Broussard, David & Moroux, Author at Louisiana Lawyer Blog

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.

Vaccine and Autism: High Court speaks

June 13, 2011 | by Broussard, David & Moroux

In Bruesewitz v. Wyeth, the U.S. Supreme Court held that the National Childhood Vaccine Injury Act preempts all state law design-defect claims brought by plaintiffs seeking damages for vaccine-related injury or death against vaccine manufacturers. The National Childhood Vaccine Injury Act of 1986 is a statute that provides administrative remedies to individuals injured by a vaccine’s adverse side effects. The statute’s purpose is to create a no-fault compensation program for injured claimants. As a result, the statute insulates manufacturers from vaccine-related tort litigation and stabilizes the vaccine market. According to the Supreme Court, the Act eliminates manufacturer liability for adverse vaccine side-effects.

In Wyeth, parents sued a vaccine manufacturer after their daughter received the manufacturer’s DTP vaccine during her standard childhood immunizations and became disabled. After exhausting the National Childhood Vaccine Injury Act’s administrative remedies, the parents filed suit in state court, asserting that the manufacturer’s defective design of the vaccine caused their child’s disabilities. The Supreme Court ruled in favor of the vaccine manufacturer, holding that a plain reading of the National Childhood Vaccine Injury Act preempts all state law products liability claims.

Louisiana Legislature Kills Bully Bill

June 6, 2011 | by Broussard, David & Moroux

The Louisiana House of Representatives blocked House Bill 112, a bill purporting to provide a definition of “bullying” among school students. This bill sought to define prohibited acts under Louisiana’s current anti-bullying law. The bill stated that a bullying gesture must be motivated by “an actual or perceived characteristic, such as race, color, religion, ancestry, national origin, sexual orientation, gender . . . mental disability, or physical disability.” The sexual orientation provision drove most of the debate.

Louisiana has various laws providing protection from bullying. Louisiana law currently requires schools in certain parishes to implement policies that prohibit harassment and discrimination among students. In 2010, Louisiana enacted a statute criminalizing cyber-bullying. Louisiana’s cyber-bullying law criminalizes the “transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment or intimidate a person under the age of 18.” The law applies to both adults and children. Bullies who are 17 and older may be fined a maximum of 500 dollars and sentenced to prison for up to six months. Children, on the other hand, must undergo counseling.

Louisiana Employee Discrimination

May 23, 2011 | by Broussard, David & Moroux

A daunting question in employment discrimination litigation is whether Title VII’s anti-retaliation protection may apply to third party employees. In Thompson v. North American Stainless Steel, the Supreme Court addressed this very issue, holding that Title VII’s ban on workplace retaliation protects co-workers of discriminated employees under certain circumstances. Under Title VII, retaliation occurs when an employer unlawfully fires, demotes, harasses or in any other way “retaliates” against an individual because he or she complained of employment discrimination, filed a charge with the EEOC or participated in an employment discrimination proceeding.

In North American Stainless Steel, an employer fired a female employee’s fiancé after the employer discovered that the female employee filed a gender discrimination suit. The fiancée sued the employer under Title VII’s anti-retaliation provision for damages and back pay. Lower courts dismissed the fiancé’s claims, concluding that Title VII did not permit third-party retaliation claims. The Supreme Court reversed, holding that Title VII’s anti-retaliation protection extends to “any person with an interest arguably sought to be protected” by Title VII. In other words, a worker may file suit if his injury is directly related to the statutory prohibitions of Title VII, even if he is not the originally targeted employee.

Gulf Oil Spill: BP seeking dismissal of economic loss claims

May 16, 2011 | by Broussard, David & Moroux

After more than a year of accepting claims, BP has asked a federal judge to dismiss several economic claims . Several of these claims were brought by commercial fisherman, tourism-driven businesses, property owners and offshore workers. BP argues that the Oil Pollution Act of 1990 (OPA) is the only theory of recovery under which injured parties may recover economic damage. Accordingly, BP alleges that all other claims filed outside of OPA are preempted.

OPA is a federal statute that gives the federal government greater control in oil spill prevention and response. BP alleges that OPA requires economic loss claimants to first file an economic claim with the “responsible party” for the oil spill, prior to filing suit. Because the federal government designated BP as the “responsible party” in the Deepwater Horizon Gulf Oil Spill, BP asserts that all economic claims should have been filed with the Gulf Coast Claims Facility. BP believes that under federal preemption, OPA preempts any state law claims not filed in accordance with the federal law.