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18 Wheeler and Heavy Truck Accidents

By kervin,

18-Wheeler accidents in Louisiana affect thousands of lives each year. Louisiana’s thousands of miles of highways and byways are the perfect environment for an unsuspecting motorist to collide with an 18-wheeler or heavy weight truck. When these issues arise its important that you, the injured person, immediately contact the experienced attorney’s of the Law Office of David Kervin, Jr. Our firm will perform a thorough investigation and call experts, if necessary, in order to determine whether we can hold the driver an owner of the big rig accountable.

 

Due to the enormous size of these vehicles, the injuries sustained from such a collision may be serious and can even result in death. Injuries from such a collision may include brain and spinal cord damage, paralysis, amputations, broken bones, and back and neck injuries.

 

The Typical Issues Surrounding 18 Wheeler Accidents

 

18-Wheeler trucks are more likely to be involved in fatal multiple-vehicle crashes than smaller passenger vehicles.  Many accidents with trucks are rear-end collisions or other wrecks that involve a significant element of carelessness on behalf of the driver or other avoidable causes such as:

 

Driver fatigue: Although there are laws surrounding how long a driver should be behind the wheel, oftentimes drivers do not obey the rules, leading to fatal accidents.

 

Drug or alcohol use: mixing any type of stimulant or depressant can effect someone’s driving and when that person is also operating heavy machinery it can be a deadly combination.

 

Speeding: speeding is unsafe for a motorist driving any type of vehicle and can become especially hazardous when driving a vehicle that weighs up to 80,000.

 

Jackknifing: in this type of accident the tractor-trailer becomes detached from the truck bed and stops at a 90-degree angle. The trailer can hit other vehicles, people, and cause collisions with other vehicles.

 

Distractions: unfortunately even boredom can be the root of fault for an accident with an 18-wheeler. When a driver is driving for hours they can overly rely on cell phones, radios and even television, which pulls the attention from where it should be, on the road.

 

Inadequate Training: Just like any other job, 18-wheeler truck drivers need adequate training in order to perform well. When 18-wheeler drivers aren’t trained, there can be fatal consequences.

 

Unsafe equipment or negligent maintenance: The weight of the cargo in a truck this large can speed up the wear and tear of the vehicle’s parts. A driver must be proactive about maintaining the vehicle and constantly assessing it’s maintenance needs. A lack of vigilant maintenance may lead to a collision.

 

Wheel Blowout: Just like any other vehicle an18-wheeler can have a blowout. The consequences can be dire when one or more of 18 wheels blow out unexpectedly on the highway.

 

Blind Spots: Most cars have a warning sign on the mirror stating, “objects in mirror may be closer than they appear.” Well imagine if there was a sign saying “if I can’t see it in my mirror it doesn’t exist.” Due to the length and width of the tractor-trailer there are often several feet where the driver cannot see anything, opening up the opportunity for an accident.

 

Improper loading: Just like when you load up your car to go on a road trip with your family, making sure that everything is loaded correctly so nothing slides forward and hits your daughter in the head, drivers of 18-wheelers have to make sure their cargo is loaded correctly. When an 18-wheeler is improperly loaded cargo can move around shifting the weight of the vehicle or worse, falling out of the trailer completely.

 

When assessing an 18-wheeler case our team considers the above factors that make 18-wheeler accident cases unique, such as driving logs that may indicate fatigue, the truck driver’s record, and potential violations of state and federal regulations.

 

Weight and size of an 18-wheeler

 

The size and weight of the trailer of an 18-wheeler is what makes accidents with these machines so dangerous. On average an empty tractor-trailer weighs about 30,000 pounds and full loads can average up to 45,000 pounds with loads sometimes as heavy as 80,000 pounds. Tractor-trailer combinations are typically 60-70 feet long and 8-9 feet wide.

 

Besides the obvious risks associated with a vehicle that is possibly 10 times heavier than the average car, the heavy cargo inside of the truck may shift during the route causing serious additional risks. An unsecure load can cause an accident because the imbalance in the load causes the truck to either flip or the driver otherwise loses control of the vehicle, typically during a turn or with the help of a gust of wind.

 

Who may be held liable?

 

Trucking accounts for 70% of the total tonnage of goods shipped in this country. With the lion’s share of the transportation of goods, these trucks often travel hundreds of miles before reaching its destination. Ultimately,  there are thousands of 18-wheelers on the road in the United States, driving to deliver and transfer goods from one place to another. These trucks are not only numerous, but also have to travel great lengths to deliver cargo.

This may be the most cost effective way for a company to transport its goods, but the news of over 4,000 fatalities a year due to 18-wheeler accidents is unnerving for a motorist sharing the road.

 

In Louisiana the number of 18-wheelers accidents can surpass the hundreds each year. When involved in this kind of accident it is best that you reach out to an attorney with experience in this type of litigation as soon as possible. One of the most difficult issues in handling this type of case is the issue of liability. Because of the number of individuals and companies involved there can be any number of groups held responsible for your losses including:

 

The owner of the truck or freight company: The owner of the freight company can be held liable for the action (or inaction) of its subordinates.

 

The driver’s employer: If a company employs the driver other than the company that owns the goods that company may also be held liable.

 

An owner’s parent company: If the company that owns the trucks is a subsidiary of a larger company, that larger company may be held responsible.

 

The truck’s manufacturer: When there is a defect in the truck or some mechanism associated with the truck that contributed to the accident, a truck’s manufacturer may be held liable.

 

The manufacturer of any truck part: If there is a defect in a part used on the truck that significantly contributed to the accident the manufacturer of that part can be held liable.

 

A maintenance company that worked on the truck: If a mechanic worked on part of the truck and did not fix what they were supposed to or broke something else in the process of fixing another part, and their failure contributed to your injury, the mechanic may also be held liable for your loss.

 

The driver/owner of another vehicle: If the driver or owner of another vehicle contributes to the accident or causes the accident with an 18-wheeler that driver may be held responsible.

 

The manufacturer of another vehicle: If there was a defect in the manufacturing of a vehicle that was not only involved in the accident but also contributed to the accident, the manufacturer of that vehicle may be held liable.

 

This is clearly an extensive list. But when it comes to 18-wheeler accidents the losses can be horrific leading to missing work and the inability to take care of family and responsibilities.  These costs can number in the hundreds of thousands and even millions, including additional parties that could be held liable in your suit will increase your chances of recovery.

 

All of these possible defendants can be overwhelming to a victim considering a lawsuit. Only an experienced 18-wheeler accident lawyer in Louisiana can determine the liable party or parties. Not only that, but often large companies found to be liable in an 18-wheeler accident, will try to pay out as small a settlement as possible. This offer may not be enough to keep some clients going after a major setback, which is why employing the Law Office of David Kervin, Jr. is a step in the right direction.

 

Louisiana law on 18-wheeler accidents

 

In Louisiana the law controlling 18-wheeler accidents is called negligence. If the actor’s conduct (in this case the driver) falls below the “standard of care” that a driver of an 18-wheeler should have, and that substandard conduct results in injury to another, then the driver may be held responsible for your loss.

 

Louisiana uses the duty/risk formulation of negligence, which consists of 4 elements that our team of lawyers will be tasked with proving. The four elements are cause-in-fact, duty, breach of duty, and injury. Below is a short explanation of each element, actual cases are more complicated, but this will give you an idea:

 

Cause-in-fact the defendant’s substandard conduct actually caused your injury. Cause-in-fact applies to a causal chain between the negligent act and the injury to the plaintiff (you). To determine the Cause-in-fact the court will examine if the actions of the driver were the but-for cause of your injury.

 

The duty element is satisfied when the defendant owed a duty of care to the plaintiff (the injured party), and did the duty extend to this injury, to this plaintiff, that occurred in this manner, from this risk, etc. This element is more or less complicated depending on the claim.

 

The plaintiff must also prove that there was a breach of the duty of care owed to the plaintiff.  Generally the court will ask if the defendant should be responsible for the injury that the plaintiff has suffered. If that answer is yes, then the court will look to determine if this injury was within the scope of the duty that the defendant owed the plaintiff and was that duty breached. Our attorneys will work hard to prove this element by examining the industry standards and other evidence.

 

The plaintiff must suffer some injury that can be compensated. The plaintiff must prove that actual damages exist using evidence. Our team will identify all negligent acts – looking for the untaken precaution (the defendant’s failure to _____) or the unsafe action (driving while drinking/texting).

 

When trying to identify if there are other parties responsible for your injury the court will examine if vicarious liability exists (Employer for employee liability). Employers are answerable for damage occurring while their employees are acting in the course and scope of their work. The employer will be liable for the negligent acts of his employee if:

 

Employment relationship – If there is an employment relationship between the employer and the employee, either payroll or borrowed employee (one who is not an employee is an independent contractor) then the employer could be responsible for the damages caused by the employee.

 

Control test – The court may ask could the employer have exercised control over how the work was done? Was there a very close economic connection between the employer’s actions and the work subject to very close control over physical conduct and the time it took to complete the work? If the answer to this question is yes, then an employment relationship exists and the employer may be held liable for your loss.

 

Borrowing employer liable for torts of borrowed employee – Sometimes an employee does not work full-time, he or she may be hired through a temp agency or some other type of service. In these situations the court will ask, did a “right of control” exist over the employee’s actions? The court will ask if there was an actual exercise of control by borrowing employer over the borrowed employee and other questions to define the relationship.

 

Independent contractor test – does the employer have right to control the actions of the contractor? First the court will examine if there was a contract between parties (in an 18-wheeler case that could be a contract between the driver and the owner of the goods). In order to determine this relationship the court will ask, does the contractor choose the means to accomplish the task (ex: transporting the goods)? The employer is not vicariously liable for the negligence of an independent contractor.

 

The Employer may be liable for the following even if committed by independent contractor: (1) inherently or intrinsically dangerous activities; (2) authorizing performance of work in a manner which is unsafe; (3) injuries resulting from ultra-hazardous activities by hiring out work to independent contractor.

 

Sample verdicts

 

The following are some possible verdicts in large truck or 18-wheeler cases. Keep in mind that no two cases are alike; these are verdicts from other cases. Our attorneys will work hard to try to get you the settlement you deserve.

 

$5,000,000 Settlement

A young medical professional was rear-ended by an 18 Wheeler in Baton Rouge. The investigating officer ignored signs that the defendant driver was impaired and the employer (also a defendant) failed to give the driver a Breathalyzer test after the accident, among other issues. The plaintiff’s injuries were serious enough to receive a diagnosis of “failed back syndrome.”   Allen v. Sikes, et al., No. 566,294, 19th JDC, 2010

 

$4,000 Settlement

The plaintiff was a passenger in a car struck by a truck while working, causing him to be injured. The driver of the truck failed a Breathalyzer test. Plaintiff was diagnosed with a lumbar sprain and strained ligaments of the hip girdle and was eventually diagnosed with a herniated disc. Aycock v. Jenkins Tile Co. 703 So.2d 117, 19th JDC, 1997
$85,000 Settlement

Man involved in a truck accident sustained injuries of a nose fracture, TMJ, minor eye irritation, post-concussion syndrome, chronic cervical pain, mild traumatic brain injury, reduced fine motor coordination and loss of spatial orientation.

Baltazar v. Wolinski 53 So.3d 591, 3rd Circuit, 2010
$194,000 Settlement

Truck driver sued for damages following a vehicle collision. The plaintiff was treated prior to the accident for a herniated disc, but testing following the accident revealed the presence an issue that required additional surgery.  The plaintiff suffered from Neck, shoulder and arm pain one year after surgery were reported to the doctor, but he could not have any further surgery to correct and he suffered a permanent impairment in his left arm and hand of 10-15%.

Basco v. Liberty Mutual Insurance Company 909 So.2d 660, 9th JDC, 2005

 

$175,000 Settlement

Woman sustained a neck injury following a semi-truck rear-ending her vehicle. Injury resulted in a prolonged period of treatment that culminated in cervical fusion surgery and permanent physical restrictions on her activities.

Bertrand v. Henry 815 So.2d 868, 16th JDC, 2001

 

For more sample verdicts visit legalclimate.com

Where do I go from here? Moving on after a loved one dies due to someone else’s negligence

By kervin,

Psychologists argue that the death of a loved one is probably one of the single most traumatizing things we as human beings can experience. All deaths as a result of accidents are a tragedy, losing a loved one due to another’s negligence can intensify the blow and leave you mentally and financially drained.

 

Oftentimes having to deal with medical expenses and burial expenses, while being forced to continue your life without your family member can leave you devastated. That’s what the attorney’s here at Kervin Law are ready to act as legal council and confidants during this difficult time.

 

Our attorneys understand your need to move forward with your life and we are here to help you. The attorneys at Kervin Law are here to support you in your time of need and offer you legal services that may help you financially in your time of need. There are two types of actions that we can file when you lose a loved one due to the negligence of another. The attorneys of Kervin Law can either file a wrongful death action or a survival action to help support you in your time of need.

 

History

One of the first recorded cases that shows the courts of Louisiana considering what we would know call wrongful death damages is seen in Hubgh v. New Orleans & Carrollton R.R., 6 La. Ann. 495, 496, reh’g denied, 6 La. Ann. 498 (1851).  This case is often seen to be the beginning of a long and confusing history of wrongful death claims, with the court initially refusing to recognize such a cause of action.  In 1884 the Louisiana Legislature recognized the right to wrongful death actions. It wasn’t until 1986 that what we now know as wrongful death and survival actions was officially codified in article 2315 of the Louisiana Code of Civil Procedure.

 

First: Is this a wrongful death case or a survival action?

 

A simple explanation of the difference between wrongful death and survival action:

 

  • A wrongful death action exists where the deceased person has the claim vicariously through his heirs — this means this claim covers pain and suffering, medical costs, lost wages, etc.
  • The survival action is the heir’s own personal damages for losing the loved one — mental anguish, grief, loss of financial support, etc.

 

The lawyers of Kervin Law will work to understand your needs and determine what action(s) should be filed according to the facts of your case. The attorneys at Kervin Law are here to access your claim and determine the fastest and most effective way to help your family.

 

Wrongful Death

 

Wrongful death law in Louisiana is oftentimes challenging and the procedure can be seen as counterintuitive.  The attorney’s at Kervin Law are here to act as guides and councilors to help you determine what is the best course of action for your case.

 

When do wrongful death actions arise?

In Louisiana wrongful death actions may arise out of a variety of scenarios including, but not limited to:

 

  • Defective Products
  • Offshore accidents
  • Assault/Battery
  • 18-wheeler accidents
  • Car/light Truck collisions
  • Construction Work Accident
  • Medical Malpractice
  • Prescription drug abuse
  • Nursing home abuse
  • Airplane crashes
  • Deficient security

 

The Law on wrongful death actions: who may recover damages

 

According to the text of the Louisiana Civil Code (Article 2315.2) wrongful death occurs  “ If a person dies due to the fault of another.” The text of the civil code specifically states who may bring a suit in the case of a wrongful death action. People who can recover from wrongful death are different from named beneficiaries on life insurance policies. In Louisiana there is a hierarchy listing who can recover under wrongful death and under what circumstances:

 

  • The first right of action goes to: the surviving spouse and child or children of the deceased, or either the spouse or the child or children.*
  • If there are no children the second right of action goes to: the surviving father and mother of the deceased, or either of them.
  • If there are no children and the parents have pre-deceased the victims: the surviving brothers and sisters of the deceased, or any of them.
  • Lastly, The surviving grandfathers and grandmothers of the deceased, or any of them.

 

Your claim must be filed one year from the death of the deceased to take advantage of a wrongful death action.  It is important that you contact the lawyers of Kervin Law as soon as possible in order to get your claim filed within this time period. The lawyers of Kervin Law are skilled in the area of wrongful death but your claim must be filed within the one year period.

 

*The words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

 

The nuts and bolts of a wrongful death claim

Wrongful death claims seek reimbursement for the loss of support (financial loss), affection, love, and companionship of the victim.  Sometimes you may even be able to recover the costs for medical bills and funeral expenses.

 

For your wrongful death claim to be successful our firm will help you develop two things:

  • Prove the elements of negligence exist for the actions of the responsible party (or parties)
  • Showing clear loss from the parties under the action.

 

The experienced attorneys of Kervin Law will prepare your case from start to finish by examining all evidence, possible sources of liability, and carefully collecting documentation of your loss.

 

Oftentimes the reason why a loved one dies is very clear. In other cases there are several possible explanations for death, and any one or multiple could have been the cause of your loss. It is important that if the deceased person’s physician recommends an autopsy to have one done. Always have an autopsy done when an accident is involved in the death of a loved one.

 

Damages from Wrongful Death

 

Damages for wrongful death actions may include measurable losses that are both economic and non-economic expenses including:

 

  • Lost wages
  • Pain and suffering
  • Burial expenses
  • The value of lost services within the household (ex: cost the person would have contributed to a child’s education)
  • Medical bills
  • Martial anguish and suffering

 

Sample Wrongful Death Verdicts

 

The monetary amount of damages received from wrongful death actions is varied but over the past decade the amount awarded for wrongful death damages has increased tremendously. Because the Louisiana Code of Civil Procedure does not refer to a specific amount of damages allotted the court reads that as there is no specific limit to the amount of damages that may be awarded. The following are some possible verdicts wrongful death cases. Keep in mind that no two cases are alike; these are verdicts from other cases. Our attorneys will work hard to try to get you the settlement you deserve.

 

$2,500,000

A man was exposed to asbestos and died five years after he was diagnosed with asbestos poisoning. His wife and children were awarded general damages as a result of their suit. Abram v. EPEC Oil Co., 936 So.2d 209.

 

$225,000

A man was involved in a horrific car accident and sustained injuries that lead to eventual multiple organ failure. The man also contracted hepatitis C and eventually died 6 years later. His son and daughter received wrongful death damages. Begnaud v. Department of Transp. & Dev., 679 So.2d 113.

 

$530,000

During a high school graduation party a man was shot and killed.  The wife and children of the victim recovered damages for mental anguish in regard to death, wrongful death, and survival action. Brown v. Ascension Parish, 887 So.2d 39.

 

$500,000

Family files wrongful death and medical malpractice suit after son dies of meningitis. Brown v. Eppinette, 833 So.2d 1268.

 

$425,000

A sheriff’s deputy in the parish went on a crime spree and the plaintiff’s wife was one of the victims. Louviere v. Louviere, 839 So.2d 57, 2001‑0089 La.App. 1 Cir. 6/5/02, (La.App. 1 Cir. 2002).

 

$400,000

The victim was an employee of a railroad company killed in the course of his duties. On appeal the court reduced the initial award of $500,000 per child to $400,000 per child. Dunn v. Consolidated Rail Corp., 890 F.Supp.1262 (M. D. La. 1995).

 

$1,000,000

Wife loses husband after 45 years of marriage.  Roberts v. Owens-Corning Fiberglas Corp, 2004 WL 691576, 2003-0248 La.App. 1 Cir. 4/2/04, (La.App. 1 Cir. 2004).

 

$900,000

Man killed after an explosion on the job. Wife received wrongful death damages.  Bergeron v. Blake Drilling & Workover Company, Inc., 599 So.2d 827 (La.App. 1 Cir.1992).

 

For more sample verdicts visit legalclimate.com

 

Survival Action

 

When do survival actions arise?

A survival action allows for a specific class of people to recover for the damages the victim sustained. In Louisiana, survival actions include the deceased’s right to recover damages for pain and suffering, if pain and suffering can be proved, mental anguish, grief related to their personal loss that they would have recovered had they lived. Also, there is a one year prescriptive period to recover damages for injuries sustained by a deceased person prior to their death.

 

  • Recover damages for pain and suffering
  • Medical bills

 

The law on survival actions: who may recover

According to the Louisiana Code of Civil Procedure (Article 2315.1) A survival action exists if a person who has been injured by an offense or dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of the following people:

 

  • The first right of action goes to: the surviving spouse and child or children of the deceased, or either the spouse or the child or children.*
  • If there are no children the second right of action goes to: the surviving father and mother of the deceased, or either of them.
  • If there are no children and the parents have pre-deceased the victims: the surviving brothers and sisters of the deceased, or any of them.
  • Lastly, The surviving grandfathers and grandmothers of the deceased, or any of them.

 

In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative when there is no other person.

 

  1. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

 

*As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

 

Damages from survival actions

Damages from survival actions are varied depending on all factors involved.

 

$83,000

During a high school graduation party a man was shot and killed.  The family was awarded survival damages in addition to wrongful death. Brown v. Ascension Parish, 887 So.2d 39

 

$20,000

Parents of a child saw the child get killed after being hit by a car while crossing the street to meet the school bus.  Craighead v. Preferred Risk Mutual Insurance Co. 769 So.2d 112

 

$75,000

Widow brought suit on behalf of her children when attorney allowed husband’s wrongful death claim to prescribe. Guidry v. Coregis Insurance Co., 896 So.2d 164

 

$150,000

A woman was hit in a head on collision by another car driven by an employee of the Louisiana State University Health Sciences Center. The Women’s husband was killed in the collision. Illes v. Ogden, 2010 So.2d.

 

$500,000

Man was exposed to asbestos and sustained lung cancer as a result. Palermo v. Port of New Orleans, 933 So.2d 168

 

$250,000

Collision between a railroad train and a car. The award was given even though there was no expert testimony involved, a witness testified to the victim’s pain. Long v. State, through the Dept. of Trans. and Dev.,862 So.2d 149, 37,422 La. App. 2 Cir. 11/24/03, (La. App. 2 Cir.2003);

 

$400,000

A man died after being shot by robbers, he lived for 9 hours. Pinsonneault v. Merchants & Farmers Bank & Trust , Co., 738 So.2d 172, 99‑12 La. App. 3 Cir. 7/21/99, (La. App. 3 Cir. 1999) (reversed on other grounds).

 

For more sample verdicts visit legalclimate.com

Mesothelioma

By kervin,

Mesothelioma is a type of cancer that often has no possible treatment, taking a financial, physical, and emotional toll on you and your family. If you or a family member has been diagnosed with this incurable disease you will be facing a hard road, but you do not have to travel that road alone.  The experienced attorney’s of Kervin Law have everything you need to understand this disease and have compiled all of the necessary information below. Please don’t hesitate to contact our office at (NUMBER HERE) for more information. We are standing by and ready to help.

 

What is Mesothelioma?

There is a membrane in your body called the mesothelium. When this protective membrane is attacked by cancer, that cancer is called Mesothelioma. Because of its rare nature, Mesothelioma has been closely linked to exposure to asbestos.

Mesothelioma comes in three types, each of which is named after the part of the body affected:

Peritoneal mesothelioma – exists in the abdominal area and surrounding muscles.

Pericardial mesothelioma – the most difficult to treat, happens in the heart and erodes the lining of the heart.

Pleural mesothelioma – occurs in the lining of the lung. Patients with this type have the best rate of survival.

 

What Causes Mesothelioma?

Asbestos exposure is the ONLY known cause of mesothelioma cancer. Historically, asbestos was used in many different types of insulation and protective gear.

The tiny fibers that make up asbestos are hazardous if ingested or inhaled. If inhaled, these fibers can become the single cause of mesothelioma.

The type of work the person performs also has an important impact on the seriousness of their disease. People in the military, factory workers, shipbuilders, and people who work in different types of manufacturing are at a high risk of developing mesothelioma.

The families of the above-mentioned workers can also be in danger of developing mesothelioma. Being exposed to asbestos secondhand can be just as dangerous and can lead to all types of asbestos related cancers including types of lung cancers.

Many people are unsure where exactly they were exposed to asbestos. If you are having trouble determining where ground zero is for you, contact the attorney’s of Kervin Law for help.

It can take 20 to 50 years to start showing symptoms of mesothelioma. These symptoms are hard to pinpoint and you cannot file a legal claim without a diagnosis. In order to receive a proper diagnosis you must inform your doctor of your work history and military history.  Doctors need to know all of your history in order to give you a proper diagnosis. If you are unsure about whether or not you have been exposed to dangerous levels of asbestos contact the experienced lawyers of Kervin Law for help.

 

Prognosis

When anyone is diagnosed with a serious illness there are many questions. When someone is diagnosed with mesothelioma the first question is usually “Is there treatment?” and “what are my chances for recovery?” The answers to these questions are complicated and sometimes the doctors are unsure about the answers. In order to get the best answer from your doctor you should provide him/her with a detailed work history.

Of course the point you seek treatment affects your prognosis. The earlier you receive treatment, the better your chances for recovery. Oftentimes that is easier said than done. The symptoms of mesothelioma are similar to the symptoms of the common cold and many patients are incorrectly diagnosed. Many don’t receive a diagnosis until more distinct symptoms arise, which is often very late in the diagnosis.

 

History of Asbestos

Asbestos is a naturally occurring mineral that has been used to build structures for many years. Asbestos has been used in everything from building homes to ships.  Asbestos was first called a miracle mineral because its ability to withstand chemical, heat, and electrical damage was unmatched.

 

Asbestos has been linked to lung cancer for years but physicians didn’t know until the early 1900s just how dangerous asbestos was. Physicians figured out that inhaling the fibers, an unavoidable consequence of working with the material, was extremely hazardous.

 

There were manufacturers who knew the truth about asbestos but wanted to hide it from the employees and other companies. These manufacturers wanted to hid this information because asbestos was inexpensive and they didn’t want to spend more money. In 1977 these documents were exposed, and these companies were unable to continue hiding the truth from their employees and the public.

 

In 2012 a bill was introduced into the Louisiana Legislature that would severely affect victims ability to recover from damage caused by asbestos. Although the bill passed the State House it was defeated in Senate Committee. The United States Government Accountability Office reviewed the trust system in 2011 and found that there were no instances of fraud.

 

Countries around the world have banned the use of asbestos but it is still legal to use in the US. Many people have filed claims, and some have been paid, but there are still more who are waiting for relief. If you contact the lawyers at Kervin Law, we are here to help make sure that your claim is properly filed and that we help you see it through to the end.

 

Asbestos Legislation

 

  • Asbestos has had a significant role in manufacturing for decades. Once the connection between asbestos and cancer was made, manufacturers and business owners still did not want to acknowledge the issue. They would rather put their profits before their employees and their families.
  • Johns-Manville was the largest producer of asbestos related products in the late 1970s. A lawsuit was filed against the company in 1977 claiming that it had hid the danger of asbestos from their employees and the wider public. The court determined that their had been a purposeful and “conscious effort” to hide the danger in order to stop legal claims. In 1979, they paid one million dollars to almost 300 employees struggling with asbestos related cancer. That lawsuit opened the door for future claims, and the company eventually had to declare bankruptcy.

 

  • The 1970s was a decade of breakthroughs in asbestos related litigation. The U.S. passed the clean air act in 1970, forcing many companies to reevaluate their policies. During that time the Environmental Protection Agency also started to regulate air pollution, including asbestos.

 

  • At that time, U.S. bankruptcy laws allowed companies to create a trust to pay victims while they continued to operate. The trusts were established for victims who could prove that they were exposed to asbestos because of their work with the particular company. An estimated $30 Billion has been paid out and set aside for victims of asbestos related cancers and health issues. This money can be used to cover a variety of things including: lost wages, medical bills, and living expenses.

 

The fight to compensate victims and protect future workers is far from over and there are thousands of pending lawsuits across the country.

 

How Mesothelioma Lawsuits Work

Initially, an attorney from Kervin Law will sit down with you to discuss your potential case. If your case seems viable, the attorney will file the necessary paperwork to open the discovery period. The discovery period allows our team, and the defendant’s team time to prepare for trial. Oftentimes a settlement is reached before we are able to go to trial. If not settlement can be reached, then they case will go to trial and we will receive a verdict from the jury.

 

How much compensation can I receive through a lawsuit?

Recovery results vary per client.  Some juries return verdicts in the millions where other claims settle for little to nothing. The amount you receive depends on a variety of factors including whether your case gets a settlement or a jury verdict. To get a better idea of the compensation you can expect, please contact one of our lawyers.

 

If the company you are claiming damage against has a settlement trust established, that may affect the amount of money received. Also, if your attorney files a lawsuit and quickly settles your claim that may reduce the amount you would receive as opposed to the amount you would receive if your case were presented to a jury. The Attorney’s at Kervin Law will work to make sure you receive all of the compensation you deserve.

 

How do I pay my lawyer?

Mesothelioma cases are handled on a contingency fee basis. This means that the your attorney doesn’t charge you anything upfront, but takes their fee out of the amount that you are awarded by the court or the trust.  The fee amount depends on if there is a cap on fees awarded by the trust, and what type of costs the lawyer has assumed on the front end.

 

When should I file my mesothelioma lawsuit?

Louisiana law imposes strict standards and limitations on how long you can wait to file a particular lawsuit. You should file your claim as a soon as you are aware. Our team will work to make sure that all time limitations have been adhered to.

 

What is the timeline for a mesothelioma lawsuit?

These types of lawsuits take a long time, especially if the court you are filing in has a heavy caseload or if your case requires extensive investigation. We will work to make sure that your case is handled as quickly as possible we there are no guarantees.

 

Who can I file a lawsuit on behalf of?

You can file a lawsuit on behalf of yourself or a deceased family member. Filing a lawsuit on behalf of a deceased family member is called a wrongful death claim (link to that article?). The amount of time you have to file this kind of lawsuit is restricted so please contact our team as soon as possible.

 

Who can I name as a defendant?

It is important that you file your case against the right person or company. Through investigation our attorneys can determine who is the right person to file your claim against. We can also help you determine when you were exposed to asbestos.

 

Will my lawsuit be filed in Louisiana?

We will file your claim in the state where you have the best chance of recovery. If the company you worked for has its headquarters in a state where we think you have a better chance of recovery then we will file your suit there. This decision is made on a case-by-case basis.

 

Is there travel involved in my claim?

In most cases you would not need to travel. Our attorneys are happy to meet you where you leave to help you handle your claim. If travel is necessary we will try to accommodate you.

 

Is it necessary for me to testify in court?

In every case our team prepares as if we are going to trial. With that being said, many claims are settled before trial commences, or even after it’s started. If we have to go to trial our team of attorneys will make sure that you are as prepared as we are for whatever may come.

 

Will my case be part of a class action lawsuit?

No. Class action lawsuits are for claims where everyone is affected in the same way. In a mesothelioma case each victim is affected differently. Our firm believes that mesothelioma cases are best handled separately.

 

Settlement Trust

 

By the early 2000s almost 730,000 people sought relief against companies based on asbestos related claims. Many of the companies were forced into bankruptcy. A consequence of their bankruptcy was the establishment of settlement trusts.

 

Many companies were not prepared to deal with the financial strain that would come with satisfying all of the settlements instituted my employees.  In order to get out of bankruptcy companies had to reorganize and create trusts for victims, employees, and their families affected by asbestos.

 

The trust operates to help the company avoid lawsuits by only allowing claimants to go through the trustee to receive their funds. Claimants may not file a lawsuit if their company has a trust set up to handle claims. Claimants must file something with the trustee in order to receive compensation. Johns Manville set up the first trust ever created in 1988. Since that time over $20 billion has been put into trusts to benefit asbestos victims.

 

The following companies have established some of the largest trusts:

  • USG Corp. $4 billion
  • R. Grace & Co. $3 billion
  • Johns Manville $2.5 billion
  • Armstrong World Industries $2.1 billion
  • Owen Corning Fireboard $1.6 billion
  • Kaiser Aluminum $1.2 billion

 

 

New Louisiana Licensing Laws for 2015

By kervin,

One of the changes we will be seeing in the upcoming year has do with new Louisiana licensing laws and how they will be affecting several industries. Among the faster growing industries in Louisiana is the sales and installation of solar energy equipment. It should come as no surprise to anyone in the construction trade that with this growth in the installation of these new green additions to buildings, the state wants to keep a tighter rein on just who is being allowed to obtain a license. To help control the proliferation of companies and ensure consumers that only qualified contractors can be licensed to sell, lease or install solar energy equipment, new licensing regulations will be going into effect beginning in 2015.

Louisiana Small Business Licensing

With so many small businesses getting into the solar energy business it is no surprise to see that the state has decided the time has come to introduce some regulations. For any small business that is considering entering this growing industry, getting properly licensed and following all the regulations regarding the solar energy business is highly recommended.

Louisiana licensing laws require many small business owners to obtain licensing and even in some circumstances surety bonds as part of the cost of doing business. It is important for small construction contractors who have begun to offer solar energy installation as part of their business to understand that this new licensing requirement could affect their business if they fail to comply.

Louisiana Licensing Laws and Compliance

While it is understandable that many small businesses that have in the past been involved in some way with solar energy installation may feel that suddenly being required to have a license is something they can ignore, we urge you to reconsider. Injuries on the job, lawsuits from unhappy customers and new regulations that make installation difficult can ruin a contractor’s reputation with just one problem. Don’t get caught without the proper licensing if your business is now in or is considering getting into the business of selling, leasing or installing solar energy equipment in Louisiana. Not sure if your occupation requires additional legal structure such as licenses or contracts? Contact the Law Offices of David D. Kervin today find out the full extent of what your business needs to stay legal in the coming year.

Understanding New Orleans Personal Injury Claims Requirements

By kervin,

It happens to the best of us. You find yourself involved in some type of personal injury claim through no fault of your own. It’s unfamiliar territory to most of us, and it should be. Even in the grand city of New Orleans personal injury claims can take up a lot of time and energy. But worst of all is the feeling of dread because you aren’t sure what to expect. You will need a good New Orleans personal injury attorney since they will have expertise to get you through this and have the best chance of getting you a good settlement. Here are a few basics everyone should get acquainted with if they find themselves facing a personal injury claim in New Orleans or anywhere for that matter.

Are There Filing Limits?

Of course, this depends on the type of personal injury claim you have and where you are filing it. Different states have different limitations. If, for instance, you were to file a claim here in Louisiana for an auto accident, you would have up to one full year to file. If you have concerns about whether you have sufficient time, it is always best to talk first to a personal injury lawyer about it.

Finding Fault – Whose and How Much?

The other big question is often how the individual state defines fault in the case of an accident. No accident is 100% one party’s fault. In Louisiana there is a sliding scale of fault called comparative fault legislation. This means that an individual’s claim is negotiated according to how much of the accident was their fault. One way to consider this is if you were in an accident with a total liability of $20,000 but were found to be only 10% at fault, then your claim for damages would be $18,000. This is why fault can be such a big question in New Orleans personal injury claims.

Is There a Cap on Damages?

Not all cases are the same and for many types of personal injury claims the state of Louisiana will put a cap on the amount of damages that can be claimed. It will vary with the type of claim and other circumstances, so be sure to bring this up early in your conversation with any New Orleans personal injury claims specialist. A prime example is the $500,000 cap Louisiana has on medical malpractice cases. When in doubt, ask.

Here in New Orleans personal injury claims can be complicated. Don’t make the mistake of representing yourself when it comes to getting justice for your personal injury claim. We have spent years in research, presenting cases and understanding the implementation of the law. Contact David D. Kervin Law Offices today to get your free consultation.

Louisiana Medical Malpractice Attorney – Understanding Health Law

By kervin,

In the state of Louisiana medical malpractice attorney cases can vary. They can often include those that protect individuals from large institutions such as hospitals or corporations when they overreach what they can legally protect or have control over. They can stand as protection through a government agency when a corporation or organization tries to shield an employee who has broken the law, especially when it pertains to health law. And sometimes they can simply clarify the rules of responsibility even if they can’t, sadly, change the outcome of the situation. Here are three recent examples from the local files that had Louisiana medical malpractice attorney offices checking their knowledge of their own health law books.

A Question of Supervision

When a 12-year old in Louisiana recently decided to host a birthday party at his home, he probably wasn’t considering whether his friends were swimmers or not. But his parents should have. His father could swim, but he wasn’t able to be home on the day of the party. His wife would be supervising the kids, but she and her eldest daughter both were not swimmers. This oversight cost a child his life, when he wandered into the deep end of the pool and drowned. The kids in the pool called for help, but by the time they could find an adult who could swim, and rescue the boy, it was too late.

The judge ruled that even though the father knew his two other kids could swim and would be at the party, he didn’t take the time to make them responsible specifically for the welfare of the kids at the party. He knew his wife couldn’t swim, he knew he would not be home to help. Because he neglected to make arrangements to have someone who was a swimmer and responsible in charge of keeping a group of noisy 12-year-old kids near a pool safe, he was held responsible.

Walgreen and HIPPA

This second case involved a more direct health law violation. It is the type of case any Louisiana medical malpractice attorney should be aware of, for obvious reasons. An employee of Walgreen who worked in the pharmacy used their ability to access HIPPA’s private information for their own personal use. The employee used information about a client’s prescriptions to pressure that client into dropping their attempts to continue to get child support for the client’s child from the employee’s husband. When the client complained to Walgreen, the result was a written reprimand and the employee was required to take a course online regarding the use of HIPPA. Not satisfied, the client took Walgreen to court.

The case went before a jury and that jury found both the company and the employee guilty of negligence by way of professional malpractice as well as being guilty of invasion of privacy. They decided that Walgreens was indeed responsible for its employee’s actions as well. While HIPPA may not create a private right of action, it does regulate who individually has access. It is also capable of providing criminal penalties for improper actions or disclosures. Walgreens and the employee were found liable for $1.4million in negligence.

Healthcare Billing Protection

Sometimes the law needs to step in to protect individuals who are at the mercy of a large organization such as a hospital. This happened recently when a Louisiana motorist was in an accident. When they received treatment at a nearby medical facility, the organization refused to file a claim with the person’s healthcare company. Instead, they contacted that person’s personal injury attorney and filed a medical lien through them. This despite the hospital having a relationship with that healthcare company and a regular schedule of agreed upon payment amounts for procedures that had been done on the patient’s behalf. The patient filed a putative class action suit for conduct that was specifically prohibited.

Louisiana Medical Malpractice Attorney

As you can see from these three cases, it is important to step up and protect your rights. Whether you are looking at medical malpractice, professional malpractice or filing against an organization that has conducted actions outside of their authority, we can help. From simple car accidents that have gotten out of hand to professional disputes that need mediation, we have the background and knowledge to lend a hand and get you the justice you deserve. Don’t let yourself become a victim; get the Louisiana medical malpractice attorney help you need today.

New Orleans Personal Injury Claims and BP Oil

By kervin,

The latest news on probably the most important New Orleans personal injury claims cases the past few years is of course concerning BP Oil. News last week in the settlement case found it to be virtually without error. Even with this decision it looked like BP Oil might have another card up their sleeve with their petition to review the settlement cases one again. That request was denied this week by the Supreme Court. Could BP Oil finally be out of moves?

A Case of Proving Harm

At the heart of the current petition is the decision that harm must not be proven for the settlement case to move forward. This has always been at the center of the dispute and yet the settlement terms were agreed upon prior to this case. With the latest hearing at the Supreme Court level in support of the lower court’s decision, it looks like this part of the outlining agreement that includes many New Orleans personal injury claims will move forward.

Time to Move On

For many this was the final wall to hurdle that might have been preventing finalizing the settlement with BP Oil. The company’s contention that settlement on these grounds would discourage future companies from making large early settlements in future New Orleans personal injury claims was not even given a nod. As David Logan, law professor with Roger Williams University has said, “The basis for the position they have taken for a couple of years now is no longer a valid position legally. It’s time for them to move on.” Logan, a long time expert on these types of cases does not think BP will continue to push for any further challenges.

New Orleans Personal Injury Claims Move Forward

If this is indeed true, and BP Oil is finally ready to end their constant challenges, businesses in New Orleans may heave a sigh of relief. Although it is true that the New Orleans personal injury claims along with business damage claims have risen in amount since the beginning – an end may be near. With this final judgment the language of the settlement has become binding, including the decision by BP Oil lawyers to waive the company’s right to demand proof of harm. It remains to be seen if accounting guidelines will prove the next stumbling block or not.

New Orleans Personal Injury Claims Representation

If you are among the many small businesses and individuals who have damages to claim against BP Oil, you can submit your claim through our offices. We can assist you in submitting your claim. Make sure that you obtain the full value of your damages or losses by submitting a claim today. Contact our offices directly today to make sure your claim is handled properly.

BP Oil Spill Litigation Update: Audits and Worker Claims

By kervin,

New Orleans businesses that have been waiting patiently, or not, for information about the BP Oil Spill litigation finally might have some good news. Unfortunately for anyone who has filed for personal injury related to the BP oil spill litigation, not all the news is favorable. While these updates almost always seems to be a mixed bag when it comes this catastrophe, to have both updates on the oil spill happen within a week of each other almost feels incredulous. Here are the two latest updates on BP’s Deep Horizon litigation.

BP Oil Spill Litigation Claims Exoneration

Many of the New Orleans and surrounding area small businesses have claims against BP Oil. Those claims were put on hold when BP questioned the integrity of the claim administrator Patrick Juneau. A third party audit was called to review all claims in the anticipation by BP Oil that errors would be found in their favor. That was not quite the end result of the audit.

The third party audit of BP oil litigation claims administered by Patrick Juneau was found to be well designed, appropriate and correctly processed 99.5% of the time. This means that the claimed $14 billion in damages can move forward. That is good news indeed for anyone who has filed.

Cleanup Workers Will Need to Sue

Unfortunately not all the news was as good as the audit news. A federal judge has ruled that those cleanup workers who have sustained personal injury will need to sue BP Oil in order to receive damages. This will mean a yet longer delay in seeing these settlements handled as lawsuits get under way. It had been hoped that these workers, technically working for BP Oil, could have these personal injury damages handled for automatically as workers compensation. This ruling changes this and makes filing a lawsuit a requirement for any reimbursement for personal injury in this situation.

Exposure related injuries diagnosed after the April 2012 cutoff must now sue for compensation. Although Judge Barbier was reluctant to do so, he agreed with BP Oil that such injuries must now be treated as latent injuries in the same category as cancer. This will slow many of these types of BP Oil spill litigation claims and make some almost impossible to prove.

Experienced Personal Injury Lawyer

If the current changes are going to affect you in any way, legal representation will be an important first step. The Law Offices of David D. Kervin Jr. have been involved in a number of personal injury cases involving environmental negligence. This includes this long standing battle in the BP Oil spill litigation. Talk to us today and let us know your situation. We are here to help. Contact our officesand set up a free consultation.

Does BP Court Decision Change Liability in Louisiana?

By kervin,

he recent U.S court hearing has resulted in a BP court decision that may up the ante for any extraction industry when it comes to liability in Louisiana, not simply the oil industry itself. What this may mean for any liability cases when small business in Louisiana is impacted by these businesses may be up for grabs, but it certainly will not hurt their cases. That, at least, is how some liability lawyers in Louisiana are looking at the end result of this landmark case.

Gross Negligence is Key

At the center of the case is U.S. District Judge Carl Barbier’s finding that BP Oil was guilty of “gross negligence”, even before the explosion that devastated the area. With 11 workers killed and billions of barrels of oil spewed into the gulf for the next three months, the damages are bound to be huge. Adding the designation of gross negligence to the already damaging case simply means that the end penalty could become record breaking. That is bound to set precedence or two alone.

Looking at the Definition of Risk

One of the key findings to come out of this case is the way that risk may become defined. If the case ends up defining standards for how much risk is too much, it could have a big impact on what any lawyer in Louisiana will consider in a liability case that involves any extraction or dangerous practices. Jessica Owley, a SUNY Buffalo Law School environmental law expert has stated,

“Other regulated industries are also going to be looking at what are the standards that courts are going to impose on their actions.”

The amount of impact that this case has remains to be seen. But whatever the consequences, and this case is by no means over, the BP court decision we have seen so far will affect how anyone looks at liability law in Louisiana and in fact anywhere in the U.S. for decades to come. The message is certainly clear to anyone in the oil industry who is listening. At this point that probably includes everyone, plus the businesses in New Orleans who have suffered the ill effects of the catastrophe.

A Thanksgiving Tradition in New Orleans

By kervin,

If you are like our office, Thanksgiving is a time for getting together with family. We are always grateful that we have family and the ability to have a traditional New Orleans Thanksgiving. But I know that not everyone has either the means or the family nearby. Luckily, there are several events that are a New Orleans tradition at Thanksgiving. These are perfect as celebrations that include everyone, even those who are on their own.

Sherriff’s Thanksgiving Dinner Celebration

Nothing says New Orleans Thanksgiving quite like this celebration, now in its 40th year. Once again the festivities begin at 10 A.M. and will last all the way until dinner and music ends at 1 P.M. This year we will be serenaded by two Grammy Award winning artists: Irma Thomas and Irvin Mayfield, along with several local artists. Of course, the food is what this celebration is all about and you can bet it will be mouth-watering and plentiful. If community is what you want to celebrate this Thanksgiving, why not do it by being a part of a New Orleans Thanksgiving tradition.

The Classic Thanksgiving Parade

Who doesn’t love a parade? This icon of turkey day starts at the Superdome and winds its way to the French Market for the perfect ending to the day. You will see marching bands for both of the rival teams that will be playing at the Bayou Classic Championship game later and have plenty of excuse to yell your head off in the process. Great for working off all that turkey you had earlier at the Sheriff’s amazing banquet.

Wishing You a Wonderful New Orleans Thanksgiving

So from our family to yours – we wish everyone a wonderful Thanksgiving and hope it is filled with the laughter of family and the joy of community. Happy Thanksgiving to everyone.