Product Defect

November 26, 2013

Parish Judge Affirms Denial of Class Certification in Oil Spill Suit

A class action suit occurs when a group of people bring a case together as representatives of an entire class of people who are similarly situated. In order to bring a class action in Louisiana, a judge must certify the class. This means that the class of plaintiffs meets the requirements for their class action to go forward. One of the requirements a class must meet to be certified is that it must have what is known as numerosity. In Louisiana numerosity is defined as meaning that the class is too large for the individual plaintiffs to pursue their claims separately or it is too large for the individual plaintiffs to be joined to the case in a practical manner. The following case illustrates what happens when questions about numerosity arise in a class action.

On May 15, 2009 a vacuum truck owned and operated by Environmental Services, Inc. was driving on Louisiana Highway 27 between Singer and DeQuincy when a valve broke and 300-500 gallons of motor oil leaked out onto the highway. The leak was discovered when the truck arrived in DeQuincy, and the impacted portion of the highway was closed within approximately 15 minutes of the truck’s arrival.

The plaintiffs seeking to certify this class action brought suit alleging that they suffered physical injury due to inhaling the fumes from the spilled motor oil and also alleged that they suffered damage to their vehicles and livestock in their vehicles from driving over the spilled oil. The plaintiffs sought to certify a class that included everyone who drove over the spilled oil before it was cleaned up.

November 18, 2013

Understanding Premises Liability in Louisiana Injury Cases

by Berniard Law Firm

Over the years, major advances in the field of transportation have made it relatively easy for people to move about the country. Many people find themselves in indefinite living situations, changing jobs, going to college or maybe just moving to a new area. In these types of circumstances, ownership may not be all that intriguing or feasible. Luckily, on the other end of the spectrum, there are usually handfuls of owners looking to rent or lease out their property. This perfect alignment of supply and demand leads to frequent property agreements. Although one hopes that everything runs smoothly throughout the occupation, inevitably sometimes accidents or problems may occur.

One specific type of problem that can be faced deals with the question of who is responsible for injuries or damages that result from a defect in the premises in which someone is not the owner. It is also important to note that agreements involving homeownership are not the only circumstances in which these particular problems may arise. Alternatively, one may find themselves injured somewhere they are visiting or momentarily staying at such as a hotel, museum, or baseball game.

In the state of Louisiana, in order to recover under the theory of premises liability, the plaintiff has the burden of proof. The plaintiff would likely be the one who does not own the premises and has been injured in some way. The plaintiff’s burden under Louisiana law consists of proving four things: 1) that the injuries were caused by a defect in the defendant’s premises that created an unreasonable risk of harm to the plaintiff; 2) that the defendant knew or should have known of the defect; 3) that the damage could have been prevented by the use of reasonable care; and, 4) that the defendant failed to exercise such reasonable care.

November 14, 2013

Louisiana Court Says Widow of Paper Mill Employee in Mansfield Unable to Recover Damages

by Berniard Law Firm

The appellate court has affirmed a summary judgment dismissing a widow’s case against Stebbins Engineering and Manufacturing Company. She filed suit after her husband died while he was working at International Paper Company in Mansfield, Louisiana.

An employee died when, while attempting to repair a valve on the platform surrounding a white water tank/tile chest, he fell into the tank. Pulp debris around the opening cover may have been dislodged due to overflow before his fall. Thus, the widow brought suit against the manager of the Mansfield paper mill, International Paper, and Stebbins, which designs and constructs the tanks. Over 20 years ago, it manufactured the tank that the deceased fell into, and Stebbins also inspects tile chests at some of its locations, though not at the Mansfield mill.

Whether the widow had a case or not turned on the legal duties of Stebbins. The widow argued that inspections at other plants provided notice to Stebbins that some of the tile chests were over-pressurized and overflowing, which caused the dislodging of the access opening covers, thereby endangering International Paper employees working around the tanks. She argued this created an obligation for Stebbins to inform International Paper employees about the safety issue.

November 4, 2013

The Limited Nature of Appeals Court Highlighted in New Orleans Case

by Berniard Law Firm

Appeals courts are unique in two major respects: evidentiary requirements and standards of review. When cases are appealed, the evidentiary requirements are different at the appeals level than they were at the trial court level. For example, often the appeals court’s factual inquiry is limited to “the record,” or the facts as explained by the trial court. The appeals court cannot look beyond what is in the record or what is argued in front of them, even if they would like additional facts. Occasionally, the appeals court can look to evidence that is introduced by the parties, but many times the standard of review requires that the appeals court cannot look at evidence at all.

In addition, the standard of review depends on the type of legal question presented. The two major standards of review in Louisiana are manifest error and de novo review. In manifest error review, the appeals court simply determines whether the lower court’s outcome is probable, or lacks manifest error. They consider the facts in the record and determine if the outcome was probable given the facts. The trial court has a great deal of deference because they access the credibility of the witnesses and deal with complex evidentiary rules. The second type of review, de novo review, does not rely on the lower court. Instead, the appeals court can consider the evidence in the record as if it were a new trial. There is no need to consider what the lower court did with the information because the appeals court makes its own independent decisions. Often, however, the appeals court is still limited to the evidence in their record.

A recent case arising from the First City Court of New Orleans to the Court of Appeals for the Fourth Circuit for the State of Louisiana outlines these concepts. In that case, an individual contracted with a building contractor to make improvements on his house. The individual argued that the contractor performed poorly, and therefore did not fulfill his half of the contract, even though the contractor had already been paid. The lower court granted an exception of prematurity, which, in this case, meant that the party brought the case too early because there was a stipulation in the contract that required mediation before the parties could bring the case to court. Under the exception of prematurity, the appeals court reviews the lower court under manifest error. However, when the parties argued their case at the court of appeals, neither party put the actual contract into evidence at the appeals hearing. Since appeals courts have strict evidentiary requirements, the court could not consider what the contract actually stated. Therefore, it struck down the exception of prematurity.

October 15, 2013

Landlord Out of Pocket $14k Due to the Negligence of His Repairman

by Berniard Law Firm

Under Louisiana law, if the owner of a defective ‘thing’ knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect of the ‘thing,’ if the damage could have been prevented by exercising reasonable care, and if the owner failed to exercise such reasonable care, he is liable for the unintentional harm caused by his negligence. Negligence is a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances.

In a recent case, sheetrock from the kitchen ceiling of a rental house owned by John F. Luck in Shreveport, LA, struck two visitors, knocking them to the floor. The injured pair brought the suit alleging that the negligent home owner, Luck, should have been aware of the condition of the ceiling in the rental home. The victims argued that since Luck should have been aware of the decrepit ceiling, he could have fixed the ceiling, thereby preventing the injuries now sustained by the pair. The court of appeals ultimately affirmed the decision of the district court, holding Luck liable for the personal injuries through a negligence theory of vicarious liability known as respondeat superior.

Respondeat superior is a legal doctrine which holds the employer liable for the actions of his employees, when performed within the course of their employment. In this case, Luck’s maintenance supervisor, Rodney Fleckenstein, worked for Luck as a repairman for almost five years and eight months. Fleckenstein had gone into the rental home on three separate occasions prior to the collapsing sheetrock incident, to repair and replace various utilities within the home. Both the district court and court of appeals found that Luck should have known of the disrepair of the kitchen ceiling through Fleckenstein’s casual observation of the home when he went in to do his repairs.

September 17, 2013

Proper Service Essential for Successful Legal Remedy

by Berniard Law Firm

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

September 14, 2013

The Role of Court-Appointed Experts in Complex Litigation

by Berniard Law Firm

In order to aid the court, a judge might occasionally appoint an expert to help with specific aspects of the case. Court-appointed experts are different from a specific party’s experts because the court-appointed experts do not favor one side or the other, but rather, help the judge with certain tasks or analyses.

A trial court-appointed expert can be especially useful in a class action lawsuit in which several people have a claim against the defendant and there is no way that the court can hear each individual person’s case. In that instance, a court-appointed expert can help properly group the members of the class action lawsuit and help bring order to an otherwise unwieldy case.

In a recent case from Orleans Parish, the appellate court had to determine when a court-appointed expert is proper and what the limits of such an expert’s duties should be. Before getting into the applicable Louisiana law and how the appellate court ultimately ruled, some knowledge of the background facts is useful: The case from Orleans Parish was a class action lawsuit in which several employees were suing over medical problems they experienced from working in a building that had serious mold damage. Over 600 individuals had claims in the suit, and in order to deal with the case in a more organized and manageable manner, the class was to be broken up into various groups. In order to help with this enormous task, the trial court stated that it wanted to appoint an expert to help group individuals according to damages. Each party was allowed to submit nominations and discuss any issues they felt might arise if such an expert was appointed. Ultimately, an expert was appointed to help with the necessary tasks, and after the case was decided at the trial court level, the State argued that the court-appointed expert had outstepped his appropriate boundaries.

August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

by Berniard Law Firm

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

August 12, 2013

Shreveport Property Owner Found Liable for Kitchen Ceiling Collapse

by Berniard Law Firm

Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

July 27, 2013

5th Circuit Court of Appeals Rules in Favor of Drug Manufacturers in Suit for Damages

by Berniard Law Firm

In 2011, a Louisiana woman appealed a decision issued by the state’s highest court in a case she filed after suffered damages from the drug metoclopramine. Julie Demahy filed a lawsuit in 2008, alleging that she had suffered damages from the generic version of metoclopramide, which she took between 2002 and 2007. The state court had dismissed Ms. Demahy’s claims against Actavis, the manufacturer of the generic version of the drug, and against prescription drug makers Wyeth, Inc. and Schwarz Pharma, Inc. Schwarz had acquired the name-brand rights to the drug in 2001.

As of 1985, the FDA required that generic manufacturers of the drug metoclopramide include a warning with the medication about the risk of tardive dyskinesia, an often irreversible neurological disorder. In 2004, Schwarz voluntarily requested a change to the name-brand label, adding a warning that the drug should not be used for more than 12 weeks. It was not until 2009 that the FDA issued a black-box warning that informed consumers about the risk of tardive dyskinesia and that warned customers that the drug should not be used for longer than 12 weeks except in rare cases.

Under federal law, generic drug labels are required to be the same as name-brand labels. This means that state law cannot require generic manufacturers to include more information than that which would be available on the name-brand product of a prescription drug, as this would be contrary to the federal law. On these grounds, the state court had found that Actavis was not responsible under a failure-to-warn claim brought by Ms. Demahy. On appeal, Ms. Demahy claims that the state court’s mandate to change the district court ruling in favor of the defendant was improperly interpreted as calling for the dismissal of all claims against Actavis; Ms. Demahy argued that Actavis could still be found liable outside of the failure-to-warn claim.