NEW ORLEANS, LA — You’ve been seriously injured by another person’s negligence, and have had to file a lawsuit. Or maybe you’re just starting the claims process, and you believe you might be forced to file a lawsuit because the insurance company isn’t being fair with you. At some point in the litigation process, the insurance company’s lawyers are going to ask you if you’ve ever been arrested or convicted of a crime. If the answer is yes, especially if you don’t have a lawyer to advise and protect you, admitting to past involvement with law enforcement might frighten you. It might even discourage you from pursuing a claim. You don’t want this past history coming out in civil court. You fear the insurance company’s lawyers will use this against you. You may even feel like having an arrest record somehow turns you from the victim of another person’s negligence into a guilty party. So, how concerned should you be about a past criminal history, if you’ve been injured by someone else?
The answer is complicated. While it may seem unfair that having a criminal record could affect your pursuit of justice, insurance companies have a right to investigate claims to discover any potential fraud. Also, under certain circumstances, a past criminal history can be used against you in court, if that history demonstrates that you’ve been a dishonest person. However, when an insurance company asks if you’ve “ever been arrested,” they’re fishing for information that can’t necessarily be used against you.
Louisiana law wisely attempts to balance the right of injured parties not to have past transgressions held against them, with the right of insurance companies to protect themselves against fraudulent or dishonest claimants. Louisiana Code of Evidence Article 609 allows defendants to attack a plaintiff’s credibility only by revealing to a jury the name of the crime you have been convicted of, and only then if it involves “dishonesty or false statement,” or if it is punishable by death or more than six months in prison if a judge feels that this information’s importance to the case outweighs the prejudice such a revelation will create against you. And in both cases, if it’s been more than ten years since your conviction date, or if you were later pardoned or the judgment annulled, then it isn’t admissible. Juvenile judgments are generally not admissible, either.
Despite the requests for disclosure that the defendants will make from you or your attorney, a record of arrests, indictments, and prosecution can’t be used to attack your credibility at all. From the perspective of a person protecting a plaintiff’s rights, the defense, when asking if you’ve ever been arrested, is throwing a wide net in hopes of catching some foolish fish!
If you’ve been convicted of a crime that can be used against you, you still shouldn’t fear pursuing your claim. People who make mistakes get injured too. If justice is to truly be blind, we must fully examine the merits of each case. We must recognize that having a past conviction isn’t a defense for someone to hurt you. If you’ve been the victim of someone else’s negligence, don’t let a past criminal record stop you from seeking justice. Call the experienced attorneys at The de Boisblanc Law Firm today!
NEW ORLEANS — The increasing popularity of vaping has led to decreases in sales of traditional cigarettes, but has also contributed to a disturbing spike in youth nicotine addiction. Nicotine use has serious detrimental health effects on children—and there’s concern that vaping companies such as JUUL might intentionally be targeting yours.
It’s important that all parents understand how nicotine impacts a teenager’s developing brain. Studies have shown that nicotine exposure even in small quantities “increases the risk of developing psychiatric disorders and cognitive impairment” because the chemical targets the delicate neurological structure in the brain. In adolescents, whose brains are still undergoing changes and are less developed in areas that control understanding risks versus rewards, nicotine’s disruption of the brain’s chemistry is enhanced. Immediately upon consuming nicotine, teenagers have disturbances in working memory as well as reduced prefrontal cortex activation, among other complicated effects. The prefrontal cortex of the brain is responsible for executive functions and attention performance, and is one of the last brain areas to mature. Continued consumption of nicotine in adolescence correlates with a progression of deleterious effects on the prefrontal cortex that suggest an impairment lasting later into life. Animal studies demonstrate that exposure during adolescence induces changes in gene expression within the brain. Your teenager is more susceptible to becoming addicted to nicotine because her brain’s ability to evaluate risk is not as developed as yours, while the “reward” of the nicotine high has a greater effect on her. And the nicotine itself, at very low levels, can cause irreparable harm to her mental health and cognitive ability. It’s a vicious cycle: children are more likely to use nicotine because of their immature minds, and nicotine harms their minds’ healthy maturation.
While our scientific explanation for teenage behavior progresses over time, we’ve known for years that children are more susceptible to addictions, have less willpower than adults, and are more easily swayed by short-term pleasures and rewards than adults. With that understanding, we might expect that purveyors of highly addictive chemicals would do anything possible to keep their products out of the hands of children. Unfortunately, evidence shows that the opposite is true.
Leaked internal documents from the major cigarette manufacturer Philip Morris demonstrates that they have intentionally targeted children since at least the 1970s. Below, some choice excerpts demonstrate Philip Morris’s strategy concerning children:
“Marlboro’s phenomenal growth rate in the past has been attributable in large part to our high market penetration among young smokers . . .15 to 19 years old . . . my own data, which includes younger teenagers, shows even higher Marlboro market penetration among 15-17year-olds.” [Philip Morris Document #1000024921/4927, May 21, 1975]
“Sales—Outstanding! Outstanding! Outstanding! . . .This account is located 2 blocks from Bellingham High School. Our pre-sell has sold through. The account had reordered and received more product. Sales field report.” [PM Doc. #87051949, March 8, 1988]
“[To support Marlboro’ s growth, Marlboro must] continue growth among new, young smokers…While Marlboro continues to attract increasing shares of young smokers, expected declines in the number of young people restrict future volume gains from this source.” [PM Doc. #2043440057/0112, 1985]
“Because of our high share of the market among the youngest smokers, Philip Morris will suffer more than the other companies from the decline in the number of teenage smokers.” [PM Doc. #1000390803/0855, March 31, 1981]
“Thus, the ability to attract new smokers and develop them into a young adult franchise is key to brand development.” [PM Doc. #2044895379/484, 1992]
“It is important to know as much as possible about teenage smoking patterns and attitudes. Today’s teenager is tomorrow’s potential regular customer, and the overwhelming majority of smokers first begin to smoke while in their teens . . . it is during the teenage years that the initial brand choice is made.” [Special Report, “Young Smokers: Prevalence, Trends, Implications, and Related Demographic Trends,” PM Document #1000390803/55, March 31, 1981]
“We wonder whether such children may not eventually become cigarette smokers in their teenage years as they discover the advantage of self-stimulation via nicotine. We have already collaborated with a local school system in identifying some such children in the third grade. . . Report on study of hyperactive children.” [PM Doc. #1003288122, June 10, 1974]
“[If Philip Morris took] a more progressive position on tobacco, it would enable the company to move onto a higher moral playing field, to neutralize the tobacco issue and to focus attention on other, more appealing products.” [PM Doc. #2023586677, December 3, 1992]
This “more progressive position” evolved into promoting electronic cigarettes and vaping as a “healthier alternative” to cigarettes. The “more appealing product” is one with no odor, that comes in a variety of child-friendly flavors including candy-sweet fruit flavors, and flavors replicating popular childhood cereals. The CDC now believes that a recent decline in youth cigarette smoking is directly related to a spike in children vaping. To the astonishment of parents everywhere, the Unites States Government has investigated and concluded that vape purveyor JUUL actually targeted children in camp and school under the guise of educating them about their health and the dangers of cigarettes
It may come as little shock, then, that the parent company of Philip Morris, author of last century’s campaign to turn children into customers, owns a 35% stake in JUUL.
Vape manufacturers who target children deserve to be held accountable for the severe, potentially permanent damage their product can cause. Class action lawsuits are forming to bring companies that target children to justice. If your child is using vapes like JUUL, contact The de Boisblanc Law Firm today.
NEW ORLEANS, LA — Experienced in the handling of Traumatic Brain Injury cases, The de Boisblanc Law Firm understands the unique challenges faced by TBI patients. We’re not just committed to winning TBI victims money for their injuries; we’re also determined to help our clients increase their awareness of developing therapies and positive lifestyle changes which could lead to health improvements for TBI patients.
In previous articles we’ve discussed the complex injuries that are known generally as Traumatic Brain Injury (TBI). TBI interrupts the normal functioning of the brain. Victims experience a range of symptoms from “brain fog” and emotional changes, to coma and loss of vital functions. The symptoms can resolve over time, they can be a part of a permanent change, or the injury can be fatal. The American Academy of Neurosurgeons estimates that nearly 1.7 million brain injuries occur each year, and of these, up to 70% may be caused by motor vehicle collisions. According to the CDC, motor vehicle crashes are the leading cause of TBI death for persons 5-24 years of age.
Due to the frequency of TBI, a great deal of research is ongoing to help understand how best to treat it. An increasing number of studies demonstrate that environmental and lifestyle factors, such as diet, can have a major impact on a TBI patient’s treatment outcome. For example, research shows that omega-3 fatty acids, can increase production of molecular systems that serve synaptic function, while diets rich in saturated fats do the opposite.
According to this study, vitamin E, found in certain nuts, oils, and vegetables such as spinach, functions as an antioxidant and is useful in “reducing free radicals in the brain which would otherwise impede optimal function of neurons.” Curcumin and caffeine are also examined for their effects on brain health.
Vitamin D supplements also are shown to help reduce inflammatory response and reduce neuronal injury.
A recent Institute of Medicine report identifies the B vitamin choline, creatine (an amino acid-like compound), n-3 fatty acids (EPA and DHA) and zinc as the most promising areas for further research into the effects of nutrition on TBI.
These studies contribute to understanding and improving a holistic approach to treating Traumatic Brain Injury, accounting for the fact that the body has many interrelated systems. Neither these studies nor this article are intended to advise or replace medical treatment. Instead, they offer victims of Traumatic Brain Injury hope that with rapid scientific advancement, suffering can and will be lessened for many victims.
An essential component to recovering from any trauma is to obtain financial assistance. TBI often presents lifelong medical challenges. It’s important for any victim of an accident involving TBI, or their loved-ones, to hold the responsible party financially accountable. Insurance companies will try to settle your claim quickly, and for much less than its. In the aftermath of any accident, it’s important to consult with an experienced attorney regarding your rights. When the accident involves TBI, it’s essential to enlist an established, knowledgeable, and aggressive attorney who will hold the responsible party accountable, and seek the maximum available financial recovery. If you, or someone you love, has suffered a Traumatic Brain Injury due to the negligence or fault of another person, contact The de Boisblanc Law Firm today for a free consultation.
LOUISIANA — A high-school student attends a school affiliated ROTC camping trip at a private facility, where he drowns in the campground’s lake. This scenario is one of many variations on a parent’s worst fear, especially as the young man was with trusted authorities in whom most parents would feel their trust was well placed. While litigation is never the first thought in such disastrous circumstances, eventually the grieving parents filed an action against multiple involved parties, including the school district and property owners, see Robinson v. Jefferson Par. Sch. Bd., 9 So. 3d 1035, 1044–45 (La. App. 5th Cir. 2009), writ denied, 17 So. 3d 975 (La. 2009). The immediate and natural thought would be that some responsible person was negligent, thus causing or contributing to the student’s death. It would seem logical to a lay person that the school and/or the campsite would be responsible for any such negligence. However, in this case and other cases with certain facts in common, an accident victim or their surviving next-of-kin would not be able to recover any damages due to Louisiana’s recreational immunity statutes.
Recreational immunity is granted to certain landowners under LSA-R.S. 9:2791 and R.S. 9:2795, meaning that persons injured while involved in recreational activities on the landowner’s property might not be able to recover damages for their injuries. Recreational activities often come with high risk of injury, and include but are not not limited to the following: hunting, fishing, trapping, swimming, boating, camping, picnicking and hiking. The intention was to persuade owners of vast tracks of rural property to allow the public to recreate on their land, by preventing the landowner from being held liable if, for example, a hunter injured himself by falling into a hole left behind by an uprooted and fallen tree. Clearly, a landowner could not be expected to spend innumerable hours patrolling his property for naturally occurring hazards threatening individuals who may cross that property, with or without the owner’s knowledge. When seen in this light, recreational immunity statutes are a sensible compromise between protecting property owners, and promoting public recreation (which for the good of society as a whole). In the past, in order to be immune under the statute, a three prong test would have to be met, as follows: 1) Is the area where the injury occurred undeveloped, non-residential, and rural or semi-rural? 2) Was the injury the result of activities that can be pursued in the “true outdoors”? 3) Was the injury-causing instrumentality of the type that would normally be encounters in the “true outdoors”?
However, in 1985, the Legislature amended La. R.S. 9:2795(B)(1)(c) to add “caused by any defect in the land regardless of whether naturally occurring or manmade.” And in 2001, La. R.S. 9:2795 was again amended to include urban land as well as rural, which some have argued defeats the entire original purpose of exposing the public to natural wilderness. As a result of this, we see defendants arguing for immunity when patrons injure themselves on dilapidated man-made structures in public city parks, or other such fact patterns wherein immunity would never have been previously considered.
Plaintiffs should know, however, that there are still exceptions to recreational immunity which would allow recovery for damages in such an accident. If you have been injured in any recreational activity, it’s important to contact an experienced attorney as soon as possible, to help you understand how recreational immunity statutes may alter your rights. The de Boisblanc Law Firm offers free consultations for accident victims, including victims of accidents which may involve recreational immunity statutes. Call today to find the answers you need!
HOUSTON, TX — Louisiana residents know all too well how powerful storms can damage property and change lives forever. But what happens when victims of a flood say that actions taken by the government caused flooding to damage or destroy their property?
In a previous article, we discussed the August 5, 2017 New Orleans flooding which may have been aggravated by actions taken or neglected by the previous mayor’s administration. Today, Houston-area victims of flooding related to Hurricane Harvey are preparing to put the United States government on trial over allegations that the U.S. Army Corps of Engineers caused their homes to flood.
These claims focus on the Addicks and Barker Reservoirs. The plaintiffs allege that the U.S. Army Corps of Engineers knew that the reservoir capacities would exceed federally owned land, impacting private property. Furthermore, they state that water intentionally released from the reservoirs’ dams caused homes downstream to flood. According to attorney Daniel Charest, victims are seeking “just compensation for the taking of their property.”
Attorneys with the U.S. Department of Justice respond that Harvey was a “historically large rainfall event” and state that flooding was inevitable. Officials state that they opened the dams because of concerns that the dams would fail.
The trial, with a focus on just thirteen properties, will serve as a test for whether or not the federal government can be held liable for damage to reservoir-flooded homes. Similar cases indicate that the government can be held liable, and, perhaps even more significant to us all, argue such damages caused by the government are a Constitutional matter addressed by the Takings Clause of the Fifth Amendment. The Takings Clause provides that Americans are protected from a government that seizes their property for public use without just compensation, and there is precedent for considering government-caused flooding a taking of property which merits just compensation.
In Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012), the United States Supreme Court, citing Pumpelly v. Green Bay Co., 13 Wall. 166 (1872), held that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.”
The government has argued that the Fifth Amendment only prevents permanent takings, and does not provide that citizens should be protected from or compensated for temporary takings, but in Arkansas and other cases, the law demonstrates clearly that this is a poor interpretation of the Constitution. However, past decisions of the Court can be seen as weakening the protection of the takings clause, such as the Court’s controversial decision in Kelo v New London, 545 U.S. 469 (2005) While Kelo involved the government transferring private property from the original owner to a private development company connected with New London’s government, and not the government temporarily taking property to hold flood water in attempts to manage the effects of a weather disaster, Kelo does demonstrate that courts can interpret the law to offer broader license to the government and less protection to American citizens.
The thirteen plaintiffs in Houston serve as a test not only of whether or not Harvey-affected families will be compensated for property damaged by floods connected to the U.S. Army Corps of Engineers, but as yet another measure of what the government may and may not do, without just compensation, to citizens and their property. We should all pay close attention.
NEW ORLEANS, LA — When the person who injured you was engaged in actions that society finds particularly egregious, a court may order that the liable party must pay you punitive damages in addition to traditional damages such as compensation for medical bills or pain and suffering. Punitive damages have a well-established history in British common law, and therefore are common in many American states.
However, Louisiana law is largely built on French jurisprudence, with origins in Roman law, and does not generally recognize punishment or revenge as appropriate in civil cases. At the same time, due to the growing Anglo-American influence with its heritage of British common law, punitive damages began to be discussed in 19th Century Louisiana. Lively debate ensued both in court and out, with Justice C.J. Slidell referring to the esteemed French jurisconsult Charles Toullier’s writing, “Si la faute qui pauvait causer du dommage n’en a point causé, la loi n’inflige aucune peine, à moins qu’une défense de commettre l’action n’eût été portée sous une peine déterminée; car alors a peine dérive d’une desobéissance, d’une contravention à la loi.” Considering Louisiana’s Civil Code in an 1855 case, Slidell opined that the discretion allowed to a court or jury to rule on certain elements of damages “by no means involves the idea that in the assessment of damages, the court or jury can travel beyond the enquiry how far the sufferer himself is affected, or exaggerate the amount for the purpose of vindicating offended public justice, or punishing the offender as an example to others.” Black v. Carrollton R. Co., 10 La. Ann. 33, 45 (1855).
Today, as a result of this tension between the Anglo and Franco-Roman traditions, Louisiana law does allow punitive damages, but only in circumstances specifically described by statute. Of these, there are very few, but the circumstance most relevant to the average plaintiff is the statute allowing for punitive damages to be assessed in a civil proceeding against a motorist who was operating his vehicle under the influence of alcohol or drugs when an accident occurred. Article 2315.4 of the Louisiana Civil Code states“In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.”
To complicate matters, even if a Louisiana court has the ability to award punitive damages after your accident with an intoxicated driver, some insurance companies exclude punitive damages from certain policies. It is critically important that you engage the services of an experienced attorney if you or a loved one has been injured by a person under the influence of alcohol or drugs.
Further reading on punitive damages provides interesting information, spanning from the Code of Hammurabi to the Digest of 1808 and onward. To discuss punitive damages or any other aspect of your accident or case, call The de Boisblanc Law Firm today.
“In the real world, with all of its complications and imperfections, accident victims are often people who have already been hurt in some way”
NEW ORLEANS, LA — In the ideal personal injury claim, a victim is healthy before an accident, and only afterwards has clearly demonstrated accident-related injuries. But as we all know all too well, life is rarely ideal or clean-cut. In the real world, with all of its complications and imperfections, accident victims are often people who have already been hurt in some way. It’s important for the victim with pre-existing conditions to understand, first, how ordinary your circumstances actually are: you are not alone! The second thing you need to know, is what your rights are.
Take back injuries, for example. The spine and all of its connecting ligaments, nerves, and soft tissue is one of the easier regions of the body to injure during a motor vehicle accident. Each year approximately three million people are injured in motor vehicle accidents. At the same time, millions of Americans endure acute, degenerative, and chronic back injury and pain. This substantially increases the chances that an individual who endured a back injury in a collision, also suffers from a pre-existing back condition.
Research suggests that a full one-third of Americans between the ages of 40-59 years old suffer from degenerative disc disease. Women are more likely to suffer from this condition, at a rate of 40-70% higher instance of pathology than men of the same age.
Furthermore, up to 80% of Americans suffer, or have suffered, from low back pain. Of this number, 20% will commonly develop chronic low back pain.
Victims who have a pre-existing condition may be reluctant to come forward after someone else’s negligence has caused them further injury, or made their pre-existing condition feel worse. Big Insurance will discourage these fragile victims from pursuing their claims. However, victims need to know that the law is on their side. A victim’s pre-existing condition is NOT a defense for injuring him or her. In fact, the Eggshell Plaintiff Doctrine instructs us that we must “take a plaintiff as he comes,” meaning that a negligent person is responsible not only for any new injury they cause, but also for any aggravation to a pre-existing condition. This holds true even if you are severely injured from accident forces which wouldn’t cause as much harm to a healthy person. The law, in the interest of public policy, recognizes that certain individuals are more fragile, more easily injured, and that these people deserve just as much protection from negligent actions as healthy people. You are not to blame for your pre-existing condition!
If you have a pre-existing condition and you’ve recently been a victim of someone else’s negligence, it’s important to be up front with an experienced personal injury attorney regarding your medical history, so that this information can be properly presented to the negligent party and their insurance company. Your medical providers can then determine exactly how much your condition has worsened due to your accident. This will allow you to hold the negligent person responsible, so that you can recover for your medical costs, pain and suffering, and any other damages you may have suffered. At The de Boisblanc Law Firm, you can have a free consultation to discuss your accident as well as any pre-existing conditions you may have, jump starting your road to recovery.
March is Brain Injury Awareness Month, with a slogan of #ChangeYourMind meant to help generate awareness about what has been labeled “the silent epidemic” by the International Brain Injury Association, due to the high dangers of misdiagnosis or missed diagnoses. As previously reported, traumatic brain injury (TBI) has a potential for grievous health and financial consequences. TBI is often a life-changing event, generating a range of symptoms and effects from mood changes and suicidal thoughts, all the way to vegetative states. The CDC estimates that TBI costs Americans $76 million per year.
While TBI can be a major life-changing event, progress has been made both in our ability to detect TBI, and to help mitigate the symptoms. Clinical trials are ongoing involving brain stimulating techniques such as transcranial magnetic stimulation (TMS), transcranial direct current stimulation (tDCS), low-level laser therapy (LLLT) and transcranial doppler sonography (TCD) techniques. These techniques are being considered for both diagnostic and therapeutic applications. These techniques show promise with aiding in cortical reorganization and enabling functional restoration in TBI patients. Further research is needed in this area, as well as in general understanding of TBI. Public awareness is an important part not only of helping to prevent such serious injury, but in generating support for innovative new research to improve our diagnostic and therapeutic ability.
The US Department of Defense hconsiders TBI one of the leading causes of death in both civilian and military populations, and therefore has granted researchers at UC Davis a $4.5 million 3-year grant to develop “better, more precise treatments” for TBI where it occurs alongside other traumatic injuries.
Another innovative therapy with promising potential is hyperbaric oxygen therapy, or HBOT. Some traumatic brain injury patients have had successful results utilizing this therapy. HBOT has been demonstrated to have neuroprotective effects, which may contribute to healing damage from a TBI.
Unfortunately, there is no “silver bullet” treatment when it comes to TBI. As motor vehicle collisions are the second leading cause of TBI, minimizing risk factors by driving safely, soberly, and defensively, and always wearing a safety-belt, will help you reduce your chance of suffering a traumatic brain injury. Unfortunately, we can only control our own actions. The chance of being injured due to another person’s negligence can never be fully prevented.
If you or someone you love is a victim of traumatic brain injury caused by another person’s negligence, it’s critical that you get the right help, not only to find the best medical treatment possible, but also to protect your rights and fight for a financial recovery to help you mitigate the high costs of TBI. Furthermore, choosing an attorney who has experience with TBI, and who stays current in understanding of TBI symptoms, diagnostic capabilities, and treatments, may increase your chances of a better outcome after a traumatic brain injury. The experienced attorneys of The de Boisblanc Law Firm have won significant awards for accident victims who have suffered a traumatic brain injury, and stand ready and willing to assist you and your family in this difficult time.
NEW ORLEANS, LA — Carnival season is in full swing, and the good times will be rolling all the way through Mardi Gras Day, which is March 5 this year. For the most part, locals and visitors alike will experience one of the best celebrations the nation has to offer, but with thick crowds, throws of all shapes and sizes tossed from moving floats, and an abundance of festive beverages flowing, there is a great potential for accidental injury. Yet even if you are injured by another person during Mardi Gras, you may not be able to recover any damages, depending on the circumstances of your injury. This is because of Louisiana Revised Statute 9:2796 , a uniquely Louisiana law which states in part that “no person shall have a cause of action against any krewe or organization, any group traditionally referred to as Courir de Mardi Gras, or any member thereof, which presents Mardi Gras parades” and advises that anyone attending Mardi Gras parades “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe or organization in such parades.” Colorfully, these items include but are not limited to beads, cups, coconuts, and doubloons. Yet this law hasn’t gone without challenge.
One challenge to this law was brought by Mrs. Daisy Palmer and her husband against New Orleans’ century old Zulu Social Aid and Pleasure Club, which traditionally parades on Mardi Gras Day. Mrs. Palmer represented that while attending the parade, she had been struck in the head by one of Zulu’s signature coconut throws. The only exception the law has provided to the immunity coverage extended to krewes is if there is gross negligence involved. In this case, the Civil District Court for the Parish of Orleans did not feel that Palmer’s case was likely to prove an exception to the immunity law, and therefore ruled in favor of the Zulu Club. The Palmers appealed, and the Fourth Circuit Court of Appeals affirmed the lower court’s ruling.
In Duplantier v. Krewe of Pygmalion, et al, the court found that the immunity statute didn’t apply to all of the defendants, highlighting another important characteristic of the Mardi Gras Immunity Statute. Mr. and Mrs. Duplantier were injured when the float they were riding on collided with a tree limb. This was determined to possibly be due in part to the actions of the driver of the tractor towing the float. The court found that contracted employees of a krewe, who are compensated to provide services such as towing floats to the parading krewe, are not covered by the Mardi Gras Immunity Statute, and can therefore be found liable if their actions cause injuries to others.
Not only are Mardi Gras krewes extended special immunity in Louisiana, the state also provides that Mardi Gras Day can be considered a legal holiday. Louisiana Revised Statute 1:55 provides that “In the parishes of Orleans, St. Bernard, Jefferson, Plaquemines, St. Charles, St. James, St. John the Baptist, East Baton Rouge, Lafayette, St. Tammany, Iberia, St. Martin, Ascension, Washington, Calcasieu, Jefferson Davis, St. Landry, Evangeline, Cameron, Assumption, St. Mary, Acadia, Vermilion, Iberville, Pointe Coupee, West Baton Rouge, Lafourche, East Feliciana, and West Feliciana, and in all municipalities, Mardi Gras shall be a holiday when the governing authorities so declare by ordinance.”
So whether you’re planning to watch the parades from a friend’s balcony, in the grandstands, or on the street in your favorite spot, or if you’re visiting us from places where the day before Ash Wednesday is “just another day,” we hope you lassaiz le bon temps rouler and above all, stay aware and celebrate safely! Wishing you a fun-filled Mardi Gras from The de Boisblanc Law Firm!
NEW ORLEANS, LA — In a previous entry to this blog, we discussed the dangers of legal funding loans. The chief concern is that by the time your case is settled, the amount such third party lenders will say you owe is significantly greater than the principal plus lawful interest you’d have been charged with an ordinary loan. Yet even with this serious downside, legal funding, or lawsuit loans, are growing in popularity in the United States, leading some opponents to challenge the growing industry in ways that can affect your lawsuit.
The most prominent of these is the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, which suggests not only that the legal funding industry is investing close to $1 billion annually, but that greater transparency is needed. To achieve this goal, they seek to add a provision to Federal Rule of Civil Procedure 26(a)(1)(A) which would require the disclosure of any compensation agreements that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment, or otherwise.”
The concern is not only that these companies disproportionately target lower income people who cannot afford the financial hardships that follow a serious accident, by charging them large and excessive fees for small sums of badly needed money. Opponents of lawsuit loans also raise concerns that this funding has the potential to create conflicts of interest, or even facilitate fraud. Courts must now consider whether or not to compel plaintiffs to disclose if they have taken legal funding, and from whom, and even require them to produce the contracts they signed to receive such funding. The Northern District of California has gone so far as to order the disclosure of people or entities who “fund[ ] the prosecution of any claim or counterclaim” in a proposed class, collective, or representative action. And the International Bar Association’s (IBA) 2014 Guidelines on Conflicts of Interest in International Arbitration require disclosure of any party with a “direct economic interest” in a potential award.
If defense attorneys discover the identity of your legal funder, they will investigate any possible connections between the funding company and other parties involved in your case. Furthermore, gaining access through discovery requests to the contract you signed with the lender, or the application you filled out wherein you described your case, might cause additional complexities for your lawsuit. Where legal funding is tied to medical funding, not only is the client required to pay interest and fees on money used to pay for his health care, unscrupulous medical providers may engage in corrupt business practices to inflate the cost of your medical care. The insurance company will unknowingly pay more for a medical procedure than it is worth. The inflated cost, if uncontested by your attorney, will then be deducted from your recovery, and you will pay interest, fees, and charges on money used to pay that inflated cost.
On the other hand, the legal funding industry has countered that their services “level the playing field,” allowing small business and individual claimants to pursue litigation against “big business.” They argue that legal funding also helps plaintiff attorneys who work on contingency, as plaintiff attorneys must fund medical treatment and legal costs for their clients, which they will be compensated for when and if a settlement is reached. Less established attorneys may not have sufficient capital to fund many cases at once, nor do they have the sort of physical collateral to build a relationship with a bank which would allow them to handle client costs with only the lawful and minimal interest attached to the loan.
Despite the arguments on both sides, lawsuit loans are legal in Louisiana and likely here to stay, at least for now. As a plaintiff, you must decide if your needs are great and urgent enough to be worth the high fees and charges you will have to pay should you choose to make a loan against your case. If the U.S. Chamber Institute for Legal Reform and its allies have their way, choosing to contract with litigation funders will add further complexities to your case.
If you’ve been in an accident, the smart choice is to contact an established attorney who can pursue your claims without weighing your case down with unnecessary fees and costs. The de Boisblanc Law Firm, serving the Southern Louisiana region for over fifty years, has the experience you need to secure justice for your injuries while minimizing your costs.