David Vitter likely smiles as Louisiana’s trial-lawyer cabal model collapses under its own weight.

Former U. S. Senator and 2015 Louisiana Gubernatorial candidate David Vitter.

In our first installment of the tort reform measure passed by the Louisiana Legislature in the most-recent special session (which focused on collateral source), we referenced that, in installment two, we’d “mention someone’s name who hasn’t even been referenced during all of the current tort reform efforts.”  That individual is former U. S. Sen. and 2015 gubernatorial candidate David Vitter.

Then-Senator Vitter was very transparent (likely to such a fault that it cost him the gubernatorial election in 2015) entailing the direction he intended to take Louisiana, even going to the extent of publishing a “Together Louisiana Strong” brochure outlining many of his initiatives as part of his campaign. 

Though the brochure didn’t explicitly outline his plans to implement tort reform if elected Governor, he made no secret of his plans to do so.  One key element of his platform was his emphatic stand that Louisiana’s jury trial threshold (i.e. the level of alleged damages above which a defendant has a right to demand a trial by a jury of his peers) should be like that of 36 other states:  zero!

At $50,000, Louisiana’s jury trial threshold has often been cited as a key reason Louisiana has the second-highest automobile insurance rates in the nation.  Though the mainstream media felt it unworthy of coverage (trial lawyer advertising dollars?) and though the Sound Off Louisiana blog was in its infancy at the time, we certainly strived to keep tort reform front-and-center in voters’ minds in the 2015 election.

Let’s take just three short minutes to watch then Sen. Vitter’s emphatic statements about the jury trial threshold and the propensity of Louisiana lawyers to engage in “judge shopping and venue shopping.”

During 2015 Louisiana Governor’s Race, candidate David Vitter stresses the adverse impacts of Louisiana’s $50,000 jury trial threshold and Louisiana trial lawyers’ propensity to engage in “judge shopping and venue shopping.”

The recent tort reform initiative passed by the Louisiana Legislature lowered the jury trial threshold in Louisiana from $50,000 to $10,000 effective for auto accidents transpiring on or after January 1, 2021.  Many anti-tort-reform folk indicated that Louisiana could expect to see a drastic increase in jury trials as a result of that lowering; however, in the preceding video, Vitter stated the exact opposite to be the case.  He emphasized that the high jury trial threshold is what “floods” the courts with lawsuits in the first place, and we wholeheartedly agree with his assessment!

Vitter further argued that, once the plaintiff attorney gets the judge he or she desires, the defendant (and, importantly, his insurance carrier) are then essentially held hostage at the mercy of that judge and the plaintiff attorney for up to $50,000 to make the case go away.

Vitter could not have possibly been more accurate in his statement and, just as we used an illustrative example for collateral source, we want to use a real-life example of precisely what Vitter references in the above video.

Sound Off Louisiana founder Robert Burns and his mom have been insured by State Farm Insurance for the past 33 years.  During that time, only one claim has ever been filed by anyone entailing an accident by Burns or his mom (it happened to be his mom), and we’re about to succinctly state the facts of that one claim and the resulting settlement made to the plaintiff once Burns’ mom was sued by a member of the trial-attorney cabal Vitter fought against so tenaciously:

Burns and his mom have lived at an apartment complex for which the speed limit is 5 MPH.  One morning, Burns’ mother was backing out of her assigned parking space that sits between two main driveways of the complex.  As fate would have it, the garbage collector had a flat tire as they were uploading dumpsters, and so they called for a replacement tire to be delivered and installed.

When the driver for the company who was used to install a replacement tire arrived, he quickly realized that he was on the wrong side of the apartment complex and, rather than going around the complex, decided to simply barrel directly down the path of the parked cars (intended for resident use only) at a speed vastly in excess of 5 MPH.  Though Burns’ mom had just barely moved from her parking spot going in reverse (deemed automatically at fault in Louisiana irrespective of how irresponsible the other driver may be), he clipped the middle portion of her rear bumper and ripped half of it off the car.  Here’s a photo:

Bumper of Burns’ mom’s car after being half ripped off by driver of tire-repair company in a rush to get to the other side of the apartment complex to replace a flat tire on a garbage truck.

To illustrate the minimal (i.e. nonexistent) impact on the tire-replacement vehicle, let’s also provide that photo:

Barely-detectable impact of tire-replacement vehicle.

Now, despite the driver of the vehicle depicted above, Lionel James, having obvious trouble complying with the court system entailing such things as being forbidden from carrying a firearm in light of his conviction for assault with a deadly weapon and attempted first-degree murder, he had no trouble whatsoever exploiting Louisiana’s civil court system in finding one of those trial attorneys Vitter references in the video above.

Accordingly, Burns’ mother soon found herself on the receiving end of a lawsuit filed by James.  Burns was in contact with the State Farm adjuster throughout the process and, upon his mother being sued, he called the adjuster to inform her of that fact.  She immediately asked to which judge the case had been assigned.  No sooner did Burns get the words “Janice Clark” out of his mouth did the State Farm adjuster respond with, “Oh, God!”

In light of the foregoing, State Farm decided it was best to simply settle the lawsuit.  The settlement amount?  $48,500 (incredibly close to that magical $50,000 jury trial threshold, no?).  Let’s take a look at the settlement letter Burns’ mother was sent by State Farm, shall we?

$48,500 settlement letter from State Farm attorney.

Now, we can rest assured that the “$30,000 in medical bills” referenced in the above letter is where the collateral source benefit kicks in.  God only knows how much less any actual payment to the doctor for James’ “soft tissue injuries” were.  Moreover, notice that the attorney representing State Farm specifically references the fact that the case was assigned to 19th JDC Judge Janice Clark, who recently unsuccessfully sued in Louisiana District Court to remain on the bench at 73 years of age notwithstanding that Louisiana’s Constitution requires judges to retire at the end of their terms after they reach the age of 70.  She has not ruled out filing a separate action in Federal Court.

The above example demonstrates exactly what Vitter was referencing!  Had State Farm had the right to insist upon a jury trial, this case would have been exposed for the sham that it and so many others like it are!  With a jury trial threshold of $10,000 rather than $50,000 (especially when combined with the new collateral source statutes), no doubt James would not have likely been practically shoved into a doctor’s office to rack up likely vastly-inflated medical billings (the actual payments of which were likely a small fraction of the $30,000 billed), and the best he and his attorney could maybe have hoped for was $8,500 rather than $48,500.  Why?  Because State Farm would have simply insisted upon a trial by jury rather than allowing Judge Janice Clark to be the sole determinant of how much James could obtain from this lottery ticket accident.

Now, if anyone believes the trial lawyers in Louisiana were going to just turn loose of the money train derived from the kinds of litigation abuses depicted above, let’s take just one minute to again let Vitter state in his own words just how diligently those trial lawyers fought him on his proposed tort reform:

Vitter outlines the costs to Louisiana families of Louisiana’s judicial hell hole legal environment and the extent to which the trial lawyer cabal in Louisiana went to in order to ensure his defeat in the 2015 election for Governor of Louisiana.

Now, the trial lawyers would never be so stupid as to try to counter Vitter’s statements by touting Louisiana’s legal system because they knew (and know) as reflected by this link we provided above that Louisiana citizens, by a huge majority, have long supported meaningful tort reform to rein in Louisiana’s out-of-control legal environment.   From the preceding link:

• Approximately 2/3 of Louisiana voters believe there
are too many lawsuits in our state.

• More than 8 out of 10 Louisiana voters believe
lawsuit reform is needed.

• Roughly 70% believe lawsuit abuse costs jobs and
hurts our state’s economy.

• 85% believe that personal injury lawyer ads
encourage people to sue; and

• 78% believe that lawyers take advantage of disasters to file frivolous lawsuits

So, what were trial lawyers and then-candidate John Bel Edwards left with to use to oppose Vitter’s initiatives given that the vast majority of Louisiana citizens agree with his positions regarding tort reform?  Well, we all know the answer to that question.

Then-candidate Edwards was also smart enough to know that Louisiana citizens strongly supported (and support) meaningful tort reform.  Accordingly, his advisors insisted that he pass on the lawsuit abuse forum at which Vitter outlines his initiatives above.  Nevertheless, we at Sound Off Louisiana did our best to force Edwards to provide his stance on tort reform, especially the jury trial threshold.  Let’s take just another minute to see just what Edwards stated his stand on the jury trial threshold was (and is):

Then-candidate John Bel Edwards, during a 2015 debate for Governor of Louisiana, expressed his rationale for opposing the lowering of the $50,000 jury trial threshold in Louisiana.

Now, don’t anyone for a moment believe that John Bel Edwards believes a word he is saying about electing “conservative judges” in Louisiana.  He is an attorney, and he knows how the system works.  State Judges are elected from for each district (e.g. 19th JDC) from geographic areas that are represented by very conservative judges AND by very liberal judges.  When a lawsuit is filed within that district, a plaintiff has a supposedly-random (some have questioned if it’s truly “random”) chance of drawing a conservative judge vs. a liberal judge.  They are supposed to be allocated sequentially as suits are filed.

Once the attorney knows which judge has been drawn, he or she basically knows (as does the defense attorney and defendant) whether the plaintiff is sitting in high cotton (e.g. the “Oh, God” commentary of the State Farm adjuster above upon learning that the assigned judge was Janice Clark) or whether in fact it is the plaintiff who recognizes a need to go into immediate “let’s settle fast for whatever small amount the defendant’s insurer will offer” mode (e.g. if former 19th JDC Judge Michael Caldwell had been drawn).

On the very day Governor Edwards was being inaugurated in 2016, Sound Off Louisiana‘s Robert Burns had arrived way too early for the same function entailing Attorney General Jeff Landry.  Accordingly, in order to kill some time, he decided to just drop in and observe a few civil arguments in 19th JDC.  He happened to visit Judge Don Johnson’s courtroom, and he was stunned to hear arguments to transfer a case from St. Tammany to Baton Rouge notwithstanding the fact that the defendant (a retirement community) was located in St. Tammany Parish, the plaintiff resided in St. Tammany Parish, and the case had already been filed in St. Tammany Parish.

What was the plaintiff’s argument for transferring the case?  The out-of-state insurance company was being sued and, since its agent for being served was listed as being located in East Baton Rouge, that attorney felt that gave grounds to transfer the case to 19th JDC in East Baton Rouge.  Naturally, the real reason was that St. Tammany is a highly-conservative parish in Louisiana, and obviously one of those “conservative judges” Edwards references in the above video had been drawn, so the plaintiff attorney had to find some way to transfer the case to a jurisdiction with a much higher probability of a favorable outcome for him than in St. Tammany Parish!

That is the type of “venue shopping” Vitter references, and it was incredible that such an argument was being posed in such close proximity to where a new Governor from Amite, Louisiana was soon to be sworn into office after having gone on record as supporting the very system that thrives on such garbage tactics.

Now, the defense attorney posed the counter argument (who knows, maybe he’ll read this post and remember it) that the plaintiff’s argument was utterly absurd on its face and that, if the court granted the transfer, it would result in massively-larger costs to both parties and that, if that’s all that is required to transfer a case (i.e. that an insurance company’s agent for process service is located in Baton Rouge), then virtually every case in which an insurance company is named as defendant would have to be tried in Baton Rouge!  He also stated (in a semi-humorous tone), “Your Honor, I don’t know why opposing counsel wants this case tried in this venue so badly.  Perhaps he likes you.”  Judge Johnson merely waved his hand with a laugh, after which he said, “Look you guys are going to have to get this resolved at the Legislature, but I can tell you this:  We are already jammed to the max on our dockets.  I agree with defense counsel that moving this case to 19th JDC would not promote judicial efficiency, and I’m therefore going to deny the motion.”  The case was thereafter settled in St. Tammany Parish, and we’re willing to bet it was for an amount substantially less than $50,000!

Notice in the above video that Edwards references that it “would not be efficient” to have 12 people miss a day of work for an $8,000 “fender bender.”  Well, and, yes, we’re being sarcastic here, perhaps Gov. Edwards “saw the light” so to speak in that he signed a bill permitting 12 jurors to decide a case with only an additional $2,000 in alleged damages beyond the amount he stated would be “inefficient.”

No, the reality is that Gov. Edwards who, were he properly motivated by the welfare of Louisiana citizens and their will, would have supported tort reform long ago, has been in the back pocket of trial lawyers from even before he took office as a mere candidate in 2015.  The “Damascus Road Experience” that Edwards encountered was that, had he not signed the bill, he could forget ever getting a single initiative he supported during his second term through the Republican-controlled Legislature!  In fact, Moon Griffon has stated that he told at least one legislator, “I’m going to sign this thing because I don’t want this to be all we talk about the next 3 1/2 years!”  If he in fact did say that, then let’s give him credit for being astute.  He was spot-on in that this is one issue for which the people of Louisiana were simply not going to let go.  Edwards obviously sized up as much and knew the only way to “move on” was for him to sign the bill.  He knew that to be the case irrespective of how much it may alienate the trial-lawyer cabal which spent millions getting him elected over Vitter and thereafter fending off Rispone last year (though Rispone and his crew of out-of-state charlatan campaign managers did virtually all of the heavy lifting for Edwards).

We have no doubt that Vitter is smiling and content with the fact that the corrupt, gravy-train, downright-theft racket that the attorney cabal has been operating in Louisiana has been and will continue to be completely collapsing under its own weight.  Further, in the end, even without Vitter’s election, the voters of Louisiana have been able to take the first step toward crushing it to pieces.  Look for the next steps once a new governor is sworn into office in early 2024 to include:  A) expanding the prescription period from one year to two years, B) eliminating the ability for the defendant’s insurer to be named as another defendant (i.e. direct action), C) meaningful legislation to restrict venue shopping, and D) further reducing the jury trial threshold to ZERO!  Considering the fact that John Bel Edwards resides in the Governor’s Mansion, the current tort reform initiative can only be viewed as a VERY resounding victory for the people of the state of Louisiana!

If you would like to be added to our Sound Off Louisiana email list to be notified of future posts, simply go to our home page and scroll to the bottom (mobile devices) or to the top of the right-hand column (desktops).  Supply your email address within the subscribe box.  You’ll then receive an automated email from Word Press, and all you have to do is click on the blue “confirm follow” bar contained within that email, and you’ll begin receiving great posts such as the preceding one above.

LSTA plaintiff Trahan investigates Gov. Edwards’ casino visit, culminating in 8-hour suspension for disobeying direct order to reveal identity of Cypress Bayou’s Jack Darden.

Louisiana State Police Sergeant John Trahan, Jr., who appealed his 8-hour suspension to the Louisiana State Police Commission for which the hearing transpired on Thursday, July 9, 2020.

Louisiana has some of the strictest laws in the nation expressly prohibiting casinos from directly contributing to political campaigns.  Nevertheless, plenty of money effectively finds its ways into Louisiana elections via Democratic and Republican Governor’s Associations.  From the preceding article entailing Gov. Edwards’ re-election efforts last year:

Gov. John Bel Edwards at the statehouse in Baton Rouge. The Democratic Governors Association spent more than $8 million helping reelect him last fall.

At the height of the gubernatorial campaign last year, Gov. Edwards apparently decided to visit officials at Cypress Bayou Casino, an Indian-owned and operated casino in Charenton, Louisiana.  We’ll assume Gov. Edwards happened to be in the neighborhood and decided to simply drop in and say a friendly, “Hello.”

Soon after his visit, Louisiana State Police Sergeant John Trahan, Jr., who serves as the site Sergeant at Cypress Bayou [and who is one of the listed plaintiffs in the Louisiana State Trooper’s Association lawsuit against the Louisiana State Police Commission (LSPC) in which it is itself suing for the right to make political campaign contributions — see plaintiff “m” on the preceding link] was tasked to investigate Gov. Edwards’ visit.

Upon him doing so and issuing an incident report on the visit by Gov. Edwards, Trahan referenced unnamed casino officials whom Trahan claimed openly questioned why Trahan’s supervisor, Lieutenant  Charles Lauret, had visited the casino while Trahan was on annual leave.

Lauret instructed Trahan to provide the name(s) of casino officials who wanted to know why he had visited the casino, but Trahan responded that the names of any such individuals was “not relevant” to his investigation of Gov. Edwards’ casino visit.  He steadfastly refused to reveal the identity of any casino manager at Cypress Bayou who had inquired about Lauret’s visit.

Lauret believed Trahan’s steadfast refusal to answer his question to be disobeying a direct order from a superior.  Louisiana State Police upper brass agreed, and then-LSP Lt. Col. Mike Noel suspended Trahan for eight hours without pay for his action.  Trahan appealed the suspension, and the matter was heard before the LSPC on Thursday, July 9, 2020.   Let’s take a couple of minutes to view Lauret elaborate on the matter:

At the 7/9/20 LSPC meeting, Lietuenant Lauret explains the circumstances entailing Sergeant Trahan’s 8-hour suspension for disobeying his order to reveal the identity of any Cypress Bayou official inquiring about his visit to the casino.

The next witness called by LSP was Lauret’s supervisor, Captain Kenny VanBuren, who serves as the commander of LSP’s gaming enforcement division.

VanBuren had scathing words directed at Sergeant Trahan, openly stating that he felt Trahan was “lying” about any official at Cypress Bayou inquiring about Lauret’s visit and that, based upon VanBuren’s investigation of the matter, Trahan had “no credibility with me.”  Let’s take a look at VanBuren’s scathing commentary entailing Trahan:

At the 7/9/20 LSPC meeting, Captain Kenny VanBuren has scating commentary regarding LSP Sergeant John Trahan, Jr.

The next witnesses called were Lieutenant Saleem El-Amin and Mike Noel, who was at the time of this incident a Lieutenant Colonel and LSP’s Chief of Staff (he is now head of the Louisiana Gaming Control Board).  El-Amin and Noel essentially reinforced the importance of following orders, and their testimony is available for viewing at the link below which provides the appeal hearing in its entirety.

As is obvious from the preceding video of Captain VanBuren, the identify of the individual Trahan alleged inquired about Lauret’s visit was ultimately revealed by Trahan:  Cypress Bayou Assistant General Manager Jack Darden.  As is also obvious by the preceding video, VanBuren testified that he contacted Darden directly and that Darden stated that he did not question Trahan regarding LSP’s visit.

When VanBuren made that revelation, we failed to swing the camera toward Trahan timely to get his reaction to VanBuren’s statement, but his body language and expression demonstrated that he was in stunned disbelief.

The final witness was Trahan himself, and he attempted to justify his reasons for failing to reveal Darden’s identity based upon four contentions which he felt justified his steadfast refusal to reveal Darden’s identity:

  1.  That it was “not relevant” to his initial investigation of Gov. Edwards’ casino visit.
  2. That he should weigh his obligation to obey Lauret against his duty to “protect the innocent or weak.”
  3. His purpose of providing the material in the report was intended to demonstrate a “lack of communication” and the fact that he was left “out of the loop” of communications.
  4. That he’d had a prior similar incident in the spring of 2019 and that Sergeant Robert Dowdy, whom he asserted had told Trahan to “stay out of my business” and that Dowdy had “scolded” both Trahan and the administrator of the casino.  Trahan said he felt “burned” by that incident with Dowdy.

The following video constitutes highlights of Trahan’s testimony before the LSPC:

At the 7/9/20 LSPC meeting, Sergeatnt Trahan pleads his case for his contention that an 8-hour suspension of him is “too harsh.”

The LSPC then went into executive session to decide the matter, and it was one of the fastest executive sessions we’ve observed in all of the meetings we’ve attended.  The following video provides the LSPC’s findings:

At the 7/9/20 LSPC meeting, with little fanfare, Sergeant Trahan’s 8-hour suspension is unanimously upheld.

Perhaps we’ll never know the results of Trahan’s investigation of Gov. Edwards visiting Cypress Bayou casino during the height of the campaign for Governor last year, but again, we’ll just go on the assumption that he happened to be in the neighborhood and decided to drop in and say, “Hello.”

The entirety of the hearing is readily available by clicking here.  

The Trahan appeal hearing constituted the only matter of substance at the LSPC meeting of July 9, 2020; however, for anyone interested in viewing the non-Trahan portion of the meeting can feel free to do so by clicking here.

If you would like to be added to our Sound Off Louisiana email list to be notified of future posts, simply go to our home page and scroll to the bottom (mobile devices) or to the top of the right-hand column (desktops).  Supply your email address within the subscribe box.  You’ll then receive an automated email from Word Press, and all you have to do is click on the blue “confirm follow” bar contained within that email, and you’ll begin receiving great posts such as the preceding one above.

As GOP legislators celebrate huge tort reform victory, Sen. Hewitt, House Speaker Schexnayder explain Sen. Peacock’s withdrawal of collateral source as football equivalent of flea flicker.


Louisiana House Speaker Clay Schexnayder (R-Gonzales).

Louisiana State Sen. Sharon Hewitt (R-Slidell).

In the waning moments of the 2020 Louisiana Legislative Special Session which concluded on June 30, 2020, a huge victory for tort reform advocates transpired when both bodies approved Speaker Schexnayder’s HB-57 by incredibly wide margins (86-15 in the House and 35-4 in the Senate) and Gov. Edwards indicated that he will sign the measure into law.  The following table summarizes the major provisions and impacts of the tort reform measure:

Component of Louisiana's Tort System.BEFORE HB-57 by Speaker Schexnayder takes effect on 1/1/21.AFTER HB-57 by Speaker Schexnayder takes effect on 1/1/21.
Jury trial threshold (the minimum amount required to enable the defendant to have the right to insist upon a trial by jury rather than a judge).$50,000 (strongly encouraged judge and venue shopping).$10,000 (will make judge and venue shopping far less lucrative).
Seat belt disclosure entailing whether plaintiff was wearing or not.CANNOT be disclosed to the jury.CAN be disclosed to the jury.
Collateral source (the basis upon which medical payment judgments are awarded).The amount the physician, hospital, or other health care provider BILLED.The amount the physician, hospital, or other health care provider WAS ACTUALLY PAID (with a provision for adding up to 40% of the difference between amount billed and amount paid to recover plaintiffs' costs -- e.g. attorney fees -- to obtain that payment).
Direct action (i.e. ability to name as defendant) against defendant's insurance company.Yes.Yes, but with the provision that reference to that insurance company to the jury may transpire only during opening and closing arguments.
Prescription period (i.e. maximum time frame for filing lawsuit after accident).One YearOne Year

In installment two of this series, we’ll examine in depth why the lowering of the jury trial threshold is so critical.  For this segment, however, we want to focus on “collateral source,” which is an item illustrated by specific example in our last post.  Let’s reintroduce the Blue Cross Blue Shield (BCBS) processed claim of Sound Off Louisiana founder Robert Burns for a minor surgical procedure he had performed on June 1, 2020 (not auto-accident-related, but it serves the same purpose as if it had been):

As illustrated above, the surgeon billed $1,600; however, BCBS only approved $184.12, and that was the amount Burns remitted to the physician.

Under the current system, the jury is only shown the $1,600 figure and, hence, that’s the amount they’re likely to award as part of a judgment.  As we illustrated in the feature linked above, the net result of that is a huge unjustified windfall to the plaintiff as well as to his/her attorney (plaintiff’s windfall = $882.55; plaintiff attorney windfall = $471.96 — see previous post for how these windfalls are calculated).

Under the new system to take effect on January 1, 2021 for auto accidents transpiring after that date, the amount to be recovered is limited to $184.12 with a provision of up to 40% of the difference between the two amounts to be added to the final judgment by the judge overseeing the case.  So, in the example above, the judge would have the authority to award a grand total of $750.47 [$184.12 + 0.40 x ($1,600 – $184.12)].

The theory behind the 40% add on by the judge is essentially to permit the plaintiff to recover legal fees required to get the judgment and thus be made whole.  There is a provision in the newly-enacted law stating that the added amount by the judge should not be “excessive.”  The closer the amount billed is to the amount paid (as is apparent, they are miles apart on the example above), the more a judge would be expected to exercise his (her) discretion and make a 40% adjustment.

For example, suppose the amount billed by Burns’ doctor above had been a mere $400.  Then, a 40% add on differential is fully justified to keep the plaintiff from not even being made whole after paying attorney fees.  Under that scenario, the judge could increase the award of $184.12 to $270.47 [$184.12 + 0.40 x ($400 – $184.12)].  Given typical attorney fees of one-third of a judgment, this would leave the plaintiff with $180.31, or an amount which essentially makes him “whole.”

Obviously, when there is an ocean of difference between the amount billed by the doctor and the amount actually paid (as is the case on the illustrated example), there is the potential for a judge to abuse the system and award an unjustified amount ($750.47 in the illustration above); however, there is a provision in the law that says “provided the amount will not be excessive,” so presumably an insurance company could successfully challenge any such abuse by a trial judge.

In the example above, the judge, to be fair and fully compensate the plaintiff for his medical bill, should increase the actual medical payment of $184.12 by $92.06, to $276.18.  That way, after the attorney gets his one-third share ($276.18 x 1/3 = $92.06), the plaintiff is made whole at $184.12 ($276.18 = $92.06).  Now, $92.06 represents only 6.50% of the difference between the billed amount and paid amount, so the smarter judges (or those not still hell-bent on gaming the system) will refrain from making a 40% adjustment and stick with the numbers we’ve just illustrated.

Now, on the linked feature above, we provided a video segment of Sen. Barrow Peacock stating that he was introducing an amendment which would remove “collateral source” from HB-57 “unfortunately.”  As such, everything would remain the same regarding the example above and the jury only be shown the $1,600 figure.  The remainder of the video on that segment dealt with Sen. Heather Cloud appearing on Moon Griffon’s morning show lamenting the fact that was the case and voicing extreme frustration that collateral source had been removed.

For purposes of this feature, we want to reproduce only the 7-second video of Peacock’s removal of the collateral source language.  Here it is:

State Sen. Barrow Peacock removes “collateral source” from HB-57 on the Senate Floor on Monday, June 22, 2020.

In conference committee, the collateral source language referenced in the table above was added into the bill.  Based upon the knowledge that he had at the time, Sound Off Louisiana‘s Burns made a Facebook post congratulating a quick rundown of perceived winners from the passage of HB-57 (the tort reform bill) but also itemizing Sen. Peacock and Senate President Page Cortez as the “biggest losers” based upon the preceding video.

We did openly ponder if House Speaker Schexnayder, who doesn’t have the reputation for being loud or boisterous in public, may have gotten behind closed doors and pounded his fist on the table insisting that collateral source be added back in.  Some people can be far more forceful behind closed doors than they are in public.  In fact, we’ve been told by some folk close to Gov. Edwards that he has been known to “blow his stack” in closed-door meetings with his staff, yet the public never sees that side of him.

We got direct responses to the above Facebook post both from State Sen. Sharon Hewitt (R-Slidell) and House Speaker Clay Schexnayder.  Both indicated that we merely got it “wrong” entailing Peacock and Cortez being “losers” and that it was all part of a master plan to “buy time” and advance the bill with the knowledge all along that collateral source would be added back in conference committee.

In a nutshell, they said that we bit on the football equivalent of a flea flicker.  For those unfamiliar with that play in football, it transpires when the quarterback hands the ball off to a running back who, after approaching the line of scrimmage making the play appear to be a run, turns around and shuffles the ball back to the quarterback, who then seeks to find a wide-open sprinting receiver not covered nearly as tightly as would otherwise be the case because the defense has “bitten” on the appearance that the play is a running play.

Using that analogy, both Burns (and even more so Griffon) most certainly “bit” on the play as a run play, and as “fans” in this football analogy, openly booed VERY loudly (especially Griffon) in that our team was facing a fourth and eight with the clock rapidly churning toward the end of the game, and there was simply no way we were going to get the first down (much less win the game) on a freaking running play!  Accordingly, both Burns (and, again, even more so, Griffon — just listen to the features on the preceding linked post) didn’t hold much back in voicing frustration and anger at the two most integral payers in facilitating this flea flicker (Peacock as running back, and Cortez as quarterback).

Both Sen. Hewitt and Speaker Schexnayder have let us know that we most certainly “bit” on the flea flicker.  Here are their respective responses to our Facebook post:

Senator Hewitt:

Robert, I appreciate your enthusiasm for getting tort reform passed–it has been 25 years in the making and we are all very proud to have moved our state forward on this issue.
While it is true that Sen Peacock removed on the Senate floor the collateral source language in the Speaker’s bill (with his concurrence), there always was a plan by Pres Cortez and Sen Peacock to get collateral source language passed. By allowing the bill to continue to move to conference committee, we bought more time for OUR stakeholders to agree on the best collateral source language to add back into the bill. We also moved Rep Nelson’s and Rep Garofalo’s tort bills through the Senate and back to the House, both of which had collateral source language and could be sent to the Governor. It was all part of the strategy that the President and the Speaker developed together through unprecedented cooperation.


Speaker Schexnayder:

Mr. Burns, thank you for the kind words. It was a difficult session considering the circumstances but I am proud of what we accomplished. With that said, you have it completely wrong when it comes to Senate President Cortez and collateral source. You should know that President Cortez and I were in 100% lock-step the entire time – he co-authored my bill. It was with his help that we were able to navigate the process and come out on the other side with the end result, which was our goal from day one. To label him a loser of the session would be to totally misread it.

We fully accept both Sen. Hewitt’s response to our Facebook post and that of Speaker Schexnayder.  We did, however, qualify that acceptance with the statement that we were glad to know this was a “fake out” because otherwise, the optics depicted in the 7-second video above were “horrendously bad.”  We don’t mind being fans of this “sport” who got faked out by the flea flicker.

We did point out to Sen. Hewitt that we found it unfortunate that such high-level chess games had to be played and that it would be nice if we could just play the equivalent of smash-mouth, up-the-gut, in-your-face, boring offense, especially since “our side” has a near-veto-proof majority in both Chambers.  Maybe we just have too much of a soft-spot for old Les Miles!  Nevertheless, we stressed that, whatever may have been required to get the victory, we were pleased with the victory because, as we stated, fiscal conservatives (and we know we speak for many) were starting to get “pretty downtrodden” at always losing, and the victory on tort reform at the end of the Special Session was a most-welcome shot in the arm to rejuvenate many of us!


As stated above, our next segment is going to focus on the lowering of the jury trial threshold and, in that feature, we’re going to mention someone’s name who hasn’t even been referenced during all of the current tort reform efforts, and we believe that person deserves very special recognition, and we intend to provide it!


If you would like to be added to our Sound Off Louisiana email list to be notified of future posts, simply go to our home page and scroll to the bottom (mobile devices) or to the top of the right-hand column (desktops).  Supply your email address within the subscribe box.  You’ll then receive an automated email from Word Press, and all you have to do is click on the blue “confirm follow” bar contained within that email, and you’ll begin receiving great posts such as the preceding one above.