Wrongful Death

Federal Government Agrees to Settlement with Gulf-Polluting ATP Infrastructure Partners, LP

November 7, 2014 | by Broussard, David & Moroux

Operating in violation of both the Clean Water Act (CWA) and the Outer Continental Shelf Lands Act (OCSLA), ATP Infrastructure Partners LP (ATP-IP) has agreed to pay a $1 million civil penalty to settle a federal lawsuit over illegal discharges of oil and chemicals from an oil platform in the Gulf of Mexico.

The lawsuit, instituted by the United States, was resolved by way of joint judicial enforcement action involving the Environmental Protection Agency (EPA), the Bureau of Safety and Environmental Enforcement (BSEE), and the Justice Department.

In its complaint filed in the U.S. District Court for the Eastern District of Louisiana, the United States alleged that ATP-IP “violated Section 311(b)(3) of the CWA when oil and other pollutants were discharged into the Gulf of Mexico from the ATP Innovator.” Violation of this provision in the CWA opened up ATP-IP to possible civil penalties. The United States also urged that ATP-IP was liable for injunctive relief under OCSLA, “as the owner of the ATP Innovator … [for] hidden piping configuration [that] was being used to inject a chemical dispersant into the facility’s wastewater discharge outfall pipe to mask excess amounts of oil being discharged into the ocean.”

Products Liability in Louisiana under the LPLA

October 31, 2014 | by Broussard, David & Moroux

As Halloween approaches, I’m reminded of a story I was told growing up–a story that has spread like wildfire and survived the ages. It’s the story of a young child, happily trick-or-treating in his neighborhood and too fixated on his chocolate, sugary boon to care about any potential for harm. As the young child explores his neighborhood, bouncing from home-to-home, he approaches one residence that has opted to hand over candied apples to its trick-or-treaters instead of candy. The young child approaches the home, receives his candied apple in exchange for his promise not to “trick” and then scampers off to his next target home. Later that night, inspecting his bounty, the young child discovers a razor blade in his candied apple–a razor blade that, had he bitten down on it, would’ve caused him serious injury. Those of you reading this are tempted to relegate this story to “urban legend” status, a story designed to scare children into safer Halloween habits. However, I instead encourage you to think about this scenario as a basic, yet well-recognized example, of Products Liability law.

The area of tort law known as Products Liability deals with rights, duties, obligations, and standards associated with the distribution and safety of products. That is, manufacturers are liable for the personal injury or other damage caused by their defective product. Intuitive as it may sound, this was not always the case. Before Louisiana extended this right to injured plaintiffs–the right to seek remuneration for personal injuries caused by defective products–courts often denied injured plaintiffs’ claims due to the legal doctrine of “privity of contract.” Under this doctrine, courts conceived products liability to be a contractual matter, and recovery against the seller was rooted in contractual remedies. Accordingly, this “privity” required that the defendant-manufacturer be a party to the contract of sale in order to provide remedies outside of the law of contracts. Since manufacturers rarely sell their products directly to customers, but instead sell them to retailers who distribute them to the public, manufacturers were often shielded from liability.

Gradually, the conception that products liability was restricted to the realm of contracts started to erode. For example, the Restatement of Torts adopted a provision “providing limited strict liability of the manufacturer of a product for the personal injury damages caused by a defect in the product.” This approach to products liability was later adopted by the Louisiana Supreme Court in Weber v. Fidelity & Cas. Ins. Co. of NY, 250 So. 2d 754 (La. 1971), which provided for manufacturers’ strict liability in tort for their defective/injurious products.

The Gradual Expansion of Punitive Damages in Louisiana

October 20, 2014 | by Broussard, David & Moroux

“Sue early and sue often.” We hear this in society, in law schools, and among lawyers and laypeople alike when a loved one suffers injury at the hands of another. And rightfully so–the American legal system has always provided means for injured plaintiffs to recover for damages caused by wrongdoers. It’s a notion deeply embedded in our law and culture.

The idea is simple: An individual suffers harm due to the fault of another and we expect the wrongdoer to make the victim whole again. Luckily for plaintiffs, the United States boasts one of the most robust civil justice systems in the world, making it relatively easy for injured victims to recover for the wrongs committed by another. But this mantra–“sue early and sue often”–has questionable weight here in Louisiana. There’s no doubt that the impetus for this mantra reflects the idea that injured plaintiffs may recover a big financial payout from the wrongdoer. In law, this big “payout” comes in the form of “damages,” better known as the money owed to the plaintiff for breaching their legal duty.

In most jurisdictions, there are two major forms of damages: compensatory damages and punitive damages. Intuitively, compensatory damages are designed to “compensate” victims for what they’ve lost due to the injury and to place the injured party in the position he would have been in had the accident not occurred, and punitive damages are designed to punish the wrongdoer for the damage he caused. The two categories of compensatory damages, special damages and general damages, generally compensate injured parties for quantifiable expenses (i.e. medical bills) and non-quantifiable damages (i.e. mental anguish, pain and suffering) respectively. Unlike compensatory damages, punitive damages are those that are imposed beyond what is necessary to compensate the victim. Punitive damages are designed to deter the tortfeasor and others from similar conduct in the future–they’re “punitive” in nature, and therefore, they are intended to be a punishment.

Broussard, David & Moroux Holds Grand Opening for New Location in Downtown Lafayette

October 15, 2014 | by Broussard, David & Moroux

LAFAYETTE – Broussard, David & Moroux Law Firm held a grand opening ceremony on Wednesday, October 15th, in honor of their recent move to a new location. Their new offices are located in the heart of downtown Lafayette on the corner of Jefferson Street and Vermilion Street in the historic Moss Building (557 Jefferson Street).

A crowd gathered to help Fr. Hampton Davis bless the new building. A ribbon cutting ceremony and reception followed in conjunction with the Chamber of Commerce Business After Hours event. Guests were able to tour the newly renovated building and learn about the history of its presence in downtown Lafayette.

For the last 200 years, the site of the historic “Moss Building” was the epicenter of local activity in a growing Lafayette. Today, the Moss Building plays an important role, once again, as downtown Lafayette enjoys a renewed vitality. Blake David, partner at the law firm, says that “Broussard, David & Moroux was eager to invest in an opportunity to restore one of Lafayette’s landmarks and is committed to enhancing the downtown community so that it is a great place to live, work and play.”

From Contributory Negligence to Comparative Fault: A Remedy for Negligent Plaintiffs in Louisiana

September 26, 2014 | by Broussard, David & Moroux

Picture this unlikely scenario: An intoxicated motorist is driving his vehicle at speeds well in excess of the speed limit (let’s say, he’s traveling at 100 mph in a 35 mph zone). As the unsafe motorist approaches a downtown intersection, a jay-walking pedestrian begins to cross the street when it is clearly not her turn (the brilliant-orange “don’t walk” hand is flashing and unmistakable). She has her face buried in the daily newspaper and is wearing headphones, unaware of what’s happening around her. What happens next, as you might have expected, is that the speeding, drunken motorist collides with the inattentive pedestrian, causing her significant injuries and tens of thousands of dollars in hospital bills.

This hypothetical accident was intended to illustrate the legal problem of the “foolhardy” plaintiff–the individual who suffers an injury at the hands of another, though her inattentive, negligent behavior also has contributed to the damage. In layman’s terms, both the motorist and the pedestrian are at fault here. The driver should understand that operating a vehicle at high rates of speed while intoxicated is unsafe and endangers the public. Similarly, the pedestrian should know that she must obey traffic signals and should pay attention to her surroundings as she crosses the street. Thus, both the motorist and the pedestrian have a “duty” to act as a reasonably responsible driver and pedestrian respectively. Under this scenario, however, where both actors to this dramatic collision have breached their duties to act reasonably, causing this accident, who is responsible? Is the pedestrian permitted to recover damages (money) despite having negligently contributed to this accident and her resulting injuries?

Prior to 1980, Louisiana followed the traditional common-law approach to solving the issue of the “foolhardy plaintiff”–a plaintiff whose negligence contributed to his injury. This common-law approach was known as contributory negligence and operated as a total bar to recovery in a negligence action. While it sounds unduly restrictive of a plaintiffs’ ability to bring and maintain actions for injuries they suffered, this comparative negligence regime required more than just showing that the plaintiff contributed in some way to the injury–instead, the plaintiff had to be legally negligent. They must have had a standard of care (a duty), which, when breached, caused and contributed to their injury and was within the scope of foreseeable risk.

BP’s “Gross Negligence” Under the Clean Water Act: A Deeper Look

September 19, 2014 | by Broussard, David & Moroux

Almost two weeks have passed since Judge Carl Barbier handed down his blistering opinion apportioning a majority of the fault to BP for the 2010 Gulf oil spill. As a follow-up to last week’s article, which detailed Judge Barbier’s ruling, we aim to dig deeper: Judge Barbier found that BP’s “gross” negligence opens them up to enhanced civil penalties under the Clean Water Act (CWA). But what does this mean for BP? Was this the right result?

The Ruling

The thrust of Judge Barbier’s opinion was to apportion fault, or responsibility, for the harrowing 87-day oil spill which followed Deepwater Horizon’s explosion. As we noted in last week’s article, Judge Barbier found BP 67 percent at fault for the spill and reserved only 30 percent and 3 percent for Transocean and Halliburton, respectively. Importantly, and the subject of this week’s in-depth look at his ruling, Judge Barbier found that BP’s “gross negligence” and “willful misconduct” opens them up to enhanced civil penalties under the Clean Water Act. Under the CWA, where a “person” causes a hazardous oil spill in navigable waters of the United States, and where this spill is the “result of gross negligence or willful misconduct… the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” 33 U.S.C. §1321(b)(7)(D). As Judge Barbier notes, this enhanced penalty provision does not require any “specific level of corporate management,” but instead opens up enhanced penalties to entities who violate this provision of the Clean Water Act whether it’s the result of systemic, gross negligence or not.

Federal Judge Finds BP “Grossly Negligent,” Allocates Majority of Fault for 2010 Oil Spill to BP

September 12, 2014 | by Broussard, David & Moroux

In a recent ruling handed down in Federal District Court in New Orleans, Federal District Judge Carl Barbier assigned the majority of the responsibility to BP for the 2010 explosion of Deepwater Horizon. Judge Barbier found the discharge of oil to be the result of BP’s “gross negligence” and “willful misconduct” under the Clean Water Act, which subjects BP to enhanced civil penalties. The ruling found BP responsible for 67 percent of the blowout, explosion, and subsequent oil spill, while the remaining percentage was divided among Transocean and Halliburton at 30 percent and 3 percent, respectively.

“BP’s conduct was reckless. Transocean’s conduct was negligent. Halliburton’s conduct was negligent,” wrote District Judge Barbier in his 153-page ruling.

While it has been estimated that BP could face fines of up to $18 billion, the Judge’s ruling noted that BP cannot be held liable for additional punitive damages under general maritime law. Usually, general maritime law which permits the imposition of punitive damages for reckless, willful, and wanton conduct. However, due to a unique jurisdictional rule in Louisiana, Texas, and Mississippi, the imposition of punitive damages under general maritime law has been severely limited, though not entirely abandoned. Indeed, punitive damages are still available for reckless, wanton conduct in the Fifth Circuit, though, the bar is much higher. In addition to proving the defendant’s “reckless, willful, and wanton conduct,” an award of punitive damages must also demonstrate systemic recklessness. “The maritime rule in the Fifth Circuit is generally insufficient to visit punitive damages upon the employer. Rather, the conduct must emanate from corporate policy or that a corporate official with policy-making authority participated in, approved of, or subsequently ratified the egregious conduct,” the ruling states. In the absence of such a corporate policy, Judge Barbier found that BP cannot be held liable for punitive damages under general maritime law. BP plans to appeal the decision.

LSBA Installs Local Lawyer to 2014-15 Board of Governors

August 4, 2014 | by Broussard, David & Moroux

The Louisiana State Bar Association’s (LSBA) 2014-15 officers and members of the Board of Governors were installed June 5, in conjunction with the LSBA’s Annual Meeting in Destin, Fla.

Lafayette lawyer, Blake R. David, was installed by Louisiana Supreme Court Chief Justice Bernette Johnson as the Third District Member of LSBA’s Board of Governors. The Board of Governors is comprised of 22 volunteer leaders who are charged with fiscal responsibility for the LSBA and with administration of the affairs of the Association. The LSBA assists more than 22,000 members in the practice of law.

Blake R. David was raised in Lafayette and is a founding partner of Broussard, David & Moroux. Mr. David focuses on personal injury and wrongful death litigation with an emphasis on offshore/maritime, trucking accident, aviation, products liability, industrial accident, and automobile claims.

Drunk Driving Accident on Mississippi River Bridge Claims Two Lives

May 12, 2014 | by Broussard, David & Moroux

A man accused of drunk driving faces two counts of vehicular homicide and a 2nd DWI, among other charges, after he rear-ended a vehicle while driving on I-10 over the Mississippi River Bridge, killing two passengers. Three others were transported to the hospital and treated for injuries that were not life-threatening. The accident remains under investigation.

Lafayette Jury Awards $9 Billion in Punitive Damages

April 11, 2014 | by Broussard, David & Moroux

A jury in Lafayette has awarded $1.5 million in compensatory damages and $9 billion in punitive damages to a former user of the Actos diabetes medication after the jury determined that the drug was linked to the plaintiff’s bladder cancer. Both defendants, Takeda Pharmaceuticals Co. and Eli Lilly & Co., insists that their medication is safe and they plan to appeal the jury’s verdict. The plaintiff began taking Actos in 2006 to treat his Type 2 diabetes until 2011, when the U.S. Food and Drug Administration placed a warning on the medication’s labels stating that use of the drug for more than a year increases the risk of bladder cancer. The trial also featured Takeda officials destroying pertinent documents about the development and marketing of Actos, which prompted sanctions from U.S. District Judge Rebecca Doherty.