The P&L trial attorney team of Guy Perrier and Nathan Gaudet scored another victory for a national trucking company, its insurer and driver. The plaintiff, who brought suit individually and on behalf of her three year old son, was the executive director of a non-profit company in the business of providing meals to under-privileged school children in her rural community. She alleged the defendant driver backed into her vehicle, causing her to undergo a two-level cervical fusion. She was still treating at the time of trial, two and one-half years later. In addition to her general damages and past medical damages, she demanded millions of dollars in lost past and future wages and a lifetime of future medical treatment.
Prior to trial, P&L secured several wins through motion practice and oral argument. Most importantly, the defense defeated the plaintiff’s motion to remand the case to state court, the plaintiff’s preferred venue. The defense successfully persuaded the Court to allow as evidence a letter sent by the plaintiff’s counsel to the insurer involved in a later accident in which she appeared to blame some of her damages on the later accident. The defense persuaded the Court to exclude an admission of liability found in an email from its insurer to the plaintiff’s counsel as well as the criminal and employment-related discipline history of its driver, which included multiple felonies within the past ten years. The Court, on motion for partial summary judgment of the defense, dismissed all claims of direct negligence against the trucking company.
With the full support of all three P&L clients, the defense presented a united front and collaborative effort during the week long jury trial. At trial, the plaintiff demanded over $3,500,000. She presented a lifecare plan detailing nearly $2,000,000 in future medical costs and over $1,000,000 in future wage loss. The defense, however, carefully attacked the plaintiff’s credibility and elicited considerate damaging testimony, including an admission the plaintiff filed fraudulent tax returns.
The jury found the plaintiff 50% at fault, and after a reduction for her fault, the plaintiff was awarded $8,500 in general damages and $117,500 in past medical specials. The jury made no award for wage loss or future medical specials, despite the plaintiff presenting testimony from a pain management doctor, orthopedic surgeon, economist and vocational rehabilitation counselor in support of those demands. The jury awarded no damages to the minor child.
Following trial, the plaintiff filed a Motion for New Trial, arguing general damages of $8,500 for a cervical fusion is “inconceivably low” based upon cases involving similar accidents. She also claimed she possessed “newly-discovered” evidence in the form of a second police officer. She produced the officer’s affidavit, which stated the defendant driver admitted he backed into the plaintiff. The Court agreed with the defense, holding the jury was entitled to rely on the evidence presented by and argument of the defense in awarding $8,500 in general damages even though the plaintiff had a major spine surgery. In denying the Motion for New Trial, the Court ruled the police officer’s statement was not newly-discovered evidence because the plaintiff, in the exercise of due diligence, should have identified it prior to trial.
Following denial of the Motion for New Trial, the plaintiff appealed the decision to the United States Court of Appeals for the Fifth Circuit, arguing the denial of the Motion for New Trial was erroneous because general damages verdict was inadequate. The plaintiff also argued the trial court improperly excluded the “newly-discovered” second police officer, failed to find the jury had reached a “compromise verdict” and committed various other errors in evidentiary rulings. Following oral argument, the Fifth Circuit affirmed the decision of the trial court in all respects, including the general damages award of $8,500 for the plaintiff’s cervical fusion.
Perrier and Lacoste attorneys Guy Perrier and Ralph Aucoin, Jr. obtained a ruling from the Louisiana First Circuit Court of Appeal granting their writ application, reversing the trial court’s denial of their motion for partial summary judgment, and entering judgment in favor of their client, an excess insurer, holding that it is entitled to a credit for the full $1,000,000.00 underlying limits in compensatory damages before their excess policy applies. The panel was comprised of Judges Pettigrew, McDonald, and Calloway.
The lawsuit arose out of a minor impact, low speed, rear-end collision between two commercial vehicles. Plaintiff alleged radiating back pain and was treated with an epidural steroid injection, medial branch blocks, and bilateral rhizotomies. No surgery was recommended. Medical expenses totaled $66,926.68. Prior to trial plaintiff amended his petition based on scant evidence to allege that the defendant driver was impaired at the time of the collision and sought punitive damages from the driver and his employer. The primary policy did not exclude punitive damages, but the excess policy did.
Plaintiff then entered into a settlement agreement with the primary insurer which included a Gasquet release of the insureds in exchange for $990,000 of which $900,000 would be allocated to punitive damages with only $90,000 allocated for compensatory damages. The excess insurer was not a party to the lawsuit at this time and did not participate in these settlement negotiations, but did send written notification that it objected to any proposed apportionment and would not agree to be bound by it. Just 8 days before trial was set to begin, the excess insurer was named as a defendant and served with the original and amending petitions.
In addition to moving to continue the trial date, counsel for the excess insurer immediately filed a motion for partial summary judgment arguing that: 1) its policy excludes coverage for punitive and exemplary damages and plaintiff’s claims for same against it must be dismissed; and 2) it is entitled to a credit for the full $1,000,000 underlying liability limits for compensatory damages before its excess policy applies. Plaintiff’s counsel argued that the excess insurer was only entitled to a credit for $100,000 in compensatory damages based on the allocation. The trial court granted the first part of the motion, but denied the second stating that there were issues of material fact with respect to the settlement agreement.
Perrier and Lacoste’s appellate team argued in briefs that the failure to grant the credit was contrary to the law, ignored the express exclusion in the excess policy, did not serve the purpose behind an award of punitive damages, and constituted an abuse of discretion. In reaching its decision, the First Circuit relied on its prior ruling in Malbreaugh v. CNA Reinsurance Co., 2003-2088 (La. App. 1 Cir. 9/17/04), 887 So.2d 494, writ denied, 2001-2568 (La. 12/17/04), 888 So.2d 871. In that case, as a matter of first impression, the First Circuit held that a punitive damages award was improperly allocated to the liability coverage to allow the victim to recover compensatory damages under her UIM coverage which contained an exclusion for punitive damages.
As a result of their efforts Perrier and Lacoste obtained a favorable ruling that will thwart attempts at this type of improper apportionment in the future and their client can now move forward with a ruling in hand stating they are entitled to a $1,000,000 credit in compensatory damages before their excess policy applies.
After a week-long trial, the jury took just over one hour to return a unanimous defense verdict in the matter of Alvin Kie, et al v. Tory Williams, et al 3:15-cv-2304 U.S Dist. Court for the Western District of Louisiana. The case was tried by the Perrier & Lacoste litigation team of Guy Perrier and Ralph Aucoin, Jr.
The case involved a liability dispute over a side to side collision at an intersection in Richland Parish, LA. Plaintiff requested $2.2M in damages, which included a recommendation for a multi-level cervical fusion surgery and pain management for life; including epidural steroid injections, facet blocks, and radiofrequency ablation procedures.
Plaintiff testified that he was rear-ended by defendant’s tractor-trailer as he was stopped in his pick-up truck in the left hand lane of the intersection of LA Hwy. 17 and U.S. Hwy. 80, while waiting for oncoming traffic to pass in order to make a left turn onto Hwy. 80. Plaintiff produced three alleged witnesses to support his claims, none of whom stayed on the scene or identified themselves to the investigating officers. The defense was able to discredit Plaintiff’s alleged eyewitnesses by pointing out inconsistencies in their statements as well as their relationship with Plaintiff. Also instrumental in defending this matter was keeping Plaintiff’s guest passenger off the stand. This was accomplished during the pre-trial conference by pointing out that if he was called, the defense would be allowed to cross examine him concerning his bias by asking questions about the lawsuit he filed against the Plaintiff and that he entered into a settlement agreement with Plaintiff’s liability insurer. As a result, Plaintiff’s counsel made the decision not to put his guest passenger on the stand as a fourth eyewitness.
The defendant driver testified that he maintained control of his tractor-trailer in the right hand lane as he traveled through the intersection. Defendants called investigating officer Derick Whitney who arrived on the scene one minute after receiving the call. He obtained a written statement from the Plaintiff in which the Plaintiff wrote that the initial contact was to his passenger side mirror, contradicting his in court testimony of a rear-end collision. The officer photographed the mirror folded in on Plaintiff’s pick-up truck as well as a scrape with scuff marks going forward on the side of Defendant’s tractor. The officer also observed the debris field from the accident in the center of the two lanes and ahead of the white stop line. This allowed Defendants to argue that plaintiff was moving forward at impact and crossed into Defendant’s lane causing the collision.
Plaintiff’s medical testimony was exclusively presented by video testimony, which included Dr. Pierce Nunley, an orthopedic spine surgeon, and Dr. John Ledbetter for pain management. The defense experts were Dr. Donald Smith, a neurosurgeon, and Dr. Curtis Partington, a neuro-radiologist. When Plaintiff was confronted with a work physical he completed approximately four months after the accident denying any injuries, he testified that it was ok to be untruthful on the physical and with the healthcare professional because he did it to benefit his family, but that he would never lie to the court. This testimony further damaged his credibility.
Pre-trial motions helped set up this successful defense. Plaintiff’s numerous social media postings showing him on vacation, at waterparks, and attending concerts and sporting events, were obtained via discovery motions. Improper impeachment evidence concerning expert witnesses was eliminated, expert reports were not introduced into evidence, and Plaintiff’s stipulated to the defense IME expert’s credentials even though they fought pre-trial to prevent him from being retained or accepted by the court. The defense team was even able to elicit testimony from Plaintiff’s wife, who was only presenting a loss of consortium claim, that he had a past history of drug abuse requiring a 28 day stay at an in-patient treatment facility. A pre-trial order was obtained stating that if Plaintiff presented lay testimony concerning his alleged memory loss that never resulted in professional treatment, then Defendants would be allowed to cross-examine that witness concerning whether or not they considered his past history of drug abuse as contributing to his alleged memory issues. In spite of this order, Plaintiff’s counsel asked the wife about her husband’s alleged memory loss, opening the door to Defendants’ follow up questions concerning his history of drug abuse.
Guy Perrier and Trey Wimberly of Perrier & Lacoste, LLC, and Robert Gibbs of Gibbs Travis PLLC, obtained a defense verdict in the Circuit Court of Humphreys County, Mississippi for a major national trucking company and its driver. Following an eight-day trial the 12-member jury deliberated for five hours before returning a unanimous verdict of no liability in favor of the defendants. Such verdicts are uncommon in this rural county in the Mississippi Delta which is a notoriously difficult venue for defendants.
The case arose out of an accident that occurred at night on September 23, 2013, on Louisiana Highway 434 in Lacombe, Louisiana. Plaintiff’s counsel filed the lawsuit in Humphreys County, where the truck driver resides. Plaintiff was walking on the shoulder of the dark, unlit, rural highway. The truck driver was operating an 18-wheeler, and had just pulled out of the driveway of a distribution center. The truck driver completed his turn and was looking straight ahead when plaintiff stepped into his lane of travel. The evidence at trial showed that the truck driver never left his lane, although plaintiff attempted to prove that he ran off the roadway before his vehicle struck plaintiff.
Plaintiff alleged injuries including a closed fracture of the base of the skull with hemorrhage, loss of consciousness, lung contusion, acute respiratory failure, closed fracture of one rib, acute post-hemorrhagic anemia, delirium, hypertensive encephalopathy, and closed fracture of the shaft of the clavicle. Plaintiff further claimed a severe, traumatic brain injury from the accident requiring inpatient, brain injury rehabilitation for the remainder of his life. A CT of plaintiff’s brain showed a right frontal subdural hematoma, as well as an area of hemorrhage. A repeat CT scan showed an increase in the size of the hematoma, and hemorrhages. On September 24, 2013, surgery was performed to remove part of plaintiff’s skull to relieve pressure on his brain, followed by two follow-up procedures to repair his skull in February 2014 and March 2016. Plaintiff was allowed to show the jury several graphic photographs of his head wound and other injuries over defendants’ objections. Plaintiff’s past medical expenses were $610,000 and the future medical expenses presented to the jury were over $28 million. Plaintiff also claimed past and future lost wages totaling $439,000. The total special damages claim exceeded $30 million and Plaintiff asked the jury for a total of $31 million, plus an award for pain and suffering.
Several favorable pre-trial rulings helped set the stage for a successful defense. Significantly, the court granted defendants’ motion for partial summary judgment on plaintiff’s claims for direct negligence against the trucking company, and plaintiff’s claim for punitive damages. As a result, plaintiff was unable to present any evidence of alleged D.O.T. violations, or other lawsuits against the trucking company, and was forced to try the case on the facts of the accident itself. Additionally, the court granted defendants’ motion in limine to declare choice of law. As a result, liability was determined under Louisiana law, and damages were determined under Mississippi law, which provides a $1 million cap on non-economic damages.
With respect to liability for the accident, defendants were able to persuade the jury that plaintiff was 100% at fault for the accident. Plaintiff testified was that he was wearing an orange reflective safety vest and never left the shoulder of the roadway; however, the testimony of several witnesses at the accident scene revealed that the vest did not have reflective tape, and the investigating officer testified that defendants’ vehicle never left the roadway. Ultimately, the jury determined the accident was caused by plaintiff’s negligence in walking on the shoulder of a dark, unlit, rural highway at night, with his back to approaching traffic, and then stepping out into the roadway prior to impact.
After a week-long jury trial, the Perrier & Lacoste litigation team of Guy Perrier and Nathan Gaudet scored a victory for our client, a nationwide trucking company, and its driver.
The accident occurred when the defendant driver cut across three lanes of interstate and side swiped the plaintiff, who was traveling approximately 70 miles per hour. The plaintiff, who had no prior history of shoulder, back, neck, knee or wrist pain, received epidural steroid injections to his spine, a bilateral lumbar laminectomy, a three-level discogram and a three-level bilateral lumbar medial branch neurotomy at the hands of Dr. Kenneth Vogel. He also had a left knee arthroscope by Dr. Allen Johnston. The procedures did not ameliorate his painful condition, and he was still treating with Dr. Vogel at the time of trial.
At trial, the plaintiff’s medical specials were nearly $100,000, and he had treated for approximately 28 months. In addition to the spine and knee procedures, Dr. Vogel recommended a lifetime of continuous care for the plaintiff’s lumbar spine, and Dr. Johnston testified the plaintiff would need a knee replacement surgery. The plaintiff’s claimed future medical special damages were well into seven figures and supported by medical testimony.
The jury found the plaintiff’s spinal procedures and treatment with Dr. Vogel and knee surgery and treatment with Dr. Johnston were not caused by the accident. The jury awarded the plaintiff total damages in the amount of $38,700, which were further reduced after assessing 10% fault of the plaintiff for not paying attention.
After a seven day jury trial in Monroe, Louisiana the Perrier & Lacoste litigation team of Guy Perrier and Ralph Aucoin, Jr., were able to obtain a very favorable defense verdict. Plaintiff sought damages totaling $3M. The jury awarded only $51,739.65 in damages to the plaintiff and $10,000 for loss of consortium to his wife.
The case involved damages only. The insured drove away form a loading dock with the plaintiff still in the trailer unloading it with a forklift. Both the plaintiff and the forklift fell out. The forklift landed on its wheels and plaintiff remained in the seat. He had not returned to work by the time of the trial over 4 ½ years post-accident, despite multiple doctors clearing him to do so. He had a total of 6 MRI’s and 2 EMG studies. The films and tests were essentially negative with the exception of some minor bulges that the defense expert testified were part of the normal aging process. No surgery was recommended. Plaintiff’s argument was that he was a chronic pain patient and was going to need treatment for the remainder of his life. Plaintiff’s vocational rehabilitation expert and economist were completely discredited and the jury ignored their reports which totaled $1,846,494.13 for lost earnings, lost earning capacity, past medicals, and future medical expenses.
Opposing counsel tried to oversell the injuries arguing that it was worse than a surgery case because there was nothing that could be done to fix the plaintiff. Facebook photos were a big factor, showing Plaintiff at NBA, NFL, high school, and college events. He also posted photos on vacation, at concerts, the beach and an amusement and water park. The jury didn’t buy plaintiff’s argument. Perrier and Aucoin further convinced the jury to reduce Plaintiff’s recovery by 55% due to his failure to mitigate his damages.
Post-trial plaintiffs filed a Motion for Judgment Notwithstanding the Verdict asking the trial court Judge to increase their total damage awards from $61,739.65 to $2,340,638.00. Defendants were successful in opposing the motion which was denied resulting in the jury verdict and trial judgment remaining intact. A motion for judgment on defendants’ offer of judgment to recover costs and expenses for bringing this case to trial is being considered. The matter is on appeal.
Guy Perrier and Curt Rome of Perrier & Lacoste, LLC obtained a defense verdict in the U.S. District Court in New Orleans, Louisiana for Wisconsin Coach Lines, Inc. and its driver, Larry Westphal. Following a five-day trial and 2 ½ hours of jury deliberations, the jury returned a verdict of no liability in the matter of Lillie Rea v. Wisconsin Coach Lines and Larry Westphal, 2:12-cv—1252, U.S. Dist. Ct. for the Eastern District of Louisiana. Such verdicts are uncommon in New Orleans and came after a significant amount of pre-trial investigation and posturing.
The case arose out of an accident that occurred at approximately 8:30 p.m. on March 29, 2011 on the corner of N. Peters Street and Canal Street in New Orleans. Plaintiff was driving a Toyota Camry owned by her mother. Defendant Larry Westphal was operating a Wisconsin Coach Lines motor coach carrying approximately 45 passengers. Plaintiff alleged that the accident caused injuries to her neck and back. The neck injury required a cervical fusion at the C5-6 level. Medical testimony presented suggested that the back injury may require a microdiscectomy at the L5-S1 level as well as possible epidural steroid injections and treatment for the remainder of Plaintiff’s life.
Plaintiff’s past medical expenses were $151,000 and the future medical expenses presented to the jury were over $2,000,000. She also claimed a lost future earning capacity of $583,000. The total special damages claim was over $2.75 million and Plaintiff asked the jury for a total of $4 million.
Before trial Plaintiff claimed even greater special damages. She had submitted an affidavit from her treating neurosurgeon suggesting that Plaintiff may need up to four future surgeries, two in the cervical area and two in the lumbar area. Although it is difficult to limit a treating physician’s opinions, Perrier and Rome were able to successfully argue that the four-future surgery opinion did not satisfy the disclosure requirements of Federal Rule of Procedure 26.
Other favorable pre-trial rulings helped set the stage for a successful defense. One significant ruling permitted the admissibility of photographs from Plaintiff’s Facebook account as long as a witness testified that it was actually Plaintiff depicted in the photo. The ruling paved the way for introduction of pictures of Plaintiff on a tubing trip, attending festivals and concerts and shaking her head hard enough to blur a camera. All of which undermined the severity of the injuries alleged. The efforts paid off as the jury also found that Plaintiff’s injuries were not a result of the March 29, 2011 accident.
With respect to liability for the accident, Perrier and Rome were able to persuade the jury that Plaintiff was 100% at fault for the accident. Plaintiff testified was that she was stopped at a red light at the intersection for nearly a minute when the bus driven by Larry Westphal struck her car with the front right corner of the motor coach. Perrier and Rome were able to elicit testimony from other witnesses, including Plaintiff’s accident reconstruction expert to the contrary. The accident was caused by Plaintiff when her car door hit the motor coach’s tire which was stationary but turned out in anticipation of turning when Plaintiff squeezed between the bus and the curb causing the turned wheel to make contact with Plaintiff’s door.