Broussard, David & Moroux, Author at Louisiana Lawyer Blog

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.

New Orleans Train Crash

May 9, 2011 | by Broussard, David & Moroux

In April, three train accidents occurred within a 24-hour period in Louisiana. The first collision occurred in Jefferson Parish, when a driver, attempting to beat an oncoming Amtrak passenger train, collided with the train. Tragically, the driver was killed in the accident. The second collision involved another Amtrak train that collided with an 18-wheeler near Slidell and derailed off the tracks. Fortunately, the passengers, crew, and 18-wheeler driver only suffered minor injuries. The third collision occurred in Calcasieu Parish, where an Amtrak passenger train struck and killed a woman walking over the railroad tracks. The accidents raise serious concerns about train safety in the state.

Louisiana is ranked fourth in the nation for automobile-train crash fatalities. Louisiana has statutes in place to promote safety at railroad crossings. La. R.S. § 32:171 requires drivers approaching a railroad crossing to obey railroad signals and to stop at least 15 feet from railroad tracks when a signal indicates an approaching train. An individual who violates the statute may be subject to hefty fines and safe driving courses. Train operators are also required to use horns to warn vehicles prior to approaching railroad crossings and to operate trains with the utmost degree of safety and diligence. These statutes establish a duty of care for both train operators and drivers.

In cases involving train accidents, courts apply a negligence analysis. If a train carries passengers, the train is considered a “common carrier” under state law. A common carrier owes a heightened duty of care to its passengers. Under Louisiana jurisprudence, a common carrier should exercise the highest degree of care, skill, and diligence in transporting passengers. If a common carrier breaches this duty, it may be held liable for even the slightest negligence.

Louisiana’s Dangerous Drivers Targeted

May 2, 2011 | by Broussard, David & Moroux

The Louisiana Legislature’s 2011 Regular Session convened on April 25. In the midst of this fiscal session, the Legislature introduced three new state-wide bills relative to distracted driving, including a potential ban on the use of handheld cell phones in automobiles. Last session, Governor Jindal signed into a law a ban on texting while driving. This ban designates texting while operating a motor vehicle a primary offense and permits officers to stop drivers to issue fines for violating the law.

The new bills introduced this session reflect a nationwide trend to stop distracted driving in America. First, House Bill 337 requires drivers to use a “hands-free device” when talking on a cell phone in a vehicle. If found violating the law, drivers may face significant fines. Second, House Bill 338 seeks to prohibit drivers from using handheld wireless telecommunication devices, including computers. A violation would result in a $125 fine. Last, House Bill 387 purports to strike and replace an existing state law that only permits the use of video screens in a vehicle if the screen is located behind the driver’s seat. This new legislation permits a split-screen in the front seat, as long as the split-screen is not visible to the driver.

Recent studies suggest that distracted driving is equivalent to drunk driving, often resulting in tragic accidents and injuries that could have been avoided. Across the United States, states continue to crack down on the use of electronic devices in motor vehicles. Last month alone, a Massachusetts teenager and a Minnesota mom were criminally charged after their texting while driving resulted in serious accidents causing significant injury. In addition to criminal charges, individuals who cause damage when texting while operating a motor vehicle may also face civil damages, including tort liability.

Wal-Mart Law Suit Update

April 18, 2011 | by Broussard, David & Moroux

The Supreme Court recently heard Wal-Mart v. Dukes, the largest class action lawsuit in American history. Over 1.5 million female Wal-Mart employees filed a systemic class-action sex discrimination lawsuit against Wal-Mart, alleging that they were part of a system of discrimination where they received lower wages than their male counterparts and were passed over for promotions in favor of male employees. The women seek backpay and punitive damages as well as a change in Wal-Mart’s employment practices. The Supreme Court is tasked with determining whether Wal-Mart can still receive a fair trial.

The Equal Employment Opportunity Commission defines systemic discrimination as a form of intentional discrimination that occurs when employers have a pattern, practice or policy that broadly affects an industry, profession, company or geographic area. Wal-Mart contends that it is impossible for its employees to allege a case of systemic discrimination based on its company employment statistics. They claim that the alleged pay discrepancies only exist as a result of employee merit and not a discriminatory policy.

A class action lawsuit is a civil lawsuit brought on behalf of many people who have been harmed by the same defendant in a similar way. In order for a class to become certified, one injured plaintiff must serve as a class representative, and the class representative must demonstrate that a legal claim exists against the defendant on behalf of all of the plaintiffs in the class. A judge may deny certification if the class is too large or if the series of harms and claims are too diverse.

In Dukes, the primary issue is whether Wal-Mart’s right to due process is at risk in defending itself against 1.5 million employees. If the Court upholds the certification, the Court will set a new precedent for class action litigation. A decision for the plaintiffs may increase the propensity of large class-action lawsuits against corporations in the future.

Many corporations, including Microsoft, General Electric and Costco, filed amicus briefs in support of Wal-Mart. These large corporations fear that a judgment for the employees will seriously damage their business because the ruling would authorize larger class-action awards and settlements in the future. According to reports of the oral argument, a majority of the Justices were sympathetic to Wal-Mart’s position and appeared skeptical that the large corporation could still receive a fair trial. A decision on the case is expected in late June.

Deepwater Horizon Update: Blowout Preventer Malfunction Discovered

April 11, 2011 | by Broussard, David & Moroux

The U.S. Department of Interior recently released a report showing the results of a federal investigation of the Deepwater Horizon blowout preventer (BOP). The Department of Interior hired a team of forensic experts to salvage the BOP from the gulf floor and to study the cause of its malfunction. According to the report, the BOP failed to close properly when a drill pipe buckled inside the device.

The report suggests that Cameron International, the company that built the Deepwater Horizon BOP, failed to design the BOP to handle extreme emergency situations. Cameron claims that they built the BOP pipe in accordance with industry standards.

Cameron’s compliance with industry standards may not insulate the contractor from liability. Government regulations only establish a minimum duty of care. In the past, courts have been reluctant to allow corporations to assert compliance with industry standards as a defense to products liability claims. For example, in a case involving asbestos and the Louisiana Products Liability Act, the Louisiana Fourth Circuit held that “mere compliance with federal standards or any other safety standards without more is not prima facie proof that a product is not dangerous or is no longer dangerous.” Asbestos v. Bordelon, Inc., 726 So. 2d 996 (La. App. 4 Cir 10/21/98). Similarly, in light of the Supreme Court’s recent holding in Williamson v. Mazda, companies still have a duty to take necessary safety precautions in designing and constructing products, regardless of minimum government safety regulations.

The Department of Interior’s findings could dramatically alter the allocation of liability among the responsible parties in the spill. The study’s results could affect the distribution of civil penalties between BP and its contractors. Furthermore, the findings may also shift the focus of the federal government’s ongoing criminal investigation into whether the parties’ willfully violated environmental and maritime laws.

Oil and gas companies rely on BOPs as the last resort in stopping uncontrollable wells. The report suggests that the Deepwater Horizon rig’s BOP failure may not be an isolated incident, leaving open the possibility that all BOPs may similarly malfunction in the event of a well blowout. According to The Times-Picayune, members of Congress have called for a study of all current BOPs in operating gulf wells.

Williamson v. Mazda –Recent Supreme Court Seatbelt Holding Opens New Doors for Products Liability Plaintiffs

April 4, 2011 | by Broussard, David & Moroux

In Williamson v. Mazda, the Supreme Court ruled that a deceased woman’s relatives could sue her vehicle’s manufacturer for failing to install lap-and-shoulder belts, even though the manufacturer had complied with all relevant federal safety regulations. The decedent, Mrs. Williamson, was killed while riding in the backseat of a Mazda minivan and wearing a lap belt, the only available seatbelt in the backseat. The other passengers with lap-and-shoulder belts survived the accident.

In the case, Mazda raised its compliance with all federal safety regulations as a defense. The Supreme Court ruled that federal safety regulations do not preempt state law products liability claims. Rejecting Mazda’s defense, the Court reasoned that an automaker still has a duty to take safety precautions in designing and constructing vehicles

In Louisiana, the Louisiana Products Liability Act (“LPLA”) applies to all products liability claims made after September 1, 1988. To recover under the LPLA, a plaintiff must sue a company that meets the LPLA’s statutory definition of a “manufacturer.” The plaintiff must also prove that a product’s defective condition was the actual or proximate cause of his injury and that the product was unreasonably dangerous. Additionally, the plaintiff must prove that the product was used in its reasonably anticipated use.

EPA’s Cost-Cutting Boiler Regulations Pose Obstacles to Toxic Tort Litigants

March 28, 2011 | by Broussard, David & Moroux

The Environmental Protection Agency recently scaled back its environmental rules for incinerators and boilers. Under the new regulations, companies using industrial boilers and incinerators will now spend less to prevent air pollution. According to The New York Times, companies operating large boilers that burn renewable fuels would not be required to install certain technologies and only maintenance would be required for smaller boilers. These revamped regulations are designed to promote job growth.

The EPA claims that these new regulations will sufficiently regulate corporations and also prevent air pollution. These new rules are expected to cut companies’ costs by $1.8 billion each year. Unfortunately, a less regulated industry will result in less cautious behavior across the industry. These relaxed regulations also present obstacles to toxic tort litigants in the future.

Because statutory and administrative controls on toxic substances play a role in toxic tort cases, these new lenient regulations present new challenges in toxic tort litigation. A toxic tort is an injury caused by a toxic substance that poses an immediate or future unreasonable risk. Typically, toxic tort injuries are not immediately noticeable and have a long latency period. Industry boilers and incinerators are commonly used by refineries, chemical plants, hospitals and churches to generate steam and hot water for heat and electricity. They are also the second-largest source of toxic mercury emissions in the United States. Even at low levels, toxic mercury emissions may eventually cause serious damage to the brain and senses.