Strict Liability

January 24, 2011

Lessons and Warning Signs of Asbestos Exposure and Mesothelioma

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

January 22, 2011

Recent Decision Illustrates Need for Legal Understanding When Filing Health Damages

by Berniard Law Firm

A recent Louisiana 1st Circuit Court of Appeal decision has raised many eyebrows by overturning a large portion of a lower courts award of $1 million to a group of residents in Baton Rouge’s University Place subdivision. The 360 plaintiffs joined in alleging that the nearby Sewage Treatment Plant was causing them numerous problems. Specifically, the plaintiffs were alleging that the “operation and maintenance of the waste treatment facility caused petitioners personal inconvenience, mental suffering, embarrassment, and personal injuries. Plaintiffs also alleged a grave threat to health and safety by exposure to contaminated air and increased risk of serious disease to themselves, their family, and their progeny.” The plaintiffs further contended that their property value had been permanently damaged by the presence of the sewage treatment plant. The court ultimately held that only one plaintiff out of the 360 plaintiffs initially named in the suit deserved compensation. The court came to this decision after the plaintiffs did not pass procedural requirements and/or missed vital legal requirements in order to remain in the suit. Exploring this case will illustrate that if proper procedural steps are taken and legal requirements understood and applied then case decisions are more likely to be affirmed and not overturned.

One of the major issues the court explored was the issue of prescription. The law governing the prescriptive period in this matter is La. R.S. 9:5624, which provides, “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to fun after the completion and acceptance of the public works.” This affected the plaintiff group’s case due to the fact that the treatment plant had been originally built in 1960, yet, had been expanded several times, the last expansion began in 1997 and was completed in 1998. Thus, the time period of the last expansion to the filing of the suit would be the determined to be the legal time period in which plaintiffs would be allowed to complain and allege damages. This led the lower court to find that the last expansion of the sewage plant must be viewed as a new public work event for purposes of La. R.S. 9:5624, stating, “After all, it would neither be equitable nor just to hold parties responsible for filing a suit within two years of the plant’s original completion date (i.e. 1960) when their property was not damaged until the plant was expanded in 1998.” Thus, damages had not prescribed when the suit was filed; however, only the time period in which the last expansion was completed to the time the plaintiffs filed their claim would count towards calculating any potential damages.

The number of plaintiffs steadily declined as the lower court progressed due to the fact that they either did not follow legal requirements or they were not legally recognizable. The first 148 plaintiffs who testified gave conflicting testimony or testified that the expansion of the sewage treatment facility produced little or no change in their prior circumstances. Thus, most of these class members failed to establish that the action taken by the City-Parish in so far as expanding the treatment plant had caused them any health problems or defects that did not exist prior to the expansion. Essentially, the plaintiff’s needed to allege that the expansion, which was what was legally at issue, was the main source of their problems, problems which did not exist prior to the expansion. A further dilemma the plaintiffs faced was that their expert testimony further supported the Court’s conclusion that the plaintiffs had not proven by a preponderance of the evidence that they had suffered any legal damages caused by the sewage treatment plant. One expert even stated that it was hard to have a sewage treatment plant without an odor. Additionally, many plaintiffs lived in the area prior to the expansion without bringing suit. As a result, these individuals were aware of the various odors and impacts the sewage plant had upon the neighborhood. Therefore, the court held that since the plaintiffs gave conflicting testimony, did not prove their claims, and did not have supporting expert testimony, the 148 testifying plaintiffs should be dismissed from the case.

January 20, 2011

Drunk Driver’s Claim Against the Louisiana Department of Transportation Fails Under the “Gross Negligence” Exception

by Berniard Law Firm

According to state law, the Louisiana Department of Transportation and Development (DOTD) has a duty to maintain the public highways in a condition that is reasonably safe for drivers exercising care and reasonable prudence, and even for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ferrouillet v. State ex rel. DOTD. If the DOTD is aware of a defect in the roadway that cannot be immediately corrected, it must provide adequate warnings of the danger. The warnings should be “sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated.” Generally, in order for the DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff must prove: (1) that the thing that caused the damage was in the DOTD’s control; (2) that the thing that caused the damage amounted to a defect that presented an unreasonable risk of harm; and (3) that the defect was the actual cause of the plaintiff’s damages. It is well settled, however, that the DOTD’s duty “does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle.” The tragic case of Lyncker v. Design Engineering, Inc. provides an illustration of this point.

During the afternoon of September 15, 2004, William Lyncker consumed a substantial quantity of of beer as he made preparations to his home, boats, and business equipment for the arrival of Hurricane Ivan in New Orleans. Around 8:00 PM, Lyncker decided to drive to a family member’s restaurant to help with hurricane preparations there. The route to the restaurant would take him eastbound on Highway 90, which had earlier that day been closed by the DOTD approximately three miles east of the intersection with Highway 11 due to the installation of a floodgate in anticipation of the rising waters. Lyncker made his way toward Highway 90 on Highway 11 where, upon encountering a barricade, he drove off the road and over an earthen levee to avoid it. Lyncker continued toward the intersection with Highway 90 when he came upon additional warning signs and more barricades. Nevertheless, Lyncker turned onto Highway 90 and drove at speeds approaching 75 MPH. Lyncker did not slow down when he approached the caution-lit steel barricades that the DOTD had installed in front of the floodgate. In fact, Lyncker struck the barricades without even applying his brakes, and one of the barricades became trapped under Lyncker’s truck. Still, Lyncker continued speeding towards the Highway 90 floodgate as the barricade dragged beneath his truck. Lyncker’s truck was discovered crashed into the floodgate, which had collapsed. Lyncker was killed in the collision, and subsequent toxicology reports showed that Lyncker had a blood alcohol concentration of 0.21 percent (the legal limit is 0.08 percent) at the time of the accident.

Lyncker’s family filed a wrongful death action against Design Engineering, Inc., the Orleans Parish Levee District, and the DOTD alleging negligence in the construction and maintenance of the floodgate, as well as failure to warn. The DOTD filed a motion for summary judgment based on the Louisiana Code Section that provides immunity when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and is over 25 percent negligent. La. Rev. Stat. ß 9:2798.4. The district court granted the motion, finding that “any reasonable fact finder would be compelled to find [Lyncker] in excess of twenty-five percent negligent.” On appeal, the Fourth Circuit noted that “since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident.” The court agreed with the district court’s finding that there was no issue of fact over Lyncker’s being at least 25 percent at fault and further concluded that “Lyncker’s intoxication is the sole and proximate cause of his fatal accident.” Accordingly, the court upheld the district court’s granting of summary judgment to DOTD under the immunity statute.

January 18, 2011

Legal Malpractice Action Connected with Wrongful Foreclosure on East Baton Rouge Parish Property

by Berniard Law Firm

An attorney owes a fiduciary duty to his client. This means that, in keeping with the special relationship of trust between them, the attorney must put his client’s interests ahead of his own and avoid harm to his client to the best of his ability. At its most basic level, the duty requires the attorney to avoid errors that other attorneys would reasonably avoid in the same situation. If an attorney fails to uphold this duty, his client may have an action for legal malpractice. Under Louisiana law, to establish a case for legal malpractice, a plaintiff must prove the following three elements: (1) that an attorney-client relationship existed; (2) that the attorney was guilty of negligence in his handling of the client’s case; and (3) that the attorney’s misconduct caused the client loss, damage, or injury.

Proving that an attorney-client relationship exists typically requires demonstrating that the client had engaged the attorney to represent him in some matter. This is often accomplished with a copy of the attorney’s engagement letter, but this is not required. Nor is the exchange of a retainer or other payment necessary to prove the relationship. Proving an attorney’s negligence requires establishing the standard of care for the legal services in question and demonstrating how the attorney’s conduct deviated from this standard. Usually, this requires the input of an expert witness who can review the attorney’s work and offer an option as to how it fell short of generally accepted practices. Finally, the client must be able to point to some tangible and quantifiable negative consequence of the attorney’s negligence. If a plaintiff is unable to prove any one of these elements, his claim will be defeated. Additionally, even if a plaintiff can prove negligence, he can have no greater recovery against the attorney than would have been available in the underlying claim. Costello v. Hardy. This limitation served as the basis of the appeal in the case of Wharton v. Bell.

In February of 2006, Kirk Wharton hired an attorney (hereafter referred to as “the attorney”)after the mortgage-holder on Wharton’s house in East Baton Rouge Parish filed a petition to foreclose on the property. The property was eventually sold by judicial sale to Mortgage Electronic Registration Service (MERS) on September 20, 2006, over Wharton’s objection. Due to a faulty assignment of the morgtage note and other irregularities in the transaction by MERS, Wharton, represented by the attorney, successfully had the sale set aside by the court in the foreclosure proceeding and settled with MERS. Yet, shortly thereafter, Wharton obtained other counsel and filed a malpractice action against the attorney, alleging that “had [the attorney] acted in a reasonably prudent and diligent manner and in accord with professional legal standards,” the judicial sale could have been avoided altogether. Wharton’s former attorney’s malpractice insurance carrier, Continental Casualty Company, filed a motion for summary judgment, contending that because of Wharton’s settlement and dismissal of his claims in the original foreclosure proceeding, he had suffered no damages and was therefore barred from pursuing the malpractice claim. After a hearing, the trial court granted Continental’s motion and dismissed all of Wharton’s claims. Wharton appealed.

January 16, 2011

Defendant’s Motion to Switch Courts is Approved in Negligence Suit Against Hospital

by Berniard Law Firm

Mar’Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs’ attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.

Mar’Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent “shunt revision” took place at Tulane Hospital two weeks before her death.

However, when Mar’Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar’Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar’Kirney with an upper respiratory infection. This was not the case. Mar’Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar’Kirney died less than 24 hours after arriving at Tulane’s Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.

January 14, 2011

Court of Appeals allows Plaintiffs to Continue Suit in Product Defect Matter

by Berniard Law Firm

Many of Louisiana’s woes are from recent disasters such as Hurricane Katrina and the Gulf oil spill. However, for Plaintiffs in David v. Velsicol Chemical Corporation, their woes began long before then. Plaintiffs were residents and property owners in the Cow Island area of Vermilion Parish when they discovered that their lands had high levels of arsenic in the ground water, in some instances eighty times the Environmental Protection Agency’s acceptable levels. Plaintiffs claim that Defendants’ product, Cooper’s Cattle Dip, contaminated their land and drinking water with arsenic and other hazardous chemicals causing the high rate of cancer in the area.

Plaintiffs’ story begins before 1970 when Cooper’s Cattle Dip was used in dripping vats located on, or adjacent to, all of the Plaintiffs’ properties. The dip solution contained high concentrations of arsenic and other poisonous chemicals. After being dipped in the solution, the cattle would stand as the dip slowly dripped its poison into the Plaintiffs’ lands. Although this dip eradicated the ticks that were killing cattle across the United States, it was deadly to humans and animals. This poisonous dip was simply allowed to run off into the ground and, as Plaintiffs alleged, contaminate the ground and eventually the water.

Despite this, the trial court ruled that twenty-one of these Plaintiffs had no cause of action and no standing to proceed in the case. Just recently, the Third Circuit Louisiana Court of Appeals reversed the trial court’s ruling allowing the twenty-one Plaintiffs a chance to prove their case under pre-Louisiana Product Liability Act (LPLA) strict liability law. As a side note, this case is governed by pre-LPLA strict liability law because the contamination occurred before enactment of the LPLA. For further discussion on the LPLA, please see an earlier entry on the blog.

January 12, 2011

Teen from Cut Off Dies in Car Accident Where Driver Was Unlicensed

by Berniard Law Firm

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver’s license. Further, the girl’s mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue’s death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle’s owner allowed her to drive without a license was “immaterial and irrelevant” to the issue of negligence where her “conduct in driving without a license was not a cause-in-fact of the accident.” Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be “on a mission” for the owner, acting as the owner’s agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle’s owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

January 10, 2011

Hannie v. Guidry Spells Out Standards for DeNovo Appeal

by Berniard Law Firm

On the day after Thanksgiving in 2003, plaintiff Nicol Hannie’s vehicle was struck by another vehicle driven by defendant Ray Guidry in LaFayette, Louisiana. Due to the holiday shopping sales offered that day, traffic was very heavy. Hannie, who had just finished eating at a restaurant, attempted to make a left hand turn onto a five lane roadway. The middle lane of the roadway was a turning lane. Because traffic was completely backed up in the two travel lanes immediately closest to Hannie, several cars in those lanes graciously created a space for Hannie to traverse and waved him through. As Hannie cautiously passed through the space created in the immediate two lanes, he inched onto the turning lane to complete his left hand turn. However, as soon as he began to pass through the turning lane in order to merge onto the distant travel lanes, he was struck by Guidry, who was allegedly using the turning lane as a passing lane and also traveling at a high rate of speed.

At trial, the district court agreed that Guidry was impermissibly using the turning lane as a passing lane. They reached this conclusion by noting that Guidry’s intended turn-off was nearly 700 feet away from the scene of the collision, and he could have stayed in the inside travel lane several hundred feet further before entering the turning lane. Furthermore, the high rate of speed Guidry was driving, as witnessed by others, tended to show that Guidry may have been impatient and did not want to remain in the travel lanes before commencing his left handed turn in the turn lane. Accordingly, the district court held Guidry to be 100% at fault for Hannie’s resulting injuries.

Dissatisfied with the verdict, Guidry appealed to the Third Circuit Court of Appeals of Louisiana. Guidry denied all fault and contended the Court of Appeals should review the district court’s finding under a de novo standard of review.

January 8, 2011

Mesothelioma and Asbestos: Part II

by Berniard Law Firm

This post constitutes part two of an introduction to mesothelioma:

Tissue changes resulting from asbestos exposure cause fluid to become trapped between the lung and the chest wall. This trapped fluid induces three symptoms which are often the initial symptoms a patient notices comprising coughing, chest pain, and shortness of breath. The trapped fluid creates uncomfortable pressure between the chest wall and lungs which the patient describes as chest pain under the rib cage. Coughing may accompany these symptoms which are typically the initial symptoms a patient experiences.

Additional symptoms may begin developing over several decades. For instance, weight loss may occur which is a symptom often seen in conjunction with cancerous tumors. Also, anemia may result when mesothelial cells comprising the pleura (lungs) and pericardium (heart) are involved. Blood clotting abnormalities typically present only in severe mesothelioma cases.

January 6, 2011

Mesothelioma and Asbestos: Part I

by Berniard Law Firm

Asbestos was recognized to be a toxic substance as long ago as the 1890’s although it was not linked with specific diseases until recently. A multitude of lawsuits have been filed against asbestos manufacturers since 1929 with cases even traveling up to the United States Supreme Court. Nonetheless, no Federal Laws were ever created to address compensation for those suffering as a consequence of asbestos exposure leaving many sufferers without any assistance at all. Compensation is meant to address not only medical costs but also the pain and suffering resulting from the asbestos exposure as well as loss of income.

Although asbestos exposure is often ‘on the job’ exposure, a spouse simply washing the clothes of a family member subjected to ‘on the job’ asbestos exposure is likewise subjected to inhalation of asbestos dust and fiber. Even such seemingly minimal asbestos exposure places the spouse at risk for also succumbing to asbestos induced health problems. Residents living near factories or mines utilizing asbestos are also at risk for developing asbestos inhalation health disorders.

Unfortunately, asbestos inhalation may trigger a multitude of health problems. For example, a condition termed asbestosis refers to an inflammatory, chronic and prolonged lung disease that may inflict permanent lung damage. Moreover, asbestos exposure places an individual at risk for developing cancer. Due to the ubiquitous nature of asbestos and the magnitude of the damage it inflicts, compensation for asbestos related injuries lies in the billion dollar range. In general, the symptoms of asbestos related diseases include, but are not limited to, shortness of breath, wheezing, hoarseness, a persistent cough and/or coughing up blood, difficulty swallowing, chest pain, loss of appetite, weight loss, fatigue, or anemia.