Products Liability

November: A Deadly Month for Private Planes

November 21, 2011 | by Broussard, David & Moroux

November has been a tragic month for air travel. Three separate private planes have already been in the headlines this month. The first plane crash, killed two Oklahoma State University coaches and all passengers on board. The second plane crashed in Arizona, tragically killing an entire family. The third plane crashed in Georgia, killing a married couple and their 24-year-old son. Federal investigators continue to search for the cause of these devastating crashes.

Private air planes pose unique aviation safety concerns. Compared to commercial pilots, private pilots often undergo less training. With less training, these pilots may lack the experience needed to adequately react to emergency situations in transit, such as unexpected extreme weather, wind gusts or a mechanical malfunction.

Another common problem that arises with private planes is mechanical failure or negligent plane maintenance. At times, mechanics and private plane manufacturers cut corners when it comes to ensuring that private planes are suitable for flight because these planes are not common carriers and typically carry less people than commercial airlines.

Expediting FDA Review: Good for Corporations; Bad for Consumers

October 24, 2011 | by Broussard, David & Moroux

Last week, the Senate proposed a bill purporting to accelerate the FDA’s review times for medical devices. The proposed legislation would relax current conflict of interest rules that apply to FDA advisers, reversing an existing law. Currently, federal law prohibits an expert with a financial stake in medical device companies or competitors from serving on an FDA advisory panel.

Congress implemented these conflict of interest rules to remove corporate self-interest from FDA advisory panels. But since the implementation of these rules, critics have alleged that the current law prevents the release of new medical devices to consumers. The new legislation could benefit consumers by shortening the waiting period for cutting-edge medical devices.

This proposed legislation could also have unintended effects. Most notably, the legislation could also increase the number of dangerous medical devices on the market, endangering the health and safety of patients as biased FDA advisors could lead to the release of medical devices without adequate testing or warning to consumers.

Colorado Food Poisoning

September 26, 2011 | by Broussard, David & Moroux

A Colorado-based melon farm issued a recall last week after its cantaloupes tested positive for listeria, a deadly bacteria. The contaminated cantaloupes have been linked to at least two deaths and 22 illnesses in Colorado and New Mexico. State authorities believe that this number could increase in more states pending test results.

In light of news of another bacterial outbreak linked to produce, it is no surprise that about 76 million Americans suffer from food poisoning each year. Food contamination can occur at any stage of food production. For this reason, farms, processors, food handlers and restaurants have a duty to adequately manage food products with care and to ensure that their products are safe for consumption.

Louisiana Medical Review Panel’s Findings Not Admissible

September 13, 2011 | by Broussard, David & Moroux

The Louisiana Supreme Court recently held in McGolthlin v. Christus St. Patrick Hosp. that a Medical Review Panel’s finding is not subject to mandatory admissibility when the Medical Review Panel exceeded its statutory authority by making its determination based on of a finding of credibility.

In Louisiana, a plaintiff suing for medical malpractice is statutorily required to appear before a Medical Review Panel. La. R.S. 40:1299.47 governs this procedure. The panel is comprised of three health care providers licensed to practice in Louisiana and one attorney.

Before the panel, both parties present their case and evidence. The panel then decides whether the allegedly negligent doctor breached an applicable medical standard of care. The statute requires that the panel’s finding must be offered into evidence in court.

The Court’s holding purports to ameliorate any inequity that may result when a medical review panel exceeds its statutory authority. Now, if the panel inappropriately makes a credibility determination, the panel’s decision will carry no weight in subsequent malpractice litigation.

Pearl River Toxic Water Exposure?

August 29, 2011 | by Broussard, David & Moroux

A recent untreated wastewater spill in the Pearl River killed thousands of fish. State officials are not certain how the contamination will impact the surrounding community’s drinking water; however, some officials are optimistic that the damage will not affect citizens because the Pearl River is not a source of drinking water for neighboring communities.

Nevertheless, the spill highlights the need to ensure corporations take adequate safety precautions when handling hazardous toxins in our communities. Groundwater and soil contamination pose serious long-term health consequences in affected communities. The exposure of even a small amount of a toxin can lead to cancer, neurological disorders, liver and kidney damage, immune system problems, and birth defects.

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.

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.

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.

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.