spivey v. Hornbeck Offshore Operators, LLC
2019-CW-0703 (La.App. 1 Cir. 09/25/19)
Vacating the trial court's order requiring response to subpoena by defendant's investigator, the 1st Circuit observes:
Work product protection afforded pursuant to La. Code Civ. P. art. 1 24( A) extends to materials prepared by agents for the attorney as well as those prepared by the attorney himself. See U. S. v. Nobles, 422 U. S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 ( 1975).
See Spivey v. Hornbeck Offshore Operators, LLC, 133,472 (17th JDC 04/26/19), for the trial court hearing transcript filed in response to request for written reasons.
Defense MSJ Reversed
Green v. Brookshire Grocery Co.
53,066 (La.App. 2 Cir. 09/25/19)
Surveillance video lent credence to plaintiff's testimony that she could not see a cone placed to warn customers of a spill. The trial court summary judgment for the defense on cross-motions reversed.
Recreational Use Immunity - Public Liability
Plaintiff Trial Judgment Reversed
Lewis v. City of Bastrop
52,884 (La.App. 2 Cir. 09/25/19)
Plaintiff broke her foot on rebar securing a metal pipe to the ground. Her foot struck the rebar as she walked through a city park to attend her grandson's baseball game. Following a bench trial, the court awarded general damages of $300,000 and specials of $58,180.53. The 2nd Circuit reversed, finding that the city was entitled to protection of the recreational use immunity act (La. R.S. § 9:2795) and that plaintiff failed to satisfy her burden of proof to establish public liability under La. R.S. § 9:2800.
Posted: Sept. 27, 2019
It is widely believed that even if a judge or jury accepts evidence that surgery is necessary and related to the plaintiff's cause, general damages will be less if the procedure is put off until after trial.
Testing the hypothesis is complicated. Vast acceptable ranges of general damage value, personality differences between plaintiffs, specifics of the injury and reasons for delay are just some of the issues creating noise when trying to isolate the single metric of surgery versus a surgery recommendation.
Because the question most commonly comes up in connection with spine surgery, the best available data relates to cervical and lumbar fusions. We gathered two comparison sets, cervical injury as the only primary complaint and lumbar injury as the only primary complaint. These sets were then divided between those for which a fusion was performed before trial and those for which the case was tried with a fusion recommendation still pending. The future surgery cases are those in which the judge or jury included the cost of surgery as part of the special damages. The sets were deliberately kept simple in an effort to reduce effects of extraneous factors. So, for example, we did not consider combined lumbar and cervical injury cases, nor did we consider mixed spine and other primary injuries.
One issue emerges from the data very quickly. With the evolution of ablations (also including rhizotomies and neurotomies) as a treatment option for facet joint pain, recommended fusion surgery seven to ten years out is becoming more common. In that class of cases, the "future surgery" is part of a treatment regimen distinct from what most people mean when they speak of future surgery. In those cases, general damage values remain high.
Outside of the facet injury context, a quick review of the data suggests a definite tolerance for lowered recovery, but other factors often lead to substantial damage awards where fusion surgery remains in the future as well as modest awards in cases where the surgery was already completed.
We will dive deeper into the number in a future post. For now, here is a list of cases over the last 3 years that satisfy the criteria described above. The cases are in date order with trial and appellate results mixed.
Langlinais v. LeBlanc, 18-712 (La.App. 3 Cir. 04/17/19)
$195,000 - Aggravation of pre-existing cervical injury with post-accident development of myelomalacia - accident related three level fusion at C4-5, C5-6 and C6-7 - future surgery to address residual complaints - prior fusion at C5-6
Wright v. National Interstate Ins. Co., 18-30683 (U.S. 5th Circuit 03/28/19)
$17,000 - Cervical injury treated with injections and ACDF at C4-5 and C5-6 Jury initially declined to award general damages. Judge Fallon instructed jury that award of medical expenses without general damages was inconsistent. Jury returned with award of $17,000. US 5th Circuit affirmed.
Simpson v. UV Insurance Risk Retention Group, Inc., 628-15 (31st JDC 02/14/19)
$490,000 - Neck injury treated with two level fusion - four years treatment prior to trial - significant prior history of neck pain and treatment for two prior MVA injuries - admitted abuse of narcotic pain medication and marijuana
Schultz v. Cincinnati Indemn. Co., 2015-11743 (Civil District Court 05/08/18)
$350,000 - Cervical injury successfully treated with single level fusion
Giavotella v. The Travelers Indemnity Co., 1042796 (18th JDC 03/28/18)
$215,000 - C5-6 herniated disc treated with ESIs, trigger point injections and acupuncture prior to artificial disc replacement surgery - plaintiff was involved in a less severe accident seven months later - treating physician testified there was no difference in herniation - defense argued intervening cause
Wilson v. Barnes, 631,391 (19th JDC 10/04/16)
$258,000 - SETTLEMENT $158,000 settlement after jury selection added to prior UM tender of $106,000 for general damages plus uncompensated wage loss of $5,839.50 - Cervical injury requiring 2 level fusion
Langlinais v. LeBlanc, 18-712 (La.App. 3 Cir. 06/12/19)
$450,000 (MAX) - L5-S1 herniation requiring fusion surgery - surgery was a success - no post-surgery physical therapy required - JNOV was appropriate as to jury general damage award of $5,000, but trial court award of $725,000 was excessive
Taylor v. City of Alexandria, 19-25 (La.App. 3 Cir. 06/05/19)
$285,000 - Lumbar disc injury with hemilaminectomy and discectomy surgery at L3-4 and L4-5
McCloskey v. Higman Barge Lines, Inc., 2018-1008 (La.App. 4 Cir. 04/11/19)
$500,000 - Lumbar disc in jury requring L5-S1 injections, discogram and fusion - emergency revision surgery to address complications - positive result for pain reduction after second surgery, but permanent restrictions placed on activities - "no repetitive bending or lifting over 15 pounds”
Keys v. The State of Louisiana, 635,511 (19th JDC 02/05/19)
$300,000 - L5-S1 disc herniation significantly aggravating prior injury and triggering need for fusion surgery - prior microdiscectomy at the L5-S1 level in 2008 - accident related treatment included ESIs and medial branch block
Jack v. Eldorado Shreveport Joint Venture, L.L.C., 52,454 (La.App. 2 Cir. 01/16/19)
$246,000 - Lumbar injury with "bulge" at L5-S1 and annular tear at L4-5 - "2-level 360-degree lumbar fusion" - residual pain and possible future surgery - continuing treatment with SI injections
Howard v. Norton, 622,507 (19th JDC 12/18/18)
$90,000 - Lumbar injury - two level TLIF at L4-5 and L5-S1
Baldassaro v. Travelers Prop. Cas. Co. of America, 727,793 (24th JDC 07/18/18)
$500,000 - Lumbar injury - three level fusion followed by revision surgery - permanent disability
Corbin v. USAA Cas. Ins. Co., 640,367 (19th JDC 01/12/18)
$155,000 - Lumbar aggravation of degenerative disc disease with recommendation for fusion surgery
Thibodeaux v. State Farm Mut. Auto. Ins. Co., 2015-0109 (14th JDC 01/04/18)
$75,000 - Lumbar injury causing pain at L5-S1 with facet arthropathy, annular tear and spinal canal and neuroforaminal stenosis - fusion surgery performed approximately 8 months post-injury - plaintiff died from unrelated causes 27 months after the MVA
Despaux v. RSC Equipment Rental, Inc., 58-141 (25th JDC 11/04/16)
$850,000 - L4-5 and L5-S1 herniations treated with trigger point injections and 2 level lumbar fusion - Secondary injuries included ulnar nerve entrapment at wrist surgically released and tinnitus from blow to head
Fuller v. D.L. Peterson Trust Co., 50,699 (La.App. 2 Cir. 06/22/16), 197 So.3d 244
$155,000 - Lumbar injury causing aggravation of pre-existing degenerative disc disease as well as congenital narrowed spinal cord opening causing stenosis - three level lumbar fusion with instrumentation following which surgeon described plaintiff as "doing remarkably well.” The Second Circuit reversed a trial court grant of plaintiff JNOV motion and increase of general damages to $1,200,000. The jury's general damage award was reinstated.
Burch v. SMG, 2014-1356 (La.App. 4 Cir. 04/07/16), 191 So.3d 652
$400,000 - Large L5-S1 herniation with S1 nerve impingement - hemilaminectomy and medial facetectomy surgery
Schexnayder v. Bridges, 2015-0786 (La.App. 1 Cir. 02/26/16), 190 So.3d 764
$600,000 - L5-S1 injury requiring fusion surgery and probable future surgery
Nolen v. Louisiana Farm Bureau Cas. Ins. Co., 18-711 (La.App. 3 Cir. 04/25/19), Unpublished
$100,000 - Cervical injury with recommendation of 2 future surgeries
Warren v. Laurent, 646,801 (19th JDC 08/14/18)
$60,000 - Cervical injury with herniation and recommendation for three level cervical fusion - plaintiff suffered from pre-existing cervical degenerative disc disease as well as upper extremity CRPS/RSD - dispute as to whether herniation and need for surgery was caused by accident or was pre-existing - treatment prior to trial included ESIs
Walsh v. Caskey, 126,453 c/w 126,518 (16th JDC 05/21/18)
$675,000 - Cervical injury with herniation and recommendation for three level cervical fusion - plaintiff suffered from pre-existing cervical degenerative disc disease as well as upper extremity CRPS/RSD - dispute as to whether herniation and need for surgery was caused by accident or was pre-existing - treatment prior to trial included ESIs
Henning v. Held, 2016-13770 (22nd JDC 04/24/18)
$75,000 - Cervical injury treated conservatively for over 1 year prior to surgical recommendation - court accepted need for future surgery
Hiller v. Harrington, 595,458 (1st JDC 04/16/18)
$90,000 - Cervical disc and facet joint injuries treated conservatively prior to trial - future facet injections and ablations with projection of fusion surgery in 5 years - jury awarded 75% of low-end cost for all projected procedures
Brown v. Breaux Bridge Ventures, LLC, 17-440 (La.App. 3 Cir. 02/15/18), 239 So.3d 319
$50,000 - Cervical injury - future ACDF - pain and suffering limited to 8 months as consequence of failure to mitigate by having surgery when recommended - Third Circuit reversed trial court JNOV based on insufficient evidence regarding pain associated with surgery or post-surgical pain as well as "inconsistent testimony and evidence regarding the severity, extent, and location ... of pain”
John v. Simon, 2012-4796 (15th JDC 12/20/17)
$100,000 - Cervical disc injury - recommended C5-6 ACDF
Ferguson v. Gardenia, 751-952 (24th JDC 01/24/17)
$90,000 - Large herniation at C5-6 and small herniation at C4-5 - treatment with branch blocks - recommendation for disc replacement surgery
May v. Regional Transit Authority, 2016-08271 (Civil District Court 01/31/19)
$560,000 - (Questionable relevance) Lumbar injury treated with ESIs and "several bilateral" rhizotomy procedures to address L3-S1 facet joint injury - 5-7 years of future rhizotomies - Treating physician testified that plaintiff is candidate for fusion, but plaintiff testified that she would not have surgery - defense examiner disputed causation on disc findings, but not facet joint injury
Huntley v. 21ST Century Premier Ins. Co., 16-514 (La.App. 3 Cir. 11/02/16), 204 So.3d 1085
$300,000 - Aggravation and worsening of pre-existing lumbar condition at the L3-4 level causing need for future laminectomy, discectomy and fusion surgery - new right side disc pathology in addition to pre-existing left side problem - dispute as to whether future surgery required laminectomy and fusion instead of only a disectomy
Raymond v. Depositors Ins. Co., 745-747 (24th JDC 10/11/16)
$772,916 - L4-5 and L5-S1 microdiscectomy and rhizotomy - subsequent imaging of L4-5 facet arthrosis and epidural fibrosis - two future fusion surgeries
Richard v. Gisler, 621,506 (19th JDC 03/28/16)
$100,000 - Lumbar disc injury treated with microdiscectomy - future spinal cord stimulator implant and possible future fusion
Posted: Aug. 23, 2019
Judges Barbier, Morgan and Vance issued stay orders on August 15, 2019. According to footnote 2 in Judge Barbier's order, Judges Africk and Lemelle will soon be doing the same. The court learned of "an ongoing criminal investigation by the U.S. Attorney’s Office that may involve this proceeding and/or witnesses or counsel to the proceeding."
UPDATE: Correction - Judge Morgan's order was issued on June 3, 2019 and Judge Vance's order was issued on May 29, 2019.
Posted: Aug. 15, 2019
Site re-design efforts are the top priority this summer. A beta version is near completion and those who agreed to test the new site will soon have an opportunity.
With so many additional tasks, the LAw Blog has suffered. Rather than make apologies for that, I'll offer a vision for its future. The Newsflash email service has been very successful. It has somewhat taken the place of a traditional blog. So, going forward, the LAw Blog will be a place for presenting longer form analysis.
Analysis is tricky. Anything I say is subject to criticism or may cause offense. A few years ago, the offense part would have been less of a concern, but it seems the risks are not what they once were. Nevertheless, I will assume that readers are professionals who can weather a little disagreement. To mitigate any one-sidedness, I am encouraging readers to submit comments and even contributions for publication. More about that later.
Also, when the new site goes live, it will contain a page with links to on-demand live CLE and podcasts. Podcasts will be free and contain much of the same content as paid CLE webinars which will be reasonably priced - probably $45 per hour of CLE.
Posted: July 22, 2019
Worker’s compensation medical expense reductions conclusively join attorney discounts and reductions under Medicaid and certain finance arrangements outside the scope of collateral source recovery. Simmons v. Cornerstone Investments, LLC, 2018-0735 (La. 5/8/19). The amount actually paid under WC remains a collateral source. Howard v. National Union Fire Ins. Co., 2017-1221 (La.App. 1 Cir. 02/16/18), 243 So.3d 4.
The result is not a surprise, but the procedural means by which it was delivered causes some consternation. In Simmons, the Louisiana Supreme Court affirmed the 9th JDC judgment granting a defense motion in limine excluding billed medical expenses from evidence presented to the jury. A question raised by concurring Justice Hughes is whether the Court answered the wrong question. He agrees that the reduction amount is not recoverable, but would not use an evidentiary motion to achieve the result.
Proof of future medical expenses becomes more difficult if the jury considers only reduced past medical expenses. Craft v. Ports America Gulfport, Inc., 2018-0814 (La.App. 4 Cir. 05/08/19), discussed in the 5/8/19 CQ Newsflash, is a recent example of why that may be true. In Craft, the Fourth Circuit reversed a trial court JNOV and reinstated a $1,000,000 future medical expense jury award. Explaining why, the Craft panel quoted Gaunt v. Progressive Security Insurance Company, 2011-1094, p. 34 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1272:
Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. If a fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper. (Emphasis added.)
So, if past medicals presented to a jury at trial were reduced, but future medicals will not be covered by WC, then the plaintiff’s burden is marginally increased. Simmons prohibits jury consideration of the full billed amount. Justice Hughes’ concurrence addresses this point:
I agree that the plaintiff may only recover the amount authorized by law for his past medical expenses, not the amount billed by the medical providers. However, this does not make the plaintiff "whole." This is not a workers' compensation case. The plaintiff is entitled to seek damages against the tortfeasor for, not only past medical expenses, but also for future medical expenses, pain and suffering, mental anguish, and other general damages allowed by law. To do so, the plaintiff is entitled to present to the jury evidence of the duration of his medical treatment, including each doctor visit, drugs prescribed, physical therapy ordered, or any other medical treatment endured. This evidence may best be presented through an itemized statement from the medical provider, with the dollar amounts for the charges and/or payments redacted. Thus the plaintiff may pursue his claim "to be made whole" without prejudice.
Posted: May 13, 2019
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