Broussard, David & Moroux, Author at Louisiana Lawyer Blog

Medicare Set-Asides and your settlement

August 22, 2011 | by Broussard, David & Moroux

The Medicare Secondary Payer (MSP) statute is a federal statute that governs the receipt of Medicare payments. Under the statute, Medicare is a secondary insurer that may only be used after an individual exhausts any other available means of insurance. Accordingly, in workers compensation claims, workers compensation should be the primary source of medical insurance coverage.

The MSP statute states that if the plaintiff intends to settle with workers compensation for an amount greater than $250,000 and anticipates future medical treatment, the plaintiff must allocate a specific portion of the settlement to a Medicare Set Aside account (MSA). If the injured individual exhausts his MSA allocation, then he may receive Medicare payments. This account protects Medicare’s interests as a secondary insurer.

Being Aware of Your Digital Footprint: How Facebook Can Destroy a Case

August 15, 2011 | by Broussard, David & Moroux

Social media can be helpful tool to connect to family, friends and colleagues. However, with sites such as Facebook boasting 750 million users, pictures and posts on social media sites can easily become evidence utilized to destroy a case. Most recently, attorneys have turned to Facebook for evidence in family law and workers compensation cases, where evidentiary rules can be more relaxed.

Facebook has various features that can threaten a plaintiff’s case. For example, “wall” comments or published photos might paint a different picture than the plaintiff’s contentions in the litigation. Additionally, status updates include dates and times that can wholly contradict a plaintiff’s claims about the magnitude of an injury.

Though attorneys need to overcome significant evidentiary hurdles to utilize social media as evidence, litigants should still be cautious in posting any information online. If you or a loved one plan to bring a personal injury lawsuit, it is important to pay close attention to your digital footprint. Because privacy settings are unreliable, you should consider temporarily deactivating your Facebook account until litigation ends.

Pythons in Florida: Strict Liability for Exotic Animals

August 8, 2011 | by Broussard, David & Moroux

A Florida couple stood trial this month, facing third degree murder and manslaughter charges after their starved pet python tragically killed their toddler. In addition to criminal charges, many states, including Florida, have laws that impose strict liability on owners of exotic animals that seriously injure or kill.

Strict liability means legal responsibility for damage regardless of fault. In Louisiana, Civil Code Article 2321 governs liability with respect to wild animals and ordinary household pets. Article 2321 states that “the owner of an animal is answerable for the damage caused by the animal” but requires a showing that the owner “knew or should have known that his animal’s behavior caused the damage.” The article, however, excludes owners of dogs, stating dog owners are strictly liable for injuries caused by their dogs.

High Court Orders Tobacco Companies to Pay $270 Million

August 1, 2011 | by Broussard, David & Moroux

Tobacco companies will now have to pay $270 million for the implementation of a smoking cessation program after the U.S. Supreme Court reinstated a Louisiana court order that was unilaterally blocked by Justice Scalia last September. The Court also denied the tobacco companies’ appeal.

Louisiana smokers first filed a class action lawsuit against tobacco companies in 1996. A jury ruled in favor of the class, and a Louisiana court ordered tobacco companies to make multi-million dollar payments toward programs to help smokers quit smoking.

Although Supreme Court justices have the power to block another court’s order, the justices rarely use this power. In blocking the order, Justice Scalia cited his concern for the rising abuse of class action lawsuits in state courts. The Court recently addressed this same concern in Dukes v. Wal-Mart, rejecting a class of 1.5 million female Wal-Mart workers alleging sex discrimination.

Boating Safety in Louisiana

July 25, 2011 | by Broussard, David & Moroux

Governor Bobby Jindal recently signed House Bill 291 into law, prohibiting underage drinking in waterways. The new law also increases fines for the careless operation of a watercraft and imposes penalties for flight from an officer on water.

Until this legislation, uncertainty existed as to whether the State’s underage drinking prohibitions applied to waterways. According to the bill’s authors, the legislation is now clear: A person must be 21 to consume alcoholic beverages on a boat.

The same bill also rewrote the state’s law regarding the careless operation of a watercraft. The new law requires a watercraft’s operator to issue warning signals in fog or bad weather, to operate the boat at reasonable speeds and to maintain a proper lookout. Violations of the law may result in up to a $300 fine, 30 days in prison, or both.

High Court sides with Wal-Mart in Class Action

July 18, 2011 | by Broussard, David & Moroux

The United States Supreme Court awarded Wal-Mart a a victory recently when the Court rejected a class of 1.5 million workers alleging sex discrimination against the company. The Court held that the workers failed to prove “questions of law or fact common to the class” under Federal Rule of Civil Procedure 23.

The female workers alleged that Wal-Mart’s corporate culture institutionalized bias against female employees in the workplace. The workers asserted that this institutional bias made every female worker a victim of sex discrimination. The Court declined to address the merits of the plaintiffs’ discrimination claims against Wal-Mart.

The Federal Rules of Civil Procedure govern civil lawsuits in United States federal courts. Rule 23 sets the requirements and procedures for class action litigation. In arriving at its holding, the Court stressed Rule 23’s “commonality” requirement, a mandate that all members of a class must have a common legal claim. The opinion stated that the Wal-Mart workers’ claims encompassed “literally millions of employment decisions at once,” requiring “significant proof that Wal-Mart operated under a general policy of discrimination,” which the class failed to show.

Pharmaceutical Companies spared by Supreme Court

July 12, 2011 | by Broussard, David & Moroux

The Supreme Court insulated generic pharmaceutical companies from state failure to warn claims concerning inadequate labeling last week. The Court held that federal law preempted generic drug makers from consumer state law claims that assert generic drug makers’ failure to include adequate warning labels about possible side effects.

In its reasoning, the Court stated that generic drug companies have no choice but to comply with federal law and cannot be held liable when they fully comply with the FDA’s regulations regarding generic drug labeling. According to the opinion, federal law already requires generic pharmaceutical companies to use warning labels that are identical to their name-brand counterparts.

Preemption occurs when a state law conflicts with a federal law, rendering compliance with both laws a physical impossibility. Under the Supremacy Clause, federal law prevails and trumps state law. Due to the FDA’s extensively regulation of the drug industry, state failure to warn claims relative to drug side effects are often preempted by federal law.

Baycol Class Action

July 5, 2011 | by Broussard, David & Moroux

The U.S. Supreme Court revived a West Virginian state-class action lawsuit against Bayer Pharmaceuticals, the manufacturer of the cholesterol-lowering drug Baycol. The Supreme Court held that a Minnesota federal court exceeded its authority under the Anti-Injunction Act by banning a West Virginian state-class action suit. The federal court issued the injunction to prevent the West Virginian state-class action suit after it refused to certify a federal class of West Virginian plaintiffs. The federal court stated that the injunction prevented the West Virginian plaintiffs from relitigating already decided issues. The Supreme Court reversed the federal court’s ruling, holding that the Minnesota federal court had no authority to ban the state court suit because the state suit differed from the federal case and lacked a connection to the federal suit.

The Food and Drug Administration approved the cholesterol-lowering drug, Baycol, in the late 90s. Bayer quickly removed the drug from the market upon discovering its link to several dangerous side effects, including a fatal muscle breakdown disorder. When an individual is injured from prescribed medication, redress is sometimes available under a products liability claim.

New Iberia Plant Explosion and Absolute Liability

June 28, 2011 | by Broussard, David & Moroux

An explosion occurred from a chemical fire at a Multi-Chem Corp. chemical plant in New Iberia last week, causing neighboring residents to evacuate their homes. Police reported no injuries from the explosion or its aftermath. The explosion occurred in a facility that blends chemicals for oil field operations. The accident highlights the importance of safety and prudence by Louisiana proprietors who participate in ultrahazardous activities.

Louisiana law imposes absolute liability on individuals and corporations engaging in ultrahazardous activities. Louisiana Civil Code Article 667 holds a proprietor responsible for damage without regard to his knowledge or his exercise of reasonable care if the damage is caused by an ultrahazardous activity. The Code strictly limits the definition of an ultrahazardous activity to pile driving and blasting with explosives.

Under a theory of absolute liability, the injured party can recover by simply proving damages and causation, regardless of whether the proprietor was actually negligent. Therefore, absolute liability permits liability without negligence. Louisiana courts often attach absolute liability to the storage of toxic gas and crop dusting with airplanes.

Louisiana Distracted Drivers Aided by Lawmakers

June 20, 2011 | by Broussard, David & Moroux

Distracted driving remains a serious problem across America. Nonetheless, the Louisiana Legislature killed two bills targeting distracted driving in the state and approved a controversial bill permitting TV screens in the dashboard.

Pending Governor Jindal’s approval, the controversial “Dashboard TV” bill will become Louisiana law. Under Louisiana’s current law, television screens in vehicles must be behind the driver’s seat. The law will change to permit a split screen television screen in the passenger’s side of the dashboard, provided that the screen is not visible to the driver. Louisiana will join 38 other states with similar laws permitting the use of TV screens in the front seats of vehicles. The defeated legislation purported to prohibit the use of cell phones in vehicles and to ban the use of bright lights on interstates.