Louisiana Personal Injury Lawyer Blog

In this, our final post of the Union Carbide/Dow Taft plant chemical leak series, we will consider the fifth requirement for class certification under Louisiana law: that the class is "defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case."Chalona v. La. Citizens Property Ins. Corp. The intent of this requirement is to ensure that the class is not "amorphous, indeterminate, or vague," such that any potential class members are challenged to determine whether they are actual members of the class. Plaintiffs initially submitted a class definition that included "[p]ersons throughout Louisiana" who were exposed to the ethyl acrylate that escaped the Taft plant and who suffered injury or loss as a result. The court desired a more precise definition, however. It reviewed the zip code maps, weather data, and expert testimony in evidence and incorporated Dr. Williams's method in describing the symptoms suffered by people who were exposed to craft its own definition. This action on the court's part was specifically permitted by Louisiana Code of Civil Procedure Art. 592(A)(3)(c), which envisions that the court may, prior to a final decision on the merits, enlarge, restrict, or otherwise redefine the constituency of the class. The court determined that its sharpened definition would mean that members "only need to determine if they were present in the geographically defined area on July 7, 2009, and if so, whether they experienced any of the symptoms commonly associated with the offending chemicals released." This meant, in the court's view, that its ultimate ruling as to whether the chemical released by the Taft plant caused the Plaintiffs' injuries and losses would resolve the claims of all class members.

The court summarized its conclusions by reiterating that the substantive issue that will control the outcome of the case is whether ethyl acrylate "in the amount released can cause the damages as alleged by plaintiffs. This issue, along with the legal issues of duty of the defendants to the class ... will predominate." Accordingly, the court held that the Plaintiffs successfully demonstrated that certifying the class would not result in the action "degenerating into a series of individual trials."

As we observed previously in the class certification litigation related to the Chalmette Refinery leak in 2007, the court's task in determining whether to certify a class is an extraordinarily fact-intensive one. In many cases, the certification process is just as complex and involved as the trial on the merits of the ultimate issue. In fact, the class certification in the Taft plant case has not yet been finalized. Subsequent to the issuance of Judge Cade's Order on December 15, 2011, the Defendants filed a motion to appeal the class certification.

Please stay tuned to this blog for updates as they become available.

Following the prior discussion of numerosity and commonality, we will now examine the court's analysis of typicality under Louisiana Code of Civil Procedure Article 591(A)(3). This prerequisite obligates the court to examine whether the claims or defenses of the representative parties are typical of the entire class. The requirement is met if the claims of the class representatives arise out of the same "event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory." See Gudo v. Admins. of Tulane Educ. Fund.

The court reviewed the three putative class members presented by Plaintiffs. Ramona Alexander lived in Hahnville on the day of the chemical release. She testified that she smelled a strong odor in her home on the morning of July 7, 2009 which caused her to become sick and vomit. The odor also caused burning in her eyes, throat irritation, and shortness of breath. Vanessa Wilson lived in Waggaman on the day of the chemical release. She awoke to an odor that caused eye irritation, nausea, coughing, and a sore throat. Wilson testified that she traveled to Avondale that morning where the odor persisted; her symptoms worsened. She also received a panicked phone call from her mother who was being ordered to evacuate her home in St. Charles Parish. Upon arriving at her mother's house, Wilson observed her mother vomiting and suffering from burning in her eyes. Melissa Berniard, who is a licensed attorney in Louisiana, testified that she was in her home in Orleans Parish on the morning of July 7. She awoke to a foul odor that suggested to her that something may have been burning; she soon experienced eye irritation, headache, nausea, and feelings of anxiety. Berniard traveled to Jefferson Parish later in the day and spoke with others who experienced similar symptoms. The court found that Wilson, Alexander, and Berniard all offered "typical complaints of the constituency of the class" that were corroborated by Dr. Williams's analysis of numerous class members' intake forms which captured their symptoms. Accordingly, the court concluded that the "issue of whether or not a release of ethyl acrylate can cause the damage alleged by the class representatives is common to all class members and is adequately represented."

The court next considered whether the proposed class representatives are adequate under the Louisiana Code by referencing a definition adopted by the Fourth Circuit Court of Appeal. In essence, the Fourth Circuit's analysis of adequacy concerns whether the proposed representatives' claims are "typical of" the claims of all class members and whether the damages asserted by the representatives are of the same type as the class as a whole. See Dupree v. Lafayette Ins. Co. The court noted that Wilson, Alexander, and Berniard all testified to being present in the defined geographical area on July 7, 2009, suffering from the type of symptoms that were common to the class, and being willing to serve as class representatives. Thus, the court held that the adequacy requirement was met with respect to the plaintiff representatives. The court also made a finding on a related matter that Plaintiffs' counsel are "highly skilled attorneys with experience in class action litigation" and well qualified to serve as class counsel. The court expressed that it was "particularly impressed" with the attorneys' presentation at the certification hearing, and felt that "there is no dispute as to the competency and the zealousness of class counsel."

In our fourth and final post in this series, we will examine the court's analysis of the last prerequisite for class certification, the need for an "objective" definition of the class.

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court's analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes--clearly a large number. The court found persuasive the fact that "the size of the individual claims of class members is small enough that individual lawsuits are impracticable," but that that "separate suits would unduly burden the courts." In the court's view, a class action would "be more useful and judicially expedient." Thus, the court concluded that "numerosity exists," but that "the class is not too numerous to manage effectively."

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist "as to the totality of the issues a common nucleus of operative facts." McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance "entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class." The goal is to "prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. "[V]arying degrees of damages ... does not preclude class certification." In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants' negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was "satisfied ... from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class." The court's reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams's testimony, the court nevertheless found that "a method of assessing general causation for the whole of the class exist[ed]." This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a "common nucleus of operative facts" that permitted a finding that "uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event" involved common legal issues among all members that superseded any individual concerns.

Having concluded that Plaintiffs met their burden of proof on the issues of numerosity and commonality, the court turned its attention to the third requirement: typicality. We will take up this analysis in the next post in the series.

Early in the morning of July 7, 2009, a 640,000 gallon chemical storage tank at Union Carbide/Dow Chemical's Taft plant began to rupture. The tank contained ethyl acrylate, a foul-smelling chemical used in making various products including industrial flavorings, fabric finishes, pigments and dyes, floor polishes, adhesives, and caulk. The substance is listed as a possible carcinogen by the National Institute of Occupational Safety and Health, and is known to cause a number of significant heath issues such as burning of the mucous membranes and eyes as well as respiratory irritation and nausea upon contact through the air. Westerly winds gusting as high as 20 miles per hour carried the chemical vapor into the neighboring communities. St. Charles Parish sheriff's deputies began evacuating residents while officals from the Louisiana Department of Environmental Quality were summoned to perform air testing. Numerous residents in St. Charles Parish and surrounding parishes experienced extremely unpleasant physical symptoms as they came into contact with the chemical vapor.

The Berniard Law Firm filed a lawsuit on July 29, 2009 on behalf of those who suffered effects from the Taft plant chemical leak. On December 15, 2011, Judge Herbert Cade of the Civil District Court of the Parish of Orleans granted the Plaintiffs' Motion for Class Certification. The class is defined as persons living or located in St. Charles Parish and certain areas of Orleans and Jefferson Parishes on July 7-8, 2009 who experienced "eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues" as a result of their exposure to the ethyl acrylate that escaped the Taft facility. The court's order contains an illustrative description of the process by which it analyzed the Plaintiffs' argument for class certification, and an exploration of that analysis will serve as the basis for this and a series of subsequent blog posts.

Previously on this blog, we have examined the requirements for class certification in a federal case according to Rule 23 of the Federal Rules of Civil Procedure. Louisiana's Code of Civil Procedure, in Article 591, sets forth a similar set of standards for certification. Specifically, a plaintiff who seeks to represent a class must show:

(1) the class is so numerous that joinder of all members is [impracticable]; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties will fairly and adequately protect the interests of the class; and (5) the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of conclusiveness of any judgment that may be rendered in the case.

Additional criteria, such as whether the common questions of law or fact predominate over issues pertaining only to individual members, and the practical ability of individual class members to pursue their claims without class certification must also be considered by the court. Only once the court is satisfied that these various factors resolve in favor of class certification can it grant the plaintiff's motion to represent the class.

In the Taft plant litigation, three proposed class members were presented to the court in support of the motion for class certification: Ramona Alexander, a resident of St. Charles Parish; Vanessa Wilson, a resident of Jefferson Parish, and Melissa Berniard, a resident of Orleans Parish. In the next post, we will begin our review of the court's analysis of the five certification requirements under the Louisiana Code.

In our most recent post, we began a review of the Third Circuit Court of Appeal's application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT's no-coverage arguments had previously been heard in a "peremptory exception of no right of action" filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should "preclude UUT from re-litigating those same arguments" in the instant case. The plaintiffs also argued that the federal case cited by UUT offered "no precedential value in this state court action." UUT's reply asserted that the exceptions previously heard by the trial court "dealt with procedural, rather than substantive, matters," and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court's rulings on the exceptions were interlocutory and therefore "subject to revision by the trial court at any time prior to rendition of final judgment." The trial court granted UUT's motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore "the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT."

The Third Circuit concluded that UUT showed that "the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims." The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply "argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling." The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, "the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions." In fact, UUT was not even made aware of the plaintiffs' position on coverage until the day of the hearing. "Clearly," the court concluded, "the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions." In the view of the court, "[t]he issues raised in the motion for summary judgment filed by UUT ... did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion]." Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

Continue reading ""Law of the Case" Doctrine, Part 2" »

Under Louisiana jurisprudence, special damages are the category of damages that can be "established to a reasonable mathematical certainty." Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff's forgone income can be numerically calculated by the court. Given the relatively high level of precision, "when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages," Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is "no basis for a precise mathematical calculation of the amount of lost earnings," the trial court may award a "reasonable" amount of damages. However, "to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson's testimony that she was unable support a horse's weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, "[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient." In the court's view, Johnson's wage calculation was a mere "guesstimate" that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff's testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court's decision process. Clearly, here, the Third Circuit did not approve of the trial court's treatment of Johnson's claim for wages, perhaps particularly because Johnson did not report her income as taxable.

Continue reading "The Plaintiff's Burden in Proving Special Damages" »

On behalf of the Berniard Law Firm, we'd like to wish all of our clients and employees a Happy and Safe Holidays and New Years.

The blog will resume postings in 2012!

The Bailey case, as discussed, was determined based upon the precedent set forth by the Louisiana Supreme Court in Bulot v. Intracoastal Tubular Services, Inc. The focus here is on two causes of action, Whether a plaintiff can file both, and receive punitive damages for, a wrongful death and survivorship cause of action.

The Plaintiffs in Bulot were two families who sued the defendant oil refinery for wrongful death and survival. The District Court granted summary judgment, meaning there were no genuine issues of material fact, in favor of the defendant as to one family's wrongful death action and its claim for punitive damages in its survival action. The Court also granted the defendant's exception of no right of action as to punitive damages for the second family's wrongful death action.

Each family had a family member that died after being exposed to radioactive waste. One family alleged that the deceased had worked for a company that engaged in the cleaning of oilfield tubing and pipes. He died of pancreatic cancer in 1999, allegedly as a result of exposure to radioactive waste while employed by the company. The second family's family member died while La. Civ. Code Ann. art. 2315.3 ('the statute') was in effect (between 1984 and 1996). The statute provided that punitive damages may be awarded, in addition to general and special damages, if it is proved by the plaintiff that the sustained injuries were caused by the defendant's "wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."

In order to establish when a tort cause of action accrued in an occupational disease case like this, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages, in this case disease. In short, the exposures must be "significant and continuous."

The Appeals Court reversed the grant of summary judgment as to the first family's claim for punitive damages in its survival action, as it found there existed genuine issues of material fact as to whether the family's deceased relative's exposures to radioactive material on the jobsite from 1984 to 1992 resulted in his developing cancer. The Court affirmed the grant of summary judgment as to the family's wrongful death claim, however, because the deceased did not die while the statute was in effect. In addition, the Court affirmed the exception of no right of action for the second family's claim for punitive damages in its wrongful death claim. The Court determined that damages pursuant to the statute could not exist as a component of a wrongful death action because the law in effect at the time of death is the law that applies in wrongful death actions.

Although both causes of action arise from a common tort, survival and wrongful death actions are separate and distinct. Each arises at a different time and provudes for damage awards for different injuries and losses. A survival action exists simultaneously with the tort and transmits to the beneficiaries (decendents) upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. A wrongful death action arises once the victim has died and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and after. The statute limits a survivor's recovery to damages actually suffered as a result of the deceased's death, and cannot recover punitive damages as a result.

A claim for damages pursuant to the statute cannot exist as a component of a wrongful death action, as a wrongful death action is limited to compensatory damages for the victim's own injuries. Punitive damages may be awarded, if it is proved that the plaintiff's injuries, were caused by the defendant's disregard for public safety, but the statute provides for the survivors of the original tort victim to recover all damages for injury to that person, his property or otherwise, caused by the offense.

Continue reading "Louisiana Wrongful Death and Punitive Damages Award in Oil Refinery Release (Part II)" »

The Bailey v. Exxon Mobil Corporation case finds its conclusion based on the precedent set forth in Bulot v. Intracoastal Tubular Services. The focus is on the application of a statute, and differentiating events that take place prior to the statute's enactment, and how the Court will analyze events that continuously occur which began before the enactment of the statute and continue after its enactment.

The issue before the Court in Bailey is whether the plaintiffs’ claims for punitive damages in a wrongful death action are precluded by Bulot. The plaintiffs in Bailey alleged that either they or their decedents were exposed to naturally occurring radioactive material at over 600 pipe yards throughout Louisiana, six other states, and overseas, through their work with, or with a subsidiary of, the Exxon Mobile Corporation. They also alleged they were entitled to punitive damages under former Louisiana Civil Code Article 2315.3.

Punitive damages are intended to reform or deter the defendant and others from engaging in similar conduct to that which formed the basis of the lawsuit. Punitive damages are not intended to compensate the plaintiff, however, the plaintiff often receives most if not all of the punitive damages award. The Court states that the statute in question, La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances." The court in Bulot states that "punitive damages cannot be recovered by way of a wrongful death action. The right to a punitive award is a different kind of right or legally enforceable claim than the right to compensatory damages. As such, a claim for damages pursuant to La. Civ. Code Ann. art. 2315.3 cannot exist as a component of a wrongful death action, as that is limited to compensatory damages for the survivor's (victim's) own injuries."

In Bailey, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs’ wrongful death claims based on the Court of Appeal of Louisiana, Fourth Circuit's holding in Bulot v. Intracoastal Tubular Services, Inc. The District Court sustained the defendants’ exceptions of no cause of action for punitive damages in a wrongful death case.

In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased’s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. The District Court granted the employer’s motion for summary judgment on the punitive damages claims. His widow and children then appealed to the Court of Appeal where it was held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. The Court of Appeal also held that punitive damages could not be recovered through a wrongful death action. Thus, according to Bulot, the plaintiffs in Bailey are precluded from recovering punitive damages in a wrongful death action.

For a further discussion of Bulot v. Intracoastal Tubular Services, Inc. please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential wrongful death claim of your own, then please do not hesitate to contact the Berniard Law Firm.

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading "Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading "Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

The case of Jefferson Block 24 Oil and Gas, Inc. v. Aspen Insurance UK Limited highlights an important battle over money set aside for oil spill recovery, an obviously sensitive and important topic in the Gulf Coast. At the federal district court for the Eastern District of Louisiana, the defendants won a motion for summary judgment and the court dismissed the case. The plaintiffs appealed the determination and the United States Court of Appeals for the Fifth Circuit reversed the decision and remanded the case for further hearing.

The plaintiff, Jefferson Block, owned and operated offshore gas leases, pipelines and a platform in the Gulf of Mexico. In November 2007, a drop in pressure in one of the pipelines was discovered that showed that oil was spilling into the Gulf. Jefferson Block cleaned up the oil under the direction of several government agencies and incurred a cleanup cost of approximately $3 million.

At that time, Jefferson Block owned an insurance policy which provided some coverage in the case of a leak, but was limited to the items set out in a "Declaration." This declaration listed the oil interests that Jefferson Block had in the area but did not specifically reference the 16-inch pipeline that was the cause of the spill.

Underwriters, one of the defendants, denied coverage and plaintiff sued in a Louisiana federal court. The policy provided that the governing law was New York law, and under New York law, the policyholder bears the burden of showing that the insurance contract covers the loss. Courts interpret insurance policies like any other contract, and there is a series of steps courts will take to determine what the terms of the contract are.

First, courts look to the express language of the policy, with reference to the subject matter and purpose of the policy. If the terms are unambiguous, the court will determine the parties' intent from the words in the document, and summary judgment is therefore appropriate as a matter of law.

However, if a policy is ambiguous, the burden of proof shifts to the party asking for summary judgment to show that its proposed interpretation of the policy is the correct one. At this point, the court can accept extrinsic evidence of the parties' intent. If the extrinsic evidence does not unambiguously favor the party that filed for the summary judgment, the court looks to the law for guidance. Typically, ambiguities in insurance policies are construed in favor of the policyholder.

In this case, the court found that because of the purpose of the policy, which was to comply with the Oil Pollution Act of 1990, this weighed in favor of finding for the plaintiff. Additionally, the policy referred to facilities "located" within certain areas, and the appellate court agreed with the district court that the word “located” was ambiguous. It also stated that the extrinsic evidence was not so one-sided as to require finding for the defendant.

The district court refused to construe the ambiguities in favor of the plaintiff, and the appellate court held that this was a legal error. For that reason, the court reversed the decision of the district court and sent the case back for further proceedings.

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker's employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza's employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza's cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO's motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO's writ application but ultimately sided with the trial court.

The crux of the appellate court's decision was its interpretation of the "Effective Date" provision of the contract which indicated that the agreement was in full force and effect "on the date first above written or on the date on which CONTRACTOR (Mid South) first commenced the performance of any services for COMPANY (EXCO) or first provided goods, equipment or facilities to COMPANY, whichever first occurred, and even though this Agreement may not then have been reduced to writing." There was conflict among the parties whether this clause or the type-written date "December 16, 2008" should take precedence. The court determined after its de novo review of the trial court record that EXCO should have known that it was assuming liability for events earlier than December 16, 2008 because it drafted the 2008 Agreement. EXCO also alleged error because the type-written date was not given precedence over the pre-printed contract language. The court found this allegation to be without merit. The "Effective Date" provision of the contract was drafted with the potential of the occurrence of a situation like this one in mind. It specifically contemplates an incident like Mr. Mendoza's in its language. It was the opinion of the appellate court he phrase "December 16, 2008" being type-written was not as important as influential as the type-written provisions in the precedential cases making up the common law in this area.

A court's interpretation of a contract can make a crucial difference to the parties involved. EXCO tried to get out of a contract that it had drafted itself. This is a difficult position from which to argue. Almost all of the interpretation tools that a court may use will caution against giving undue deference to the drafter of the contract. Companies must strive to write contracts containing language by which they intend to be bound. Courts must strive to fairly and equitably interpret contracts but they do not have to interpret them according to unexpressed intentions for which the contracts contain no basis.

Continue reading "Second Circuit Case Demonstrates Importance of Proper Contracts" »

At times accidents on bodies of water are governed by a unique set of federal laws called admiralty laws. The court will thus apply admiralty law as opposed to federal or state law. This law of the water plays an important part in the administration of justice in Louisiana because of the great amount of water-based industries operating out of the state, and the high potential for lawsuits to occur within these industries.

Whether or not admiralty law can or need be applied can be very important to cases because the different set of laws can actually change a party’s rights. For example, under admiralty law if you make a Rule 9(h) declaration designating your maritime claims as claims governed by admiralty jurisdiction, then there is no right to a jury trial, even where you could get a jury trial under state or federal law.

The application of admiralty law was recently at issue in the case Apache v. GlobalSantaFe Drilling Company. In this case, a mobile offshore drilling unit, owned by GlobalSantaFe, collided with an offshore oil and gas production platform, owned in part by Apache Corporation. Apache sued GlobalSantaFe to recover the damages caused to the platform. Apache asserted that the suit could be under both admiralty law and federal law.

Even though both parties requested a jury trial for the suit, GlobalSantaFe later decided it did not want a jury trial. Thus, GlobalSantaFe attempted to strike the requests for a jury trial by arguing that Apache had made a Rule 9(h) declaration, designating the claim for admiralty jurisdiction and losing the right to a jury trial.

Despite the fact that Apache had asserted the claim under both admiralty and federal law, the parties later stipulated to the fact that: “Apache did not make a 9(h) declaration.” In situations where it is not clear whether a party made a 9(h) declaration, courts look to the totality of the circumstances, considering, for example, whether the claim is viable under any other sector of law.

Here, not only is the claim viable under federal law, but the parties also stipulated to the fact that Apache did not make a 9(h) declaration. When a party stipulates to a fact it has made a formal concession. Thus, GlobalSantaFe is bound by its stipulation, and cannot strike the requests for a jury trial on the basis of Apache making a 9(h) declaration.

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA's form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

We will undoubtedly be checking out this list as it is sure to contain content that is of interest not only to residents of Louisiana but across the country. For a directory of 'blawgs,' as categorized by the American Bar Association, you can click here to tour the spectrum of content available by state or topic.

This blog was started as an effort to not only showcase the knowledge of our law firm but to also provide people, whether residents of New Orleans, Louisiana, the Gulf Coast, or throughout the country, a resource that explains how the law is important to their everyday lives. Blogging is a powerful tool not only in the legal profession but as a medium of empowering people who may not realize that an instance of tragedy or harm comes with it legal recourse. We hope that the content we have provided over time has helped people find an answer to legal issues or simply gain a little bit of knowledge about how this country's system of law works. This is said not to shill for a nomination to the aforementioned contest but, instead, to note that this ABA-sponsored contest highlights something we feel strongly about, that being the power of legal blogs.

We hope you continue to enjoy your weekend and will have new content available Monday.

Recently we explored the Third Circuit Court of Appeal's discussion of the legal cause of a tragic natural gas explosion at the Jones residence in Opelousas Parish. Another of Centerpoint's assignments of error on appeal, the last that we'll review from the case, was that the jury incorrectly apportioned fault; the jury assigned 50 percent of the fault to Centerpoint and 50 percent to Carl Jones, Sr. Centerpoint argued that Jones should have been assessed "at least ninety percent of the fault in causing the explosion and fire." The review of fault allocation by an appellate court is based on the "manifestly erroneous" standard. That is, the court must allow the jury's apportionment to stand unless it is clearly wrong.

The court began its review of Centerpoint's argument by focusing on the trial testimony of several of its witnesses. All expressed that the company "clearly recognizes the inherently dangerous nature of its product and has developed numerous measures designed to prevent explosions and fires, such as occurred in this litigation." One witness, the company's former Operations Manager for the state of Louisiana, testified that the procedures for
disconnecting gas service are "based on the inherently dangerous nature of" natural gas and are designed to "protect people from their own ignorance." He further expressed the view that Centerpoint has "an obligation to take every reasonable step to prevent its customers from tampering with its natural gas supply system." The court equated the risk of "catastrophic consequences" created by Centerpoint's conduct to Jones's action in reconnecting the gas supply. Had either party "not breached the applicable duties imposed upon them," reasoned the court, the accident would not have happened. Nevertheless, when comparing their relative conduct, the court concluded that "Centerpoint Energy’s fault far exceeds that of Mr. Jones." It considered Centerpoint to be the "superior actor" in the incident who failed--even in light of the gas industry's general awareness that "customers will attempt to steal gas"--to engage in a "rather simple task" that was designed to "prevent exactly the result which occurred." Thus, the court could "not find that the jury was manifestly erroneous or clearly wrong in apportioning fault equally" between Centerpoint and Jones.

The jury verdict in this case seems to strike a balance between the need for a utility company to prevent natural gas accidents and its inability to prevent all attempts at gas theft by customers. In fact, the court suggested that Centerpoint's fault was actually greater than Jones's, though it could not find error on the jury's part that would allow it substitute its own judgment and increase its share of the fault. Undoubtedly, the jury would have reached a different result if Centerpoint had followed its own procedure in shutting off and securing the gas line and Jones had nevertheless managed to turn the valve back on. Ultimately in the case, the court rejected all of Centerpoint's assignments of error and affirmed the jury's verdict in its entirety.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 3: Assigning Fault" »

In our prior post, we observed the Third Circuit Court of Appeal's finding that the jury correctly held that Centerpoint Energy failed to meet its duty of properly securing the natural gas line and valve when it disconnected service at the Jones residence in Opelousas Parish. Establishing the duty owed by Centerpoint was one of several elements of the duty-risk analysis that Jones was required to establish in order to prevail. Another element that we will now consider is that of causation. Centerpoint argued that its failure to properly shut off and secure the gas supply was not the legal cause of the injuries sustained by the Jones family. Instead, in Centerpoint's view, Jones's "reconnection of the gas service constituted intervening conduct that was not only grossly negligent, intentional, and criminal, but also not foreseeable." Under Louisiana law, an intervening act will relieve the original tortfeasor of liability if it
“superseded the original negligence and alone produced the injury.” Adams v. Rhodia, Inc. However, if the intervening act is foreseeable to the original tortfeasor, it is considered to be "within the scope of the original tortfeasor's negligence." In short, Centerpoint argued it could not possibly have foreseen Jones's attempt to reconnect his gas line and, therefore, its failure to properly secure the line was irrelevant once Jones acted to steal the gas.

The court, however, found that Centerpoint's position was "defeated" by the testimony of its own wtinesses. One employee, the company's Operations Supervisor, explained that the security mechanisms were necessary because it was "common sense that people will try to steal natural gas after their supply has been cut off." Another, Centerpoint’s former Operations Manager for Louisiana, stated that the locking mechanisms were required because "people do not always understand the dangers associated with natural gas." Also, an expert in the field of natural gas operations testified that Centerpoint should have "no illusions" about the potential for people to steal natural gas. The court found that "Jones’s actions in leaving an uncapped gas line open in the house, breaking the plastic locking device and stealing natural gas, and negligently leaving the natural gas running into the house all night, are exactly the unsafe acts that Centerpoint Energy’s duty to properly terminate service is designed to prevent." Thus, it concluded, the jury's finding that Jones’s conduct was foreseeable was well supported, and it correctly determined that Centerpoint could not rely on Jones's intervening criminal act to relieve it of all responsibility for the explosion.

In a third and final post, we will revisit this case to review Centerpoint's argument on appeal that the jury erred in its apportionment of fault between it and Jones.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 2: Determining Causation" »

On May 7, 2003, Centerpoint Energy disconnected the natural gas service at the house of Carl Jones, Sr. and his family because they were past due on an outstanding balance. A short time later, Jones and his son removed the gas stove from the kitchen and replaced it with an electric model. Unfortunately, Jones forgot to cap the gas line before installing the new stove. Late in the evening of June 15, 2004, after having been without a functioning water heater since the disconnection, Jones reconnected the gas line. He did so because he was expecting guests the following day and wished to have a supply of hot water that did not require stove-top heating. To make the reconnection, Jones used a wrench to snap off the red plastic locking device that the Centerpoint technician had installed on the line when he closed the valve. Unable to re-light his water heater, Jones assumed no gas was flowing and went to bed. By morning, the house was filled with gas, and as the family arose several large fireballs erupted. Jones, his wife, and their four children were severely injured in the explosion. Jones sued Centerpoint seeking to recover for his and his family's injuries. A trial was held in July, 2010. After the judge denied Centerpoint's motion for a directed verdict, a jury apportioned half of the fault to Centerpoint and half to Jones and awarded substantial sums to Jones's family members for their injuries. Centerpoint appealed, arguing, among other things, that the trial court erred in permitting the case to go to the jury at all. In Centerpoint's view, its duty to reasonably disconnect gas service for non-payment did not extend to protecting Jones against the explosion caused "by [his] subsequent negligent, intentional, criminal and then grossly negligent conduct."

An appeal of a trial court's denial of a motion for a directed verdict requires the appellate court's de novo review because such a motion can be granted "only if the facts and inferences are so overwhelmingly in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” The Third Circuit began its analysis by noting that "[t]o prevail in their personal injury suit, the plaintiffs bore the burden of establishing that Centerpoint Energy was at fault in causing the accident, using a duty-risk analysis." Centerpoint argued that Jones failed to meet this burden, in part, because he could not establish that the utility did not conform to the appropriate standard of care when shutting off the gas supply. The court found two sources for the scope of duty imputed to Centerpoint. First, Louisiana case law takes the position that it is

"common knowledge ... that natural gas, being highly flammable and explosive in nature, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury." Giordano v. Rheem Manufacturing Co..

In addition, the Code of Federal Regulations provides for three options for "acceptable compliance" when disconnecting natural gas service: (1) the valve that is closed to prevent the flow of gas to the customer must be securely locked; (2) a mechanical device or fitting that will prevent the flow of gas must be installed in the service line or in the meter; or (3) the customer’s piping must be physically disconnected
from the gas supply and the open pipe ends sealed. 49 C.F.R. 192.727(d). In this case, the Centerpoint technician installed an easily circumvented, red plastic locking device on the valve, but, in contravention to Centerpoint's own clear policy, did not install a "blind plate" within the meter that would have blocked the flow of gas even if the valve were to be re-opened. The court, after reviewing extensive expert witness testimony concerning the industry standards for preventing unauthorized tampering with a shut-off gas line, concluded: "reasonable men could find that installing the plastic locking device was not sufficient to comply with the standard of care, that Centerpoint Energy’s technician did not properly install a blind plate on the meter, and, therefore, Centerpoint Energy did not
comply with the applicable standard of care." Thus, the court determined that the jury's verdict, so far as it pertained to the element of Centerpoint's duty, was supported.

In a subsequent post, we will revisit this case to review the court's analysis of Centerpoint's argument concerning the causation element of the duty-risk analysis.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 1: Exploring the Utility Company's Duty " »

In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche's dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen 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 run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.
Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant's allegations that the plaintiffs' own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

This case is another classic example of how essential it is to seek a competent attorney who is knowledgeable and experienced at defending your claim.

Continue reading "Louisiana Third Circuit Court of Appeal Reverses Grant of Exception of Prescription" »

An explosion at the Multi-Chem Corporation chemical plant, followed by a series of smaller ones, has led to an evacuation of the area's residents. Preliminary reports indicate that no injuries have taken place but it will take some time before a full understanding of the incident is known. The company, which creates oilfield product chemicals, still does not know the full details of the incident. That another explosion has taken place, with the Dow Hahnville incident still in recent memory, leads to a lot of questions regarding the safety standards and practices being utilized at these facilities.

The Associated Press reports that the incident, which appears to have first begun at 4 pm today, featured a significant explosion that could be heard from more than a mile away. The incident led to a one mile radius surrounding the plant being evacuated as all plant employees are accounted for. While the State Police say no one was injured in the incident, previous chemical releases have proven that only after some time are the full effects of an explosion known.

A Multi-Chem Group in Houston spokesman says that the company is still in its exploratory phase and will provide details when they are available. Information is still scarce at this time but we will update this blog as it is available.

In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court's decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the "Plaintiffs") filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including "including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages." The suit sought to represent all individuals who were exposed to the coke dust, specifically:

"all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident."

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

Even before the district court issued its written order, Chalmette Refining petitioned the Fifth Circuit Court of Appeals for an interlocutory appeal over the decision to certify the class. The thrust of Chalmette Refining's appeal focused on the district court’s findings of "superiority" and "predominance" as required under Federal Rule 23(b)(3). "Determining whether the plaintiffs can clear the predominance hurdle set by Rule 23(b)(3) requires district courts to consider how a trial on the merits would be conducted if a class were certified." This, naturally, demands a fact-intensive analysis that "will vary depending on the circumstances of any case." The district court's order, in the Fifth Circuit's opinion, revealed that it failed to meet this requirement. Instead, it "adopted a figure-it-out-as-we-go-along approach that ... Fifth Circuit cases have not endorsed." For example, the district court's order provided no evidence that it meaningfully considered how the Plaintiffs’ claims would be tried, or that it weighed whether the case could be “streamlined using other case management tools, including narrowing the claims and potential plaintiffs through summary judgment." The district court also apparently failed to acknowledge or resolve the "significant disparities" among even the named class representatives concerning exposure, location, and mitigation. Thus, the Fifth Circuit concluded that by failing to adequately balance the common issues against the individual issues, the district court abused its discretion in determining that common issues predominated and in certifying the class. The court was careful, however, not suggest that class treatment is necessarily inappropriate for the case; instead, Fifth Circuit precedent simply required a "more rigorous analysis" than the district court conducted. Accordingly, the court reversed the district court’s class certification order and remanded the case to the district court for further proceedings.

The Fifth Circuit leaves open the possibility that class certification may still happen in this case if, on remand, the district court properly engages in the analysis required by the Circuit's jurisprudence and Rule 23. It is interesting to note that no evidence was presented by the Plaintiffs in the district court's original hearing on certification. Perhaps had more evidence been in play at that stage, the court would have had more information at its disposal on which to base its analysis and could have avoided the reversal on appeal. Ultimately, this case demonstrates the complexities of class action litigation and reminds plaintiffs that an experienced attorney is essential.

Continue reading "Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification (Part 2)" »

In this post, we will explore the basic concepts of a class action lawsuit. In particular, we will examine the rules that govern the process by which the court decides whether to recognize a class and permit a group of plaintiffs to litigate under one single action. In a subsequent post, we will examine a recent case from the Fifth Circuit Court of Appeals in which the defendant, a petroleum refinery, challenged the district court's certification of a class of plaintiffs following a chemical release in Chalmette, Louisiana.

A class action is appropriate when numerous plaintiffs who have experienced similar harm collectively bring a suit against the defendant. For actions filed in federal court, Rule 23 of the Federal Rules of Civil Procedure sets out the requirements for a court to certify, or recognize, a class in a particular case. The four central prerequisites include:

(1) numerosity--a sufficient number of plaintiffs that for each to bring a unique suit is impracticable; (2) commonality--questions of law or fact are common to each plaintiff; (3) typicality--the named parties’ claims are representative of those of all plaintiffs; and (4) adequacy of representation--the class representatives will fairly and adequately protect the interests of all plaintiffs.

If each of these requirements is met, the plaintiffs must then meet two additional burdens. First, they must show that questions common to all the plaintiffs predominate over questions that affect only certain individuals. Also, the plaintiffs must demonstrate that the class action is better than alternative methods for resolving the controversy. Feder v. Elec. Data Sys. Corp. The district court is responsible for determining whether the class will be certified. “The decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of Rule 23.” Castano v. American Tobacco Co. The court's "rigorous analysis" of the class question means "going beyond the pleadings ... [to] understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” This typically involves the court's allowing the parties to conduct discovery specifically on the issue of class certification before rendering the decision.

Given that class certification involves "important due process concerns of both plaintiffs and defendants," the district court's proper handling of the certification petition is essential. For this reason, Federal Rule 23(f) provides that the parties may file an interlocutory appeal to challenge the court's grant or denial of class certification. The appellate court is charged with ensuring that the district court conducted a sufficiently rigorous analysis if a party challenges the class certification, such as in the recent case of Madison v. Chalmette Refining LLC, which we will take up in a future post.

Continue reading "Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification" »

In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event - thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant's original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that "property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner." The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other's property, but rather damaging it through their own property) and noted that "Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation." As such, individuals whose land is damaged by the government have constitutional redress.

The Supreme Court has also provided five elements that must be proven in such a case: (1) that the property rights are at issue; (2) that the act alleged to have caused damages was undertaken for public purposes; (3) that the acts of the government violate Civil Code articles 667 through 669; (4) that the government has engaged in excessive or abusive conduct and (5) that their property has either been physically damaged or has suffered "special damage peculiar to their particular property." The Supreme Court has also found that as long as the activities on State land do not exceed the level of causing claimant some inconvenience there can be no taking or damaging of the property right.
Basically, in a case like this one, proof of personal injury, physical damage to property, or the presence of excessive or abusive conduct must be made. Here, the Court of Appeals found that it was unclear whether the trial court applied the correct legal criteria. Plaintiffs suffered inconvenience, but inconvenience alone is not compensable. The Court found that several errors were made at the trial court level:

First, plaintiffs can only be compensated for damages sustained by expansion of the treatment plant that occurred in 1997 and 1998 because earlier claims had prescribed, and as such, damage for odors existent in 1995 were awarded in error. Additionally, the court can only award stigma damages if they resulted from the expansion of the sewage treatment plant. However, plaintiff's real estate expert concluded that the proximity of the treatment plant generally resulted in property damage ranging from 13,000 to 30,000 per home. The expert did not consider the effect of the expansion in particular. The expert testified that only one home was actually damaged by the expansion itself due to the fact that post-expansion his home was no longer directly across the street from a BREC park. Other damages were awarded in error.

Finally, damages were also awarded to a number of plaintiffs for discomfort and inconvenience during the 17 months of expansion itself. However, the evidence did not establish absusive or excessive conduct or any physical damage or personal injury. Ill effects of construction are unavoidable and generally not compensable.
As this case demonstrates, sometimes litigation can be a rollercoaster with claimant's fighting for a favorable ruling only to have it reversed and damages rescinded. Competent representation is crucial to fight all of the battles in the court case, through trial, appeal, and beyond.

The tort of intentional infliction of emotional distress, as we have previously explored, occurs when the defendant purposefully engages in extreme or outrageous conduct with the goal of seriously upsetting the plaintiff. A different case is the scenario involving the plaintiff's mental distress that results from the defendant's negligent conduct. Commonly, a plaintiff can successfully recover for a claim of negligent infliction of mental distress when the distress arises out of a physical injury that is related to the defendant's negligence. Without physical injury, however, a plaintiff is far less likely to recover. The case of Taylor v. Novartis Crop Protection, Inc. provides an example.

On the evening of July 18, 1999, Novartis Crop Protection Corporation's facility in St. Gabriel released industrial ammonia into the air for approximately 15 minutes. Following the release, several hundred individuals who were present in or owned property around the St. Gabriel area filed a suit for damages against Novartis. The complaint alleged that as a result of the chemical release, the plaintiffs suffered "burning eyes, itching, burning skin, breathing difficulties, dizziness, nausea, diarrhea, headaches, anxiety, and fear for their physical well being." The complaint also stated that the incident caused considerable fear, anguish, discomfort, and inconvenience to the people in the communities" surrounding the Novartis facility. Novartis filed a motion for dismissal for those plaintiffs who were located outside of the "zone of danger" agreed upon by experts from both sides and who therefore could not have been exposed to the ammonia. The affected plaintiffs responded that their claim was not for physical exposure but for "mental anguish, emotional distress, inconvenience, and fear and fright." The trial court entered a judgment dismissing all plaintiffs who were outside of the "zone of danger," and those plainitiffs appealed.

In its analysis, the First Circuit Court of Appeal reaffirmed that under Louisiana law "a defendant will not be held liable for [damages] where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury." The narrow exception to this rule is where the plaintiff can demonstrate "special circumstances," which must be "more than minimal inconvenience worry." The court noted that the only special circumstances cited by the plaintiffs was a prior release of ammonia that occurred in 1999 and which required the evacuation of a school. But the court concluded that the prior incident did not rise to the level of "special circumstances" as required by Louisiana jurisprudence. (Examples of sufficient circumstances from case law include the negligent transmission of an erroneous message about a loved one's death; the mishandling of corpses; and damaging property while being observed by the plaintiff. See Moresi v. State for further discussion.) Further, the court noted that the plaintiffs failed to offer any evidence to show they had "suffered from genuine and serious mental distress." Accordingly, the court affirmed the trial court's judgment dismissing the plaintiffs whose claims included only mental distress.

This case further reinforces the fact that courts generally look unfavorably upon claims for mental or emotional distress when there is no physical manifestation of the injury. This may be due to the fact that mental harm is difficult to measure, as well as the potential for false claims.

Continue reading "Court Turns Away Plaintiffs' Mental Distress Claims After Chemical Release in St. Gabriel" »

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

A death occurred at the Chalmette Refinery on October 6 during an attempt to repair a hydrogen sulfide leak according to the St. Bernard Sheriff's office. A contract worker, Gregory Starkey, 33, of Roseland, collapsed and then died while working at the facility. Starkey was employed by TEAM Industrial Services of Harahan near New Orleans. The website for TEAM Industrial Services indicates the company specializes in industrial leak and valve repair, emission control, and other services related to mechanical and piping systems.

Exxon Mobil Corporation is the managing partner in charge of operations at the 196,000 barrel-per-day (bpd) Chalmette Refinery which is a 50-50 joint venture between Exxon and PDVSA, Venezuela's national oil company. According to Exxon spokesman Kevin Allexon, the detected hydrogen sulfide concentrations were purportedly "not considered harmful at the levels being monitored." Also, Exxon was "actively mitigating" odors from the leak. According to State Police, the hydrogen sulfide gas leak is considered contained rather than completely sealed pending delivery of a part. However, the leak was being monitored and believed to have no affect on offsite air. Nonetheless, both the leak and the fatality are currently under investigation.

The leak was first documented two days prior to the fatality and two days after had been contained but not yet completely sealed according to Louisiana State Police. As per Trooper Melissa Matey, the delay resulted from the need for a part to be delivered in order to completely seal the leak.

A spokesman for the State Department of Environmental Quality, Rodney Mallet, commented that the hydrogen sulfide was "not considered harmful at the levels tested by the monitors." However, even exposure to small concentrations can result in shortness of breath and eye irritation. Additional low dose exposure symptoms include nose and throat irritation. Exposure symptoms at higher concentrations may result in long-term and even permanent headache, diminished attention span, poor memory, and poor motor function as well as death.

Also of concern is a Labor Day accident at the same refinery wherein nineteen tons of spent catalyst rained down on an adjacent neighborhood in the form of a white powder dusting houses and vehicles. As the refinery initially reported only one ton being released, the public has been skeptical of the company and its facility. The Louisiana Bucket Brigade, a local environmental group focusing on industrial pollution, has noted the time frame of accidents. Their director, Anne Rolfes, observed that "one of the most revealing issues is that the problem came from a pre-existing leak that they had put a clamp on, and that clamp started to leak. It's really important to see the facility in context of these accidents."

Given that just a few breaths of air containing high concentrations can be fatal in combination with the worker's death, Exxon appears to be underreporting the level of hydrogen sulfide leaking during the fatal incident. The wide variety of people affected by these recent refinery spills should consider speaking to an attorney about their legal rights given the potential for current and future harm to the health of those near the incident. Whether last year's Hahnville leak or the Chalmette incidences, rights exist for those who have been affected by failures on the part of these facilities to keep the public safe. Contact a lawyer with the Berniard Law Firm today to find out your options regarding injuries you may have suffered during any of these incidences.

The Berniard Law Firm is look to tackle a negligent refinery by representing a Chalmette resident assaulted by chemicals released from a St. Bernard Parish oil refinery. While taking a walk through her neighborhood on the morning of September 6, 2009, the woman observed white dust covering homes and vehicles. She experienced exposure symptoms including difficulty breathing, coughing, sore throat, headache, and burning sensations in her nose and eyes. As the symptoms persisted, she went to a hospital the following day. The white powder comprised a spent catalyst including components of kaolin and titanium dioxide which are eye, skin and lung irritants. Portions of Chalmette, Arabi, and New Orleans' Lower Ninth Ward were blanketed with the fine white powder.

In addition to releasing a ton of spent catalyst, the refinery released two thousand pounds of sulfur dioxide, one thousand pounds of nitrogen oxide, and an unspecified amount of hydrogen sulfide. Not only was the refinery negligent in releasing the toxic chemicals but also for failing to notify area residents of the accident in a timely manner so that they could take precautionary measures. Moreover, children and pets are more susceptible to exposure symptoms due to their smaller size while residents with certain pre-existing medical conditions would also suffer greater harm than a healthy adult. For example, children have a greater lung surface area to body weight ratio along with other parameters that differ from adults leading to greater susceptibility to chemical inhalation effects at lower concentrations. Likewise, pre-existing medical conditions including chronic pulmonary disease and asthma increase susceptibility to exposure symptoms at lower concentrations.

Specifically, sulfur dioxide may induce acute exposure symptoms comprising irritation in the upper respiratory tract, nosebleeds and rhinorrhea (runny nose), coughing and choking, expectoration (coughing up phlegm), dysphagia (difficulty swallowing), and oropharyngeal erythema (redness). Although predominately affecting the upper respiratory tract via inhalation, sulfur dioxide also acts as an intense eye and skin irritant by combining with water producing sulfuric acid and sulfurous acid. Dermal exposure symptoms range from irritation to urticarea (itchiness) and burns. Given this high solubility, sulfur dioxide is also rapidly distributed throughout the body producing metabolic acidosis possibly inducing vomiting, diarrhea, abdominal pain, fever, headache, vertigo (dizziness), and agitation. Decontamination should include removal of contaminated clothing and rinsing of the skin and eyes. Reproductive and teratogenic effects (malformation of embryo, fetus) of exposure are unknown, which has raised concerns among women at varying stages of pregnancy at the time this accident occurred.

Hydrogen sulfide is an extremely fast acting chemical with high toxicity. Low level exposure symptoms include eye, nose, and throat irritation while moderate level exposure can lead to headache, dizziness, nausea, vomiting, coughing, and difficulty breathing. Notably, hydrogen sulfide is heavier than air resulting in accumulation in enclosed and low-lying areas. Consequently, exposure in children and pets is greater than in adults due to their shorter stature and smaller airways. Even at low levels, hydrogen sulfide inhalation may induce exposure symptoms of headache, dizziness, and upset stomach. Reproductive and teratogenic effects are unknown.

Low levels nitrogen oxide exposure symptoms include eye, nose, throat, and lung irritation as well as shortness of breath, tiredness, nausea, and lung fluid build up for one to two days. Of particular concern are reproductive animal studies revealing toxic effects on developing fetuses and alterations in genetic material. This is especially important for women who were pregnant at the time of exposure.

The involuntary chemical exposure suffered by area residents was exacerbated by the refinery's failure to notify thus depriving them of the opportunity to keep themselves and their children indoors or arrange to leave the contaminated area. None of the chemicals are as innocuous as area residents were led to believe, and no data is available to predict adverse consequences of the combined chemical exposure. For more information, please contact the Berniard Law Firm.

A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans' lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana's Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

This is not the first time that Southeast Louisiana has found itself on the receiving end of chemical releases. Aside from the BP oil spill that released hundreds of thousands of gallons of oil into the Gulf, the July 7th, 2009, release of ethyl acrylate by Dow in Hahnville led to hundreds of complaints related to health problems of individuals living or working in the area. While no legal outcome has come from this matter, it is important that people in Louisiana understand the unacceptable nature, both legally and in terms of common responsibility, for these incidences to be occurring and requires significant action on the part of the Department of Environmental Quality.

As was already noted, individuals who find the powder on their homes or property should photograph this in order to preserve record of the event. What's more, any individual who has suffered health problems related to exposure should contact a legal expert immediately to find out their rights due to this incident.