In Manderson v. Chet Morrison Contractors, Inc. (“CMC”), which was decided by the United States Fifth Circuit Court of Appeals in January 2012, Manderson, who worked for the defendant as an engineer aboard a dive vessel, left the vessel abruptly and was hospitalized for ulcerative colitis, diabetes and a liver condition. He never returned to work.

Following his illness, Manderson received extensive medical treatment and submitted his bills to his health insurer. However, he ultimately filed a lawsuit against his employer under the Jones Act and the General Maritime Law. His lawsuit sought, among other things, the full amount of the medical bills that he had incurred, which totaled approximately $170,000.00. His health insurer, based upon either audits or fee agreements in place with medical providers, had paid about $70,000.00 in medical expenses, which had been accepted by the medical providers as full payment.

This case was tried to a judge in the United States District Court for the Western District of Louisiana and the judge awarded the full amount of the medical expenses in damages, along with attorney’s fees of $110,950.00 for the alleged arbitrary and capricious failure to pay maintenance and cure.

In awarding the full amount of cure expenses, the district court applied the collateral-source rule, which bars a tortfeasor from reducing the amount of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of or collateral to the tortfeasor. Most states, including Louisiana, apply the collateral-source rule.

On appeal, holding that this appeared to be an issue of first impression, the Fifth Circuit reversed and held that the seaman was only to recover the discounted amount paid by his health insurer and not the full amount of his medical bills. In doing so, the court recognized that a seaman’s entitlement to maintenance and cure was an implied term of his employment contract and was not predicated on any fault or negligence of the employer. As such, the Fifth Circuit concluded that the collateral-source rule should not be strictly applied and reduced the cure award by about $100,000.00.

In reversing the award for attorney’s fees for the alleged arbitrary and capricious failure to pay maintenance and cure benefits, the Fifth Circuit recognized that the district court had awarded attorney’s fees without any underlying findings. At trial, CMC presented evidence that Manderson had experienced similar flare-ups of his colitis before working for CMC; that he had applied for short term and long term disability and claimed that his colitis was not work related, before filing a suit for maintenance and cure; that Manderson had failed to reveal some of his pre-existing history; and that he never filed any injury report in connection with the incident. Furthermore, once a formal demand for maintenance and cure was made, CMC promptly referred the matter to its underwriters to investigate the claims and the underwriter did so. Under the circumstances, the Fifth Circuit reversed the award for attorney’s fees, finding that the evidentiary basis for such an award had not been met.

This decision should further support the employer’s right to have cure expenses audited and paid at a reduced rate. Furthermore, if the seaman wants to use a physician who will not agree to a reduced rate when other competent medical providers are available who will accept the reduced rate, we believe the employer has an extremely strong argument that it only owes those reasonable and related charges at the reduced rate.

Georges M. Legrand

Author: Tyler A. Moore

Plaintiff brought a legal malpractice action against defendant for failure to act as a reasonable, prudent attorney and alleged that his negligent act resulted in a garnishment against Plaintiff. The Louisiana Supreme Court granted certiorari to determine whether the continuous representation rule, an application of the doctrine of contra non valentem, can apply to suspend the commencement of the one-year preemptive period under La. R.S. 9:5605.

The doctrine of contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. It encompasses the “continuous representation rule,” affording an attorney an opportunity to remedy an error while, at the same time, preventing the attorney from defeating the client’s claim through pleading statute of limitations. Under La. R.S. 9:5605(A), an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of the date of discovering the act, omission, or neglect but still within three years of the date of the act, omission, or neglect.

The date of discovery for legal malpractice is the date the negligence was either discovered or should have been discovered by a reasonable person in the plaintiff’s position. Plaintiff had constructive knowledge and therefore “discovered” defendant’s acts of malpractice in January 2007. Plaintiff filed her malpractice suit in November 2008, within three years of the acts of malpractice but more than one year after discovery. The trial and court of appeal applied the continuous representation rule to suspend the commencement of the one-year preemptive period until defendant’s continuing efforts to remedy his negligence had concluded. The Supreme Court, however, concluded that the continuous representation rule does not apply to the one-year peremptive period in La. R.S. 9:5605. As such, the Court reversed the judgment of the court of appeal and dismissed the claim, holding that plaintiff’s legal malpractice suit was untimely as a matter of law.

Jenkins v. Starns, No. 2011-C-1170, 2012 WL 206492 (La. 1/24/12).

Author: Beth S. Bernstein

Plaintiff sued several oil companies for damages in connection with pipe cleaning services that he performed for an employer. Plaintiff claimed that pipes he had cleaned contained hazardous toxins and carcinogenic radioactive materials, and that Defendants knew about these hazardous materials but failed to notify Plaintiff’s employer. As a result, Plaintiff sought general damages for increased risk of cancer, general damages for fear of cancer, and special damages for medical monitoring for early detection of cancer. Claimant mad no claim that had yet developed cancer.

Defendants moved to dismiss Plaintiff’s medical monitoring claim for failure to state a claim on which relief could be granted. The Court found that Plaintiff’s petition for damages contained insufficient facts to show that his claim for medical monitoring was plausible. He failed to allege that he had a manifest physical or mental injury or disease, and the fact that he may have been exposed to radiation was not sufficient. He made no mention of what type of medical monitoring might be. The Court granted Defendant’s Motion to Dismiss Plaintiff’s medical monitoring claim as being without factual or legal support.

Royal v. Exxon Mobile Corp., 2012 WL 380305 (E.D. La. 2012).

Author: Tyler A. Moore

Plaintiff worked for defendant as a repair supervisor when he was injured while operating a land-based crane. Defendant commenced paying benefits under the LHWCA, as well as medical bills related to the accident. Plaintiff then sued defendant asserting claims under the Jones Act. Defendant filed a Motion for Summary Judgment arguing that plaintiff was not a Jones Act seaman, but rather, a Longshoreman under the LHWCA. In applying the U.S. Supreme Court’s longstanding Chandris test for seaman status, the Court’s decision hinged on whether the nature of plaintiff’s employment demonstrated a substantial connection to the fleet of defendant’s vessels.

Defendant argued that plaintiff was primarily a shore-based employee whose duties did little to expose him to the perils of the sea. In support, defendant relied on the case of Saienni v. Capital Marine Supply, Inc., No. 03-2509, 2005 WL 940558 (E.D. La. 4/11/05), in which the plaintiff’s duties consisted of preventative maintenance, coordinating repairs, and performing actual mechanical and electrical repairs o the defendant’s fleet of vessels. In Saienni, the court recognized that the plaintiff performed a significant amount of repair work aboard vessels moored at the defendants fleeting facility; yet, the court granted summary judgment finding the totality of the plaintiff’s employment revealed that his work was not a seagoing nature.

While the Court agreed plaintiff’s employment was similar to that of the plaintiff in Saienni, it found that a substantial part of plaintiff’s work involved deckhand duties, including painting, repairing leaks, maintaining engines, fixing cracks in the hulls of vessels, chipping, and cleaning the vessels. The Court ruled that the nature of plaintiff’s employment falls “somewhere between the dichotomous extremes of a land-based longshoreman and a Jones Act seaman.” Consequently, the Court held that a jury could reasonably conclude that plaintiff’s connection to defendant’s fleet was substantial in terms of both its duration and nature and, therefore, found summary judgment improper.

Naquin v. Elevating Boats, LLC, No. 10-4320, 2012 WL 10586 (E.D. La. 1/3/12).

Author: Patrick J. Babin

The Supreme Court of Louisiana heard a personal injury matter to determine whether the Village of Moreauville kept its sidewalk in a safe condition. The specific issue in dispute was whether a 1.5 inch variation in height of sidewalk panels created an unreasonable risk of harm for a pedestrian.

In April 2008, Plaintiff and a friend were walking from a funeral to Plaintiff’s home. While walking, plaintiff noticed one panel of the sidewalk sloped down and the adjacent panel sloped up and began walking this portion of the sidewalk. However, plaintiff did not see a 1.5 inch ledge at the top of the upward slope. She fell and broke her arm.

Plaintiff sued Moreauville for damages. The matter went to trial and after a bench trial, the court found Moreauville 100% at fault and awarded damages in the amount of $349,214.39. At trial, plaintiff’s expert testified that the kedge was a tripping hazard because of the vertical change in elevation exceeding one-half of an inch. The expert further testified that the decline and incline immediately preceding the ledge made the ledge even more dangerous. Defendant’s expert testified that the sidewalk’s condition was not unreasonably dangerous. Defendant’s expert testified that the sidewalk’s condition was not unreasonably dangerous because plaintiff was aware of the poor condition of the sidewalk, plaintiff acknowledged the sidewalk’s condition before she reached it, and safely walked down the initial decline of the sidewalk.

On appeal, the three-judge panel affirmed in part and reversed in part. The court of appeal affirmed the judge’s ruling that the height difference created an unreasonable risk of harm, but it amended the judge’s liability ruling to attribute 10% of the fault to Plaintiff.

 The Supreme Court of Louisiana found that trial judge applied incorrect law. Specifically, the trial judge did not take into account how much it would cost Moreauville to repair its sidewalks. At trial, plaintiff’s expert testified that it would cost between $500.00 and $600.00 dollars to repair the deficient sidewalk at issue and there were a substantial number of sidewalks in Moreauville with the same type of height difference deficiency. The Supreme Court reasoned that the cost to Moreauville to fix sidewalk deficiencies would be substantial.

The Supreme Court considered the utility of the sidewalk versus the cost of repair to Moreauville. Although the utility of the sidewalk was high, it would be economically infeasible to require municipalities to correct all the sidewalk deviations of 1.5 inches or more. The Supreme Court noted that the risk of harm created by the 1.5 inch difference was low and the deficiency was visible. The Court did not find that the sidewalk condition was unreasonable risk of harm and the decisions of the court of appeal and trial judge were overturned. Judgment was entered in favor of Moreauville, dismissing Plaintiff’s suit.

Plaintiff v. Village of Moreauville, —So.3d —, 2011-898 (La. 1/24/12).

Author: Beth S. Bernstein

Plaintiff, a medical doctor, filed a personal injury lawsuit as a result of a car accident from which he alleged he suffered severe and disabling injuries. Defendant scheduled an independent medical evaluation (“IME”) for Plaintiff, but Plaintiff failed to appear. Defendant sought an order from the Court that Plaintiff reimburse Defendant for the $500.00 non-refundable deposit it paid in advance to the doctor who was to perform the IME, that Plaintiff be compelled to appear for a rescheduled IME, and that Plaintiff pay Defendant’s attorney fees of $750.00 in connection with the motion to compel.

Plaintiff maintained that shortly before the originally scheduled IME, his mother was injured and he had to travel to care for her. Defendant’s counsel informed the Court that none of the staff at the provider’s office received any contact from Plaintiff regarding his inability to attend the IME.

The Court found in favor of the Defendant, stating that it was reasonable to expect Plaintiff, a medical doctor, to extend professional courtesy to the IME provider by contacting him and informing him that he would be unable to attend his scheduled appointment. The Court ordered Plaintiff to reimburse Defendant $500.00 for the non-refundable deposit and attend the re-scheduled IME. The Court further ordered that if Plaintiff failed to comply with the Court’s order, the $750.00 in attorney fees would automatically become due.

Meisner v. Allstate Ins. Co. 2012 WL 353768 (E.D. La. 2012).

Author: Trevor M. Cutaiar

In many personal injury cases, the amount of damages that are awarded to an injured plaintiff can depend largely on the weight that the trier of fact gives to competing medical testimony. The United States Fifth Circuit Court of Appeals recently considered whether a jury was entitled to find a defense medical expert more credible than the plaintiffs’ treating physicians. The case, Fair v. Allen, involved three passengers who were injured in an automobile accident and subsequently filed suit against driver of the offending vehicle. The plaintiffs put on testimony of numerous treating physicians in support of their claims.

The plaintiffs’ treating physicians testified regarding a number of diagnostic procedures they performed. In response, the defendants offered their own medical expert who testified that these procedures performed by the treating physicians were not valid. For example, he testified that these procedures performed by the treating physicians were not valid. For example, he testified that discograms are not proper diagnostic tools and that other injection procedures performed on plaintiffs should not be performed. The defense medical expert opined that the plaintiffs had only suffered soft-tissue injuries. The jury returned a verdict in favor of the plaintiffs but the plaintiffs felt the amount of damages was insufficient.

On appeal, the Fifth Circuit resolved a number of issues, including whether the plaintiffs were entitled to a presumption in favor of their treating physicians’ testimony. The court acknowledged that, under Louisiana law, the testimony of a plaintiff’s treating physicians is entitled to more weight than a physician who only examines the plaintiff for litigation purposes. However, the presumption does not give a treating physician unlimited credibility. Here, there was ample evidence to justify the jury’s determination that the defense doctor was credible enough to outweigh the presumption given to the plaintiffs’ treating physicians.

Fair v. Allen, — F.3d –, 2012 WL 335655 (5th Cir. 2/3/2012).