Diminution of Value or Loss of Use?

While the terms of "diminution of value" and "loss of use" are often used together, they should not be used interchangeably.

Diminution of value refers to the loss of value to an automobile because it was involved in an accident. The Romco, Inc. v. Broussard, 528 So.2d 231 (La. 1988) court found that "where an award of cost of repair is the measure of damages in a case involving damages to an automobile, additional damages may be recovered for diminution of value by virtue of the vehicle having been involved in an accident, provided proof of such diminished value be made." The term "depreciation" can also be applied in such situations.

The Romco, Inc. court went on to say that "where the measure of damages is the cost of repairs, damages for depreciation are also recoverable where there is sufficient evidence presented as to the amount the vehicle decreased in value solely due to being involved in a collision."

Damages for loss of use are measured by the rental cost of a substitute vehicle. Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La. 1977). In Romco, Inc. the Louisiana Supreme Court held that the damages for loss of use are restricted to that period of time in which the owner becomes aware of the situation and could secure a replacement or have the vehicle repaired

Spoliation: When to Plead (or Oppose) the Cause of Action in Louisiana Federal Courts

Law Regarding Pleading Spoliation

The theory of spoliation of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Hooker v. Super Products Corp., 751 So.2d 889 (La. App. 5 Cir. 6/30/99). The tort of spoliation has its roots in the evidentiary doctrine of "adverse presumption" which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Randolph v. General Motors Corp., 646 So.2d (La App. 1 Cir. 11/10/94).

The Louisiana Western District Court has held that since spoliation is based on the intentional destruction of evidence, it stands to reason that it is an intentional tort. As such, it must be specifically pled in litigation. Therefore, in order for a plaintiff to recover damages for a spoliation claim, the Plaintiff must articulate facts (or evidence of facts) in the pleading which allege spoliation.

In Matter of Southmark, Corp. The U.S. Fifth Circuit Court of Appeals held that even though Rule 15 of the Federal Rules of Civil Procedure "evinces a bias in favor of granting a leave to amend, it is not automatic.Matter of Southmark, Corp., 88 Fed. 3d (C.A. 5 Tex 1996). In deciding whether to grant such leave, the court may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. Id.

In Southmark, the Court denied a motion for leave to amend, stating that "liberality in pleading does not bestow on a litigant the privilege of neglecting her case for a long period of time." Id. The Court concluded that it may consider an "unexplained delay" following an original complaint, and whether the facts underlying the amended complaint were known to the party when the original complaint was filed. Id. In Southmark, the Court reasoned that the denial of Plaintiff’s motion for leave to amend was proper because it had been 13 months since the filing of the original complaint and 11 months since the filing of the supplemental complaint, and Plaintiff could provide no valid reason for the complaint. Moreover, the facts which Plaintiff sought to allege in her amended complaint were known to Plaintiff at the time she filed her original complaint.

If you are uncertain as to whether as to whether Plaintiff knew evidence had been destroyed when she filed her original complaint, if several months have elaped since the filing of the original complaint and several more months since the filing of a supplemental complaint, with no mentionof spoliation issue in that time period,  I believe you  can make a valid argument that any motion for leave to amend filed at this point should be denied by the Court.

　

　

　

　

Fibromyalgia is STILL Bunk Based on Junk Science!

Overview

Fibromyalgia is a syndrome that consists of a person having long-term, body-wide pain and tenderness in the joints, muscles, tendons, and other soft tissues. The condition is associated with fatigue, sleep problems, headaches, depression, and anxiety.

Symptoms include pain in the tender points found in the soft tissue on the back of the neck, shoulders, chest, lower back, hips, shins, elbows, and knees. The pain may feel like a deep ache or a shooting, burning pain. Body aches or stiffness upon waking. Pain may worsen with activity, cold or damp weather, anxiety and stress. Other symptoms include IBS, memory and concentration problems, numbness and tingling in hand and feet, palpitations, reduced ability to exercise, tension or migraine headaches.

　

 Causes

The cause of Fibromyalgia is unknown. Possible causes include: physical or emotional trauma, abnormal pain response, sleep disturbances, infections (such as a virus). Other possible causes include low levels of serotonin that results in lowered pain thresholds or increased sensitivity to pain and genetic mutations.

Fibromyalgia is most often seen in women between the ages of 20 and 50. A person may be more likely to develop the condition if a relative has it.

　

Signs and Tests

In 1990, the American College of Rheumatology established two criteria for the diagnosis of fibromyalgia:

Nuts & Bolts of Computer Generated Evidence Admissibility

FORMS OF COMPUTER GENERATED EVIDENCE (CGE)

The admissibility of the evidence will reflect the type of evidence it is: (1) demonstrative evidence or (2) substantive or real evidence.

The two main forms of computer generated evidence regarding accident reconstruction are computer generated animations and computer generated simulations.

Animations are pure demonstrative trial aids. They are computer generated drawings assembled frame by frame that, when viewed sequentially, produce the image of motion. Their reliability is completely dependent upon the expert’s testimony and credibility. Ie.- illustrate factual findings and conclusions of the expert, illustrate factual findings. See Constans v. Choctaw Transport, Inc., 97-0863 (La.App. 4 Cir. 12/23/97),712 So.2d 885.

Simulations, on the other hand, are substantive evidence. They add new facts to the case and have probative value in themselves. Whereas animations only illustrate data, computer simulations are based upon mathematical models that generally involve the input and manipulation of data. In computer simulation, the computer essentially becomes a witness, by not only illustrating the evidence but also presenting it. See e.g. Pino v. Gauthier, 633 So.2d 638 (La.App. 1 Cir. 12/29/93)

The admissibility rules for CGE is different depending upon whether the evidence is an animation or a simulation. Basically, simulations are subject to the more strenuous Daubert rules of admissibility for scientific evidence.

Although an animation is more likely to be admitted as evidence, since it is only demonstrative, a simulation is more likely to be permitted for the jury to view during deliberation because of its independent probative value.

Also, purely demonstrative evidence may not be permitted in opening/closing statements.

VIDEO EVIDENCE GENERALLY

The determination of whether motion pictures or videotapes are admissible is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347; Lafleur v. John Deere Co., 491 So.2d 624, 632 (La.1986).

The trial court must consider: (1) whether the videotape accurately depicts what it purports to represent, (2) whether it tends to establish a fact of the proponent's case, and (3) whether it will aid the jury's understanding.

Against those factors, the trial court must consider whether the videotape will unfairly prejudice or mislead the jury, confuse the issues, or cause undue delay. The trial court may exclude the evidence if the factors favoring admission are substantially outweighed by the factors against admission. Louisiana Code of Evidence arts. 401 - 403; U.S.F. & G. v. Hi-Tower Concrete Pumping, 574 So.2d 424, 438 (La.App. 2nd Cir.1991).

If the CGE is actually a program that provides the reconstruction by inserting figures and variables for the computer to perform mathematical evaluations, then it will also have to pass the reliability and trustworthiness standards of Daubert.

The trial court applies several factors to determine whether the reasoning and methodology underlying the simulation is scientifically valid and can properly be applied to the facts at issue.

These factors include (1) whether the expert's theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique's known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community.

When evaluating the admissibility of the simulation: