Sound Off Louisiana

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.

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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:

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.

State Sen. Barrow Peacock introduces an amendment on Monday, June 22, 2020 to the tort reform initiative which led to colleague State Sen. Heather Cloud’s disappointment over the amendment’s effective gutting of insurance premium reductions for small businesses, particularly trucking operations like her own.

Sound Off Louisiana subscribers will recall our reporting on the absolute, unmitigated disaster that Louisiana State REPUBLICAN members allowed to transpire which torpedoed the regular session’s tort reform effort.  That total implosion occurred in a conference committee comprised of six members (three from the House and three from the Senate) wherein an amendment was added to essentially offset the bill’s provision on “collateral source” (we’ll be illustrating “collateral source” in very simple, easy-to-understand terms shortly).

In really overly simplistic terms, the amendment essentially provided that insurance companies would have to remit upfront 18 months of health insurance premiums to an auto accident victim.  Astute members of the Legislature, particularly State Rep. Alan Seabaugh (R-Shreveport) recognized what a disastrous effect that amendment had on the whole tort reform effort.  Accordingly, he, along with fellow conservative (and House GOP delegation leader) State Rep. Blake Miguez (R-Erath) declined to even support the measure that came out of the conference committee (they abstained from voting on the measure).

The measure was then presented to the respective bodies of the Legislature, many of whom went on the faith and word of members of the conference committee, that the bill was “a good bill” and deserved their support, where it passed.  The House vote transpired with literally only 17 minutes left before the session expired, and many representatives readily admitted to not having a clue what they were voting upon.  Conservative talk-show host Moon Griffon reported on his June 2, 2020 program that State Sen. Kirk Talbot, who sponsored the tort reform bill, was actually calling a number of his colleagues apologizing for what happened with the bill because Talbot was a member assigned to the conference committee.

When word spread of what the disastrous amendment was and, amid predictions that insurance premiums would actually increase 15% – 20% as a result of the bill, Griffon further reported that many Republican legislators immediately found themselves in the awkward position of having to hope that Louisiana Gov. John Bel Edwards would veto the bill they’d just voted for!  Edwards, a staunch opponent of tort reform, obliged, and we have no doubt he laughed uncontrollably at the very thought of Republican legislators secretly hoping he would veto THEIR OWN bill!  If any Republican had objected (which certainly wouldn’t happen), he could have easily said, “I just did what you guys wanted me to do.”  Obviously, given the bizarre circumstances, there was no initiative whatsoever by Republicans to override Edwards’ veto.

So, along comes the current special session, which ends on Tuesday (June 30, 2020), and an effort is made to essentially totally reset and start from scratch on tort reform.  Given the debacle that transpired last session, we at Sound Off Louisiana have intentionally refrained from reporting anything until we’re right here at the closing wire.  To be blunt, we simply have not shared  some of the optimism being expressed regarding the current effort, nor do we want to get burned again the way we did last session!

It turns out that our skepticism over the current effort has been well-justified.  On Monday, June 22, 2020, State Sen. Barrow Peacock (R-Bossier City), almost assuredly at the urging of Sen. President Page Cortez (R-Lafayette), introduced an amendment designed to essentially gut the current tort reform effort entailing providing much-needed insurance premium relief for small businesses.  He did so by sponsoring an amendment to remove the provision of the original bill called “collateral source” (again, we are going to illustrate “collateral source” in simple, easy-to-understand terms shortly).

Peacock’s move resulted in extreme disappointment to his colleague State Sen. Heather Cloud (R-Turkey Creek), who had based her entire campaign (which she won in the first primary with an astounding 63% of the vote) on the need for tort reform and illustrated that need by the significant adverse impact the current legal climate in Louisiana has on her own trucking business.  Accordingly, on Tuesday, June 23, 2020, many of Sen. Cloud’s constituents texted her and encouraged her to appear on Griffon’s show.  She did so, and we think our subscribers can learn quite a bit by merely listening in on just what all she had to say about the prior day’s developments as led by Sen. Peacock (again, almost assuredly at the direct behest of Cortez):

Sen. Cloud voices her disappointment on the Moon Griffon show on Tuesday, June 23, 2020, the day after the removal of “collateral source” amendment was adopted.

The very next day, Wednesday, June 24, 2020, Griffon had on his show Pelican Institute CEO Daniel Erspamer, who described the latest iteration of the Legislature’s tort reform efforts as “frustrating to watch.”  Griffon unloaded on a number of legislators immediately after Erspamer made his statement, so let’s listen in on just what Griffon’s take is on the current (and past) tort reform efforts by Louisiana Republicans:

On his Wednesday, June 24, 2020 show, Griffon unloads on several state legislators regarding their efforts entailing tort reform.

Now, just as we promised above, we are about to illustrate in extremely simple terms just what transpired by the removal of “collateral source.”  The phrase has the connotation of being very complicated when, in reality, it’s actually very simple.

The easiest way to illustrate the impact of the amendment’s effect is to provide a real-life example.  On Monday, June 1, 2020, Sound Off Louisiana founder Robert Burns had to have a minor surgical procedure performed.  While it was not the result of any traffic accident, it serves the purpose perfectly for this illustration.  The cost of the procedure has already been processed by Burns’ insurance carrier, Blue Cross and Blue Shield of Louisiana (BCBS), and here is the claim form’s details for Burns’ procedure:

Now, as plainly seen above, the doctor billed $1,600 for the procedure; however, BCBS only approved $184.12, and that is the actual amount Burns had to pay the doctor (as noted by BCBS indicating Burns has not yet met his annual deductible and therefore would be responsible for paying the $184.12).

The way the process works now is that the judge or jury is shown only the $1,600 billed.  Accordingly, the judgment is likely to be for $1,600.  Well, since most trial lawyers have one-third contingency contracts for auto accidents, let’s take a look at just how much the attorney receives of that $1,600, shall we?

$1,600 x 1/3 = $533.33.

The plaintiff (had this been an auto accident) actually also gets a huge windfall because, while he paid only $184.12 for the procedure, he would obtain $1,066.67 from the defendant’s insurance company, resulting in an $882.55 windfall ($1,066.67 – $184.12).  Not too shabby, huh?

The original tort reform measure would, as Sen. Cloud explains in the audio above, have permitted the jury to see BOTH the amount the doctor billed for the procedure AND the amount he or she was actually paid and use both numbers in setting the award for damages.  The reason the trial lawyer lobby has fought the inclusion of “collateral source” (i.e. the disclosure of these varying amounts) is because they know most juries would simply not allow for such an unjustified windfall and would only award the actual amount the defendant had to pay for the procedure, or $184.12 in the illustration above, rather than the “phantom number” (as stated by Cloud on the audio above) of $1,600.

Well, what exactly would this mean for an attorney handling this case?  What would his compensation be if the jury only awarded $184.12 rather than $1,600?  The math is pretty simple, and here it is:

$184.12 x 1/3 = $61.37.

So, in the example above, the lawyer loses out on $471.96 ($533.33 – $61.37)!  Now it becomes very easy to see why the trial lawyer lobby so staunchly opposes the introduction of “collateral source” (i.e. disclosing both numbers to the jury) into Louisiana’s legal system, no?

So, when Sen. Peacock described the removal of collateral source from the tort reform bill as “unfortunate” (see first segment of second video above), here’s what he was REALLY saying to Sen. Cloud and other small business owners like her:  “Sen. Cloud, unfortunately, we’re going to have to continue to charge you outrageous insurance premiums irrespective of whether it closes you down or not or forces your relocation out of state because we’ve got some trial lawyers whom we don’t want to see have to downsize from a $3.8 million home to a mere $2.1 million home.”  That’s a heck of a message to send to small business owners across this state, much less others looking to potentially locate here, huh?

One other note we wish to make.  One prominent Republican Louisiana State Senator made a Facebook post stating that “much” of what we have said about the Louisiana Legislature’s tort reform efforts is “wrong.”  Needless to say, we were not very pleased with that Facebook post by that prominent Louisiana State Senator, and we theorized that what was referenced originated from our repeating of  Griffon’s statements he made on his June 2, 2020 program because that was the crux of our Facebook statements which were deemed “wrong” by this State Senator.

We challenged the State Senator to provide specific examples of where we are “wrong,” and we supplied the Griffon link above as our source.  The response from this State Senator?  As U. S. Sen John Kennedy would say, “zero, zilch, nada, nothing.”  We also told the State Senator that we would provide unlimited video time on Sound Off Louisiana for which we would not edit in any way, shape, or fashion for this State Senator to go on camera and elaborate upon how “much” of what we have stated is “wrong,” and we also stated that we felt certain Griffon would extend the same invitation.  Again, no response.

We’re going to conclude by making this simple statement to ALL Republican legislators regarding our Facebook exchange with the State Senator.  Sound Off Louisiana‘s Burns is most certainly not the “Tyler Bridges of the Republican Party of Louisiana.”  For those unfamiliar with Bridges, he is an Advocate reporter who has the moniker among conservative Republicans of being a “stenographer for John Bel Edwards.”  Essentially, they contend he publishes whatever John Bel Edwards tells him to place in his articles.  What we mean by our warning to Republican legislators is that any legislator who believes Burns is simply going to copy and paste the spin put out in an email sent by a Republican legislator on any matter doesn’t know Burns well at all!

Burns has no problem being called “wrong,” and he will happily correct any error pointed out to him by anyone.  That fact notwithstanding, when someone makes a very public proclamation that he is “wrong” on “most” of his commentary on tort reform efforts and then declines to provide the first modicum of substantiation on how he is “wrong,” that individual (be it a sitting Louisiana State Senator or otherwise) loses an absolute boatload of respect from Burns!

So, in final analysis, where does the modified tort reform effort initiative currently stand in the Legislature?  Once again, it is being deliberated by yet another conference committee.  Given the absolute unmitigated disaster that transpired in that committee during the regular session, House Speaker Schexnayder and Senate President Cortez apparently decided to take no chances of a repeat debacle this time around and named themselves as members of the conference committee.  A full list of members follows:

HOUSE conference committee membership on tort reform:

Speaker Schexnayder (R-Gonzales), Rep. Greg Miller (R-Norco), and Rep. John Stefanski (R-Crowley)

SENATE conference committee membership on tort reform:

Sen. President Page Cortez (R-Lafayette), State Sen. Barrow Peacock  (R-Bossier City), and Sen. Jay Luneau (D-Alexandria) — we’ll be nice and not reference Sen. Luneau by Griffon’s nickname for him!

We’ll see what the above crew comes up with (though it would be nearly impossible to top what the crew from last session managed to turn out), how their respective full bodies respond, Gov. Edwards’ action (sign or veto) of any final measure and, possibly, an effort to override Edwards’ veto should one arise.  Who knows, maybe we can even be relied upon to publish something that is “right” in a certain State Senator’s view for once!

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