Mass Tort

May 3, 2017

Three Mexican States Ask U.S. Courts to Resolve Issues from 2010 BP Oil Spill

sea-1489887-1024x683 The United States judiciary is often called upon to decide upon large-scale international disputes. From the trials of foreign government officials for human rights violations to the trials of multinational corporations for environmental damage the world over, U.S. courts play a critical role in international dispute settlement. In a recent case, a number of the coastline Mexican states filed lawsuits against BP and the other companies involved in the drilling base’s failure in the U.S. District Courts. These lawsuits raised complicated questions of international law, federalism, and nuanced negligence law.

In April 2010, an explosion on BP’s Deepwater Horizon oil rig – an offshore drilling base 50 miles off the coast of Louisiana – resulted in a massive oil spill. The oil rig sank, causing a seafloor oil gusher to flow. Over nearly three months, millions of gallons of oil poured into the Gulf of Mexico while officials attempted to plug the hole. The oil spill caused environmental damage throughout the Gulf of Mexico. Coastal regions sustained particularly harsh damages, including accelerated shoreline erosion and wildlife deformation, among other ecosystem effects.

Lawsuits from three Mexican states – Veracruz, Tamaulipas, and Quintana Roo – were consolidated in the Eastern District of Louisiana in 2013 as a result of Deepwater Horizon’s multidistrict litigation following the 2010 oil spill. The Mexican states claimed five companies – BP, Transocean, Halliburton, Anadarko, and Cameron – were liable for negligence and violation of the Oil Pollution Act (“OPA”) as a result of the oil spill. The District Court granted summary judgment in favor of the co-defendants of the original lawsuit. The Mexican states appealed the District Court’s granting of summary judgment in favor of BP, Transocean, and Halliburton.

March 25, 2017

Mother Fails to Receive Damages from Pharmaceutical Companies After Giving Birth To A Child With Birth Defects

by Berniard Law Firm

pregnant-1-1431161-683x1024 While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

One case on appeal from the Eastern District of Louisiana involves such a situation. Lindsey Whitener (“Ms. Whitener”) had a son who was born both prematurely and with birth defects after she was prescribed metoclopramide in order to treat her nausea and morning sickness that she frequently experienced during her nine months of pregnancy. Ms. Whitener and her husband filed a lawsuit against a number of different pharmaceutical companies, and their main argument was that these companies had promoted the use of the drug to treat morning sickness, which was an “off-label” use. An off-label use means that a drug is prescribed for uses that are not approved by the FDA. The District Court dismissed the claims brought forth by the Whiteners because they failed to show that the defendants promoted these off-label activities. The Whiteners appealed the decision of the District Court, and the case went before the United States Court of Appeals for the Fifth Circuit.

Ms. Whitener began experiencing morning sickness very early on in her pregnancy and was prescribed the metoclopramide shortly after she began to complain of the sickness to her doctor. Metoclopramide is a generic version of the drug Reglan, and Reglan does not list morning sickness as an FDA approved the use. In 2010, the Whiteners sued PLIVA, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries, Ltd., Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc., and Schwarz Pharma, Inc. PLIVA, Barr, and Teva manufactured metoclopramide; and Alaven, Meda, and Schwarz manufactured Reglan. The Whiteners first claimed that the defendants had failed to warn them about the dangers of using metoclopramide during a pregnancy. Some of the defendants however relied on the Supreme Court decision from PLIVA, Inc. v. Mensing which held that, “because federal law requires generic drug labels to be the same at all times as corresponding brand-name drug labels, state-law inadequate warning claims based on a generic drug manufacturer’s failure to provide a more adequate label are preempted.” HPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Essentially, this means that when the state and federal drug laws conflict, the federal drug laws will preempt or replace the state law. Ms. Whitener’s state law claim that the defendants had failed to warn them about the dangers of the drug conflicted with the federal law and the District Court thus held that the state law claim was preempted.

February 25, 2017

Mass Tort Damages Upheld On Appeal In Harvey, Louisiana

by Berniard Law Firm

Bringing a mass tort claim is an extremely complicated task, even for the best of lawyers. Luckily, the attorneys for a group of Plaintiffs in a suit against Evans Harvey Corp. and its insurer, Lexington Insurance Co., knew exactly what they were doing. In the end, each Plaintiff was awarded damages ranging from $2,500 to $13,500. The following discussion serves as an example of one of the rare successes in the mass tort context.

On March 31, 1998, Evans Harvey Corp. was doing maintenance work on a drum reconditioning unit at its facility in Harvey, Louisiana. During the work, there was a chemical release for approximately ten minutes. In those ten minutes, multiple people were exposed to hydrogen chloride and hydrogen sulfide released into the air in the immediate and surrounding area. As a result of the exposure to the chemicals, many people reported itchy eyes, trouble breathing, nausea, vomiting, and itchy skin.

Ten people exposed to the chemicals brought suit against the corporation. Three of them were never seen by a doctor and treated themselves with over the counter remedies, while the remainder were treated either on-site or at a nearby hospital. After being certified as a class for a class-action lawsuit, the case was tried before a district court judge in July 2013. At trial, the Plaintiffs won their case and were awarded between $2,500 and up to $13,500 plus special damages for each Plaintiff. In September 2013, three additional Plaintiffs who were not in the original class were awarded damages.

February 20, 2017

Fisherville Neighborhood Residents Learn What It Takes to Bring a Continuing Tort Claim

by Berniard Law Firm

If you are the victim of a tort, sometimes the damages can have lasting effects. For example, a toxic chemical spill can have negative health effects on anyone drinking contaminated water far beyond the time and date of the actual spill. There is a legal doctrine called continuing tort theory that can provide some relief in such a case. However, some Fisherville neighborhood residents in Lake Charles, Louisiana recently discovered in their negligence suit against Union Pacific Corporation (“Union Pacific”) that continuing tort theory does not apply to injuries suffered from a past accident where reasonable remedial efforts have been made. The Louisiana Third Circuit Court of Appeal affirmed the Trial Court’s decision to grant Union Pacific’s motion for partial summary judgment, thereby dismissing the case.

The circumstances surrounding the lawsuit dealt with a chemical spill that took place on April 20, 1983. A railcar carrying approximately 11,000 gallons of perchloroethylene (PCE) released the chemical through an open valve while parked at the Lake Charles Rail Yard. Southern Pacific Transportation Company (“Southern Pacific”), a predecessor-in-interest of Union Pacific, owned the rail yard and railcar; PPG Industries (“PPG”) owned the chemicals. Southern Pacific and PPG cleaned the area, allegedly eliminating all of the PCE from the ground surface level by mid-July 1983. However, roughly 1,150 gallons of PCE remained underground and cleaning and remediation efforts continued through monitoring and extraction of the groundwater and through the installation of monitoring wells at the release site and in the neighborhood.

On March 3, 2003, five lawsuits were filed and consolidated into this case. At the Trial Court level, the Plaintiffs initially experienced success when the Trial Court granted them class action status. The Trial Court also stated that the Plaintiffs could pursue their claim on a continuing tort theory. However, the Defendants filed a motion for partial summary judgment on April 28, 2014, in which they sought dismissal of the claim based on prescription and the Plaintiffs’ alleged failure to provide discovery responses. The Trial Court granted the Defendants’ motion for partial summary judgment. Subsequently, the Plaintiffs appealed the decision.

December 3, 2016

Louisiana Supreme Court Allows Class Action for La. Rev. Stat. § 22:1871 (Balance Billing Act) Violations

by Berniard Law Firm

hospital-s-corridor-1631146-1-1024x765 Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act. See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits, the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.” As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

July 23, 2016

5 Things You Need to Know About Prilosec and Nexium Lawsuit Claims

by Berniard Law Firm

Prilosec and Nexium Lawsuit Claims
As medications known as PPIs become more and more common and readily available on the open market, the number of medication related injuries, complications and side effects also increase. Nexium and Prilosec have been known to cause serious medical conditions such as heart attack, kidney failure, and bone fractures, and prolonged use can increase the risk for these injuries dramatically. Currently, the number of law suits against the manufacturer of Prilosec and Nexium, AstraZeneca, continues to rise each day as more and more individuals are negatively affected by the drugs the company produces. Here are five things you need to know about these lawsuits against AstraZeneca and Prilosec/Nexium claims.

First, it is important to know that there are many different claims that an individual could have as a result of the use of Nexium or Prilosec. The claims against AstraZeneca have ranged from production of dangerous or defective medications, to insufficient labels warning of the dangers of the drugs, to even illegal marketing strategies which include hiding side effects and dangers from the public. If a loved one or family friend has died after complications arising from the use of Prilosec or Nexium, then a wrongful death claim could also be brought against the company.

Second, as Nexium is available over the counter and without a prescription now, the number of users, and therefore lawsuits, will continue to rise. This also means that a greater number of side effects and a greater variety of complications will also start to emerge. Thus, it is important to seek legal and medical advice if you are experiencing any sort of side effects from either Prilosec or Nexium, and not just the hallmark issues of kidney failure, heart attack and bone fractures. As more studies are being done, more and more side effects are being discovered and attributed to the medications. Be sure to consult a physician as well as a lawyer when preparing to file a lawsuit.

July 17, 2016

Ovarian Cancer and Baby Powder Lawsuits: 5 Things You Need to Know

by Berniard Law Firm

baby powder ovarian cancer Fortune 500 company, Johnson & Johnson is in hot water over recent lawsuits contending that the medical device, pharmaceutical and consumer goods manufacturer was aware of an increased risk of ovarian cancer in women who regularly used talcum powder on or near their genital region, but failed to disclose those dangers to its Baby Powder consumers. The company’s Baby Powder product is talcum powder, or talc, based. Amidst the potential and pending lawsuits, which now number over 1,000 and span across the nation, arising against Johnson & Johnson, we broke down five things you should know about the recent and potential claims.

1. The Potential Link Between Talcum Powder and Ovarian Cancer Was Published 45 Years Ago

In 1971, British researchers initially linked talcum powder to ovarian cancer when they published a study conducted on 13 tissue samples from ovarian tumors. Over 75 percent of the tumors tested contained talc particles. Since the initial finding, multiple published studies validated this association. Some existing research contradicts these findings, but the majority of studies corroborate these findings.

July 13, 2016

Second Circuit Affirms Economic Award after Water Supply Contaminated by Levee District

by Berniard Law Firm

Arguably the most important thing for human health besides air is available and clean water. When people behave carelessly, others can be harmed. A mistake with something as valuable as the water supply can cause any number of injuries to those who rely upon it. Negligence occurs in law where a person or company causes some sort of harm to another by failing to carry out some duty that person or company owes to the public. Louisiana is a comparative fault state, meaning that when multiple parties are found by a court to be responsible for some injury, the court will divide the total amount to be paid by the parties in proportion to how much each party’s actions make that party at fault for the incident. None of those held responsible can escape paying its share just because someone else is more to blame. The court will compare the actions of each person or company to determine who is more to blame when some harm occurs.

The Louisiana Second Circuit Court of Appeals ruled on a recent and complex case concerning multiple parties involved in such an accident. In 2006, the Walnut Bayou Water Association was repairing a water supply system that provided water to rural customers. These repairs involved temporarily emptying pipes. Nearby and unknown to Walnut Bayou, employees of the state Fifth Levee District were drawing water from one of these lines to dilute acid used to control weeds. The combination of this pressure on the water system caused the herbicides to be released directly into the water supply. Neither organization had installed devices that would have prevented such a flow into the water lines. Five days later, the poisoned water supply became evident to the several hundred customers of Walnut Bayou. In response to the contaminated water, the water supply was shut off in the area for eight days. Many of those in homes affected by the contamination and lack of water supply combined to sue both organizations as well as their insurers for the contamination and the failure to supply the usable water they were paying for.

Several years later, it was found that not all of the people on the water supply received the contaminated water. Those who had been proven to have gotten contaminated water were involved in a settlement, leaving only those who had been “upstream” of the released contaminants in the lawsuit. These affected customers brought claims for property damage caused by the lack of water, additional costs they suffered in obtaining water from other sources during the shortage and afterward, and for emotional trauma caused by the fear of knowing their water might have been poisoned. Many of these people refused to use the tap water to drink or cook for fear it might still carry traces of the toxic substances. The trial court found that these people would only be able to receive money for the economic losses they suffered. In order to determine how much each person would receive if the court found the organizations responsible, the court chose five of those plaintiffs at random to try their cases. At the end, the court determined that $600 should be awarded to each of the affected people remaining in the lawsuit, and that the Levee district was 75 percent to blame for what had happened, and so would pay most of the costs.

July 10, 2016

5 Things You Need to Know About Essure Birth Control Device Lawsuits

by Berniard Law Firm

1. What is Essure?

Essure Permanent Birth Control Device is a non-invasive permanent sterile alternative. Essure has been implanted in over half a million women. Essure is “nearly 100 percent” effective in preventing pregnancy. The 10 minute procedure consists of placing two four-centimeter, metal coils made of stainless steel in the inner coil, and a nickel Titanium (nitinol) expanding out coil. These metal coils are inserted in the woman’s fallopian tubes, causing scar tissue to obstruct the tubes and permanently prevent fertilization. It takes about 3 months for the scaring to fully develop.

2. When did the FDA approve Essure?

July 9, 2016

Everything you need to know About Taxotere Lawsuits

by Berniard Law Firm

taxotere lawsuits
If you have been diagnosed with cancer or know someone who has been diagnosed with cancer, chances are you have heard of the drug Taxotere. The drug is manufactured and marketed by the company Sanofi-Aventis was first approved by the FDA in 1996. Sanofi-Aventis is a major pharmaceutical company based out of France that does business all over the world. The drug that they manufacture, Taxotere, is a popular drug used in chemotherapy across the United States. Specifically, it is utilized in the majority of breast cancer treatments, as well as other forms of cancer. Taxotere is administered intravenously and is meant to slow the cancer cell growth in patients. When Taxotere first became available, it was the go to treatment for women with breast cancer. Approximately 75% of breast cancer patients were prescribed Taxotere to fight the growth of the cancer. Chemotherapy is never a fun thing for anyone, but Taxotere made chemotherapy even harder on hundreds of thousands of women.

As you also may be aware of, chemotherapy and Taxotere are accompanied by some pretty detrimental side effects. Some common side effects include your typical nausea, vomiting, fatigue, pain, etc. Also, one of the most common side effects that is associated with chemotherapy is hair loss. Many chemotherapy patients will experience some sort of hair loss while being administered Taxotere. Although this is common in chemotherapy, Taxotere is associated with the permanent loss of hair without the ability to grow back post-chemotherapy. Usually in chemotherapy hair loss is not permanent, but rather temporary during the chemo and radiation treatment. However, many patients using Taxotere experienced permanent hair loss after being administered the drug.

This permanent hair loss is a very serious and unexpected result of the drug Taxotere. The condition of permanent hair loss as a result of Taxotere is referred to “alopecia.” Alopecia can have a severely adverse impact on the morale of the patient, as well as the patient’s families. Although Sanofi is a multinational company and marketed Taxotere in other countries with the warning of potential permanent hair loss, customers in the United States were not given this important warning. As a result, many patients were being administered Taxotere without their knowledge that they could be at risk for permanent loss of hair. In 2015, the FDA issued a warning statement that “cases of permanent alopecia have been reported” after being administered Taxotere. Before this FDA warning, Sanofi’s label in the United States indicated that a patient’s hair will generally grow back after completing the treatment. However, a great number of women in the United States have already felt the negative impact as a result of Taxotere not giving a clear warning of alopecia to consumers.