Broussard, David & Moroux, Author at Louisiana Lawyer Blog

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.

Slip and Fall Injuries: What must you prove?

March 21, 2011 | by Broussard, David & Moroux

Slip and falls are a leading cause of injury today in the United States. If an individual slips and falls in a public place and suffers an injury due to the fall, he may have legal rights. Slip and fall cases hinge upon whether the owner of the property had constructive notice. In other words, the condition must have existed long enough for the owner to reasonably know about the dangerous condition and to take precautions to prevent injury.

Louisiana’s slip and fall statute establishes a burden of proof which governs slip and fall claims against merchants. Under the statute, a merchant includes any individual selling anything in a fixed place. The plaintiff bears the burden of proving that the merchant knew about the unreasonable condition and that the merchant failed to take reasonable precautions in preventing the occurrence. The plaintiff must also demonstrate that the condition presented an unreasonable risk of harm and the risk was reasonably foreseeable to the merchant. Furthermore, in order for the plaintiff to recover, the merchant must have either created the risk or had constructive notice of the risk.

In determining whether the merchant took reasonable precautions, the absence of a cleanup procedure or safety policy is insufficient to prove a lack of reasonable care on the part of the merchant. Still, it is wise for merchants to have a policy for its employees to report spills and to clean up spills as quickly as possible because the existence of a policy may assist a merchant in defending itself in litigation. It is also important to note that Louisiana’s slip and fall statute does not apply to trespassers.

Lake Charles Offshore Accident Raises Questions about Safety Standards and Offshore Workers’ Rights

March 14, 2011 | by Broussard, David & Moroux

In light of a recent tragic offshore accident near Lake Charles, oilfield vessel operators need to be held responsible for their failure to provide safe working conditions to employees. According to The Daily Advertiser, federal authorities believe that the fatal accident occurred when an offshore worker fell while transferring from a vessel to a platform. Oilfield vessel operators often abuse their broad authority over employees, and workers who are seriously injured should not hesitate to seek legal counsel.

Maritime law applies to workers injured on navigable waters. Applicable maritime laws include the Jones Act or the Longshoreman Harbor and Workers Act. The Jones Act permits an injured seaman to recover for an injury that occurred as a result of his employer’s negligent operations or use of unseaworthy vessels. An individual may only recover under the Jones Act if he establishes seaman status. This is a highly fact-sensitive inquiry and largely depends on the facts surrounding the accident and the characteristics of the vessel. This inquiry depends on whether the worker is a member of the vessel’s crew or merely a land-based employee who happens to be working on the vessel. Generally, courts look to the total circumstances of the individual’s employment to make this determination.

If the Jones Act applies, a seaman may have three distinct claims. First, the seaman may be entitled to maintenance and cure from his employer if he is injured while “in the service of the vessel.” Maintenance is small daily compensation intended to provide food and shelter that the seaman would have received on the vessel. Cure creates an obligation for the seaman’s employer to provide medical treatment and related expenses until the seaman reaches maximum medical improvement. Second, the seaman may bring a claim against his employer in tort for the employer’s negligent acts or omissions which caused the injury. Finally, the seaman may sue the vessel’s owner if his injuries arose from a vessel’s unseaworthy condition.

Punitive Damages for Maritime Claims

March 7, 2011 | by Broussard, David & Moroux

Across the nation, courts are divided on the issue of whether punitive damages should be awarded in admiralty cases. While some courts have found punitive damages to be in unavailable in admiralty, some courts remain willing to award punitive damages under certain circumstances in a limited number of cases.

With respect to claims brought in Louisiana, Texas, and Mississipi, the U.S. Court of Appeals for the Fifth Circuit has ruled that punitive damages may be available in the right kind of case. In 1981, the Fifth Circuit held that punitive damages may be recovered under general maritime law when a ship owner acts with gross disregard for a seaman’s rights. Because the Fifth Circuit is controlling precedent in Louisiana federal courts, this favorable federal jurisprudence indicates the potential for punitive damages in the state.

The decision to award punitive damages is primarily a policy decision. Punitive damages are not determined by a plaintiff’s need for compensation but rather by the economic impact that the award would have in the general maritime setting. For example, expensive medical bills incurred as a result of the injury would not be perceived as a reason for an award of punitive damages; whereas, ensuring the promotion of safe working conditions across the maritime industry may suffice. Generally, punitive damages are only awarded as a means of deterrence.

Louisiana Evidence: Expert Witnesses

February 28, 2011 | by Broussard, David & Moroux

If you are hurt, an expert witnesses may play an important role in your case In personal injury cases, lawyers may hire expert witnesses to provide an expert opinion based on his professional knowledge and expertise. In a plaintiff’s claim for personal injuries caused by an automobile collision, for instance, the plaintiff’s attorney may hire a physician to evaluate the plaintiff’s injuries and to testify in court that the plaintiff’s injuries were caused by the negligent defendant. The judge or the jury will use this testimony to assess the plaintiff’s claims and to better allocate fault and damages among the parties in the suit.

An expert witness may testify in state court if he meets certain requirements provided by the Louisiana Code of Evidence , or in Federal Court, as articulated by the Federal Rules of Evidence. Under these rules, an expert witness may testify if the witness has special knowledge, skills or experience and if the testimony is relevant to the underlying facts in the case. An expert witness must base his testimony on reliable methodology, which typically means that the witness must meet the general standards of his profession. Additionally, the expert’s opinion must be more than a mere speculation; it must be supported by a proper factual basis and based on reasonable certainty.

LAFAYETTE ATTORNEY BLAKE R. DAVID TAKES ON DRUNK DRIVING AND WINS $29M FOR VICTIMS

February 21, 2011 | by Broussard, David & Moroux

A St. Charles Parish Louisiana jury sent a strong and unprecedented message to Veolia Water North America, LLC and its intoxicated driver Rodney Gonzales, by awarding $25,000,000 in punitive damages to the victims and their families of a drunk driving accident. After 8 days of trial, the jury found the defendants 100% responsible for the death of James Thistlewaite and the injuries of Jonathan Mouton.

The case arose out of a 2007 crash caused by an intoxicated Gonzales, a Veolia employee, operating a company vehicle at over 90 miles per hour, wrecking it on the Bonne Carre spillway (I-10) and abandoning the completely unlighted truck. Witnesses confirmed that the unlighted vehicle created a sudden and unavoidable emergency leading to a horrific crash and explosion. The jury also found that Veolia, a multinational company, negligently entrusted the company truck to Gonzales, whose substance abuse and poor driving record made him ineligible for a company vehicle under Veolia company policy.

The jury granted $3.5 million to Thistlethwaite for the conscious suffering he endured for eight days in the Baton Rouge burn unit until he succumbed to his injuries; $100,000 to his daughter, Pam for the loss of her father; and $500,000 to Mouton for post traumatic stress disorder and loss of income- for a total judgment of $29,100,000.

Louisiana Drunk Driving Accidents

February 14, 2011 | by Broussard, David & Moroux

Authorities are cracking down on drunk driving across the nation and in Louisiana . In 2009, the National Highway Transportation and Safety Administration (NHTSA) recorded the lowest number of drunk-driving fatalities nationally in nearly a half a century . In 2009, 10,839 people were killed in alcohol-related collisions. For statistical purposes, a driver is considered to be alcohol-impaired if he has a blood alcohol concentration (BAC) of .08 or higher.

Louisiana had 295 alcohol-impaired driving fatalities in 2009, a 13 percent decrease from 2008. Nationally, alcohol-impaired driving fatalities declined 7.4 percent from 2008 to 2009. The number of alcohol-impaired fatalities in Louisiana involving individuals under the age of 21 was 40, a 29 percent increase from 2008.

The 2009 national average for drunk-driving deaths was 3.5 fatalities per 100,000 people. The 2009 rate in Louisiana was 6.6 fatalities per 100,000 people, nearly double the national average. The 2009 national rate for drunk-driving fatalities involving individuals under the age of 21 was 1.6 fatalities per 100,000 people; whereas, Louisiana’s rate was 3 deaths per 100,000 people.

Nationally, seven out of ten individuals involved in drunk-driving accidents were hardcore drunk drivers. Hardcore drunk drivers are identified as drunk drivers with a BAC of .15 or greater, who have been arrested at least once and who are resistant to changing their behavior despite arrests, sanctions and education.

Whose Fault Was It: Comparative or Contributory Negligence?

February 7, 2011 | by Broussard, David & Moroux

Every accident is different: sometimes many people are responsible for the plaintiff’s injuries; other times, the plaintiff’s fault may have partially caused his injures. Comparative fault and contributory fault are general defenses a defendant may raise in an attempt to reduce the damages a defendant must pay. Contributory fault means that the plaintiff contributed to the wrongful act, injury, death or loss and traditionally served as a complete bar to recovery for the plaintiff. On the other hand, comparative fault is a system where courts allocate percentages to the parties involved in the suit based on each person’s fault.

Louisiana is a comparative fault jurisdiction.

Almost all U.S. jurisdictions have shifted away from contributory fault and have adopted comparative fault systems. Dependent on the jurisdiction, however, courts may apply a “pure” comparative fault system or a “modified” comparative fault system. Under a “pure” comparative fault system, the jury allocates damages based on each person’s fault and imputes a certain percentage of fault to each party. The plaintiff is not barred from recovery, even if the plaintiff is primarily responsible for his own injury. For example, if the plaintiff is 90 percent at fault, the plaintiff may still recover his 10 percent.

Louisiana Car Crash with Uninsured Motorist? : Are you covered

January 31, 2011 | by Broussard, David & Moroux

Uninsured Motorist (UM) insurance permits its holder to recover in an automobile accident if the party who caused the collision is underinsured or uninsured. A plaintiff may receive UM benefits in several ways. If you are in an accident in your vehicle with an uninsured motorist, you may receive UM benefits from your own carrier. Also, if you are a passenger in another person’s vehicle who has UM insurance and his vehicle is involved an accident with an uninsured motorist, you may be able to collect UM insurance from the driver’s UM as well as your own UM policy.

If you do not know whether your insurance policy includes UM insurance, you should call your insurance provider and inquire about your policy coverage. You should also request a declaration page, which will show the policy’s exact coverage and exclusions. As of January 1, 2010, Louisiana raised the required amount of minimum liability insurance. Today, an individual must carry at least $15,000 in minimum liability and a total of $30,000 in liability coverage for multiple individuals involved in the same accident. An individual must also now carry $25,000 worth of coverage for damage to another individual’s vehicle. This change is a substantial increase from the prior $10,000 minimum. In sum, Louisiana law currently requires all individuals to carry at least a 15/30/25 automobile insurance policy.

For further questions, contact Broussard, David & Moroux at 888-337-2323(toll free) or 337-233-2323 (local).

Deepwater Horizon update

January 24, 2011 | by Broussard, David & Moroux

The United States Department of Justice filed suit December 15, 2010 seeking civil penalties and billions of dollars in fines against BP and its eight partnering companies over the Deepwater Horizon Gulf Oil Spill.

The Government’s civil claims arise under the Clean Water Act and the Oil Pollution Act. The complaint alleges that the companies’ violation of several federal safety and operational regulations caused serious environmental damage. The Government seeks compensation for cleanup costs, environmental damage and damage to natural resources.

Under the Clean Water Act, the Government may seek civil penalties of $1,100 per barrel of oil spilled into the water. In certain circumstances, the Act also authorizes the Government to recover up to $4,300 per barrel spilled. In August, the Government reported a near 4.9 million barrels spilled into the Gulf of Mexico thus far, and this number may increase as investigations continue.