Class Action

February 23, 2017

Court of Appeal Upholds Class Action Against Housing Authority of New Orleans For Mold

Class action lawsuits are nontraditional litigation procedures. The ultimate purpose is to not only get relief for a defined class of persons but also a relief for all others similarly situated. See Brooks v. Union Pacific R.R. Co., 13 So.3d 546 (La. 2009). Oftentimes, the issue of who is in the defined class can be complicated in its own right, apart from the substantive issues of the particular case. The trial court has broad authority in deciding whether to certify a class. See Chiarella v. Sprint Spectrum LP, 921 So.2d 106 (La. Ct. App. 2005).

Recently, the Housing Authority of New Orleans (HANO) was facing a class action lawsuit for breach of contract. HANO failed to uphold its responsibilities and duties to the tenants of a housing development pursuant to a lease agreement. The District Court defined the class to include all leaseholders and permanent residents under HANO’s jurisdiction who were adversely affected by the presence of toxic mold in their apartments. The class action plaintiffs asserted that HANO’s failure to keep the apartments and common areas free of mold violated its contractual duty to the federal government, specifically the Department of Housing and Urban Development (HUD).

This case centers on whether plaintiffs, Janice Claborne and Sheryl Jones, could rightfully bring a class action under Louisiana law. In other words, were Claborne and Jones part of the defined class of persons. There are several requirements that must be satisfied before a class action can be brought under Louisiana law: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, and (5) predominance and superiority.

February 20, 2017

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

by Berniard Law Firm

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

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

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

September 29, 2016

Police’s Use of Tear Gas at New Iberia Louisiana Sugar Cane Festival Leads Courts to Analyze Class Action Certification Standards

by Berniard Law Firm

On September 24, 2006, New Iberia, Louisiana held its annual Sugar Cane Festival (“Festival”). Festival goers tend to enjoy, among other things: sugar cookery contests, photography shows, art shows, music, and a wide variety of food. However, on this particular day, those in attendance were exposed to tear gas deployed by local officers responding to vehicles blocking the street, causing traffic standstills. At around the time that the officers dispatched, Delphina Walker, owner of Gator’s Barbecue (“Restaurant”), was hosting quite a few patrons. Walker had hired a DJ for the event and to accommodate the hundreds of people gathered around the Restaurant, the DJ played loud music. The Restaurant is located on the 600 block of Hopkins Street near the intersection of Hopkins Street and Robertson Street, the area where the police were dispatched.

As the crowd, comprised of adults as well as children, proceeded to dance and enjoy the Festival in a possibly rowdy fashion, tear gas was deployed by the police officers. Many of those effected by the gas claimed that the police deployed it with no warning. The police, however, claim that they had issued numerous warnings through a public address system. The facts recalled by the police and some of those in the area where the gas was used are in conflict in other instances as well. For example, there is dispute as to whether or not there was fighting amongst individuals in the crowd and whether or not motorcycle riders revved their engines in response to police warnings.

In response to the events, five individuals filed for certification of a class-action suit for damages. At the trial level, the court granted the certification but the Defendants, a Sheriff and five of his deputies, appealed the certification. Ultimately, while the issues raised by the Defendants were valid, Louisiana’s Court of Appeal for the Third Circuit (Court of Appeal) found them to insufficient to decertify the class, as it affirmed in part and remanded in part.

September 12, 2016

New Orleans Insurance Claim Class Action Ruling Discusses Dismissal of Certain Claims

by Berniard Law Firm

more-storm-surge-debris-1560382-1024x683 Class actions can be complex cases that lead the parties involved to appeal many of the decisions of the trial court. Sometimes the appeals court will determine that certain issues need more review at the trial court level prior to any decisions being issued on their part. A recent case out of Orleans Parish, involving a class action lawsuit for claims of improper insurance claim handling and delay of repair claims discusses the limits of what is proper for appeals court in Louisiana to review.

A condominium complex in New Orleans sustained flood and wind damages following hurricanes Katrina and Rita. The plaintiff’s who were owners of the condominiums filed a class action lawsuit against Harbor Homeowners’ Association, Inc and its insurer as well as the president of the Homeowners’ Association, asserting three claims. The claims included (1) unlawfully increasing the insurance deductible without notice and approval from condo owners, (2) unlawfully entering the condos without authorization as well as discarding, gutting, destroying, and damaging contents, and (3) negligently failing to supervise and administer the rebuilding of the condos, resulting in damages and repair delays.

The plaintiffs filed a motion for class certification twice. After a scheduled hearing, the defendants moved for involuntary dismissal, claiming the plaintiff did not establish the required elements for class certification. Following briefs from post-hearings, the trial court granted the class certification motion for the plaintiff only on the delay of repairs and insurance claims and denied the defendant’s involuntary dismissal motion. An appeal and oral arguments followed in the Louisiana Fourth Circuit of Appeal. After those arguments both sides filed motions to file post-arguments briefs in the appeals court.

September 11, 2016

St. John the Baptist Parish Insurance Claim Lawsuit Discusses Prescription Deadlines

by Berniard Law Firm

another-mobile-home-victim-of-katrina-1560379-1024x683 Hurricane Katrina wreaked havoc on Louisiana in 2005. As a result of the storm insurance claim litigation continued on for years thereafter. In Louisiana there are short deadlines for filing a lawsuit if you believe you were treated unfairly by your insurance company. If you do not file your lawsuit on time you might be met with a Motion to Dismiss, as was Lionel Williams who sued Louisiana Citizens Property Insurance Company for claims of mishandling of his Hurricane Katrina insurance claims.

Lionel Williams, of Reserve, Louisiana, sued Louisiana Citizens Property Insurance Corporation (“Citizens”) in state court for claims relating to Citizens’ handling of his insurance claims for property damaged by Hurricane Katrina. Mr. Williams did not file his lawsuit until September 20, 2011. After receiving the lawsuit Citizens filed an exception of prescription. Prescription is the set of procedural rules in Louisiana that dictate how long a person has to file a lawsuit after being harmed. So, in filing an “exception of prescription” what the Citizens was seeking to do was to get Mr. Williams case thrown out of court before any trial of the facts occurred. To defend against the prescription exception Mr. Williams alleged that he was a putative member of several class actions, that he had not opted out of the class actions, and that because he was a member of those various class actions prescription was suspended in his case. Because Mr. Williams alleged he was a class member of several class actions the trial court was forced to look at the claims made and procedural posture of all of those cases and then make a decision as to what claims could survive in Mr. Williams case. Some claims were dismissed and some were allowed to continue on.

In hoping that the appellate court would overrule the dismissal of his certain claims of his lawsuit, Mr. Williams first argued that he was a member of various class actions filed after Hurricane Katrina. La. C.C.P. art. 596(A) provides that a class action lawsuit suspends prescription as to all members of the class. That statute further provides that this suspension continues until 30 days after one of three events occurs: “1) a person elects to be excluded from the class by submitting an election form; 2) a person is excluded from the class by the redefinition or restriction of the class (and notice is issued); or 3) the action is dismissed, the demand for class relief is stricken, or class certification is revoked or refused (and notice is issued).” These three “statutory triggers” are exclusive. Unless one of these “statutory triggers” are present, the prescription period continues to be suspended.

July 16, 2016

Xarelto Lawsuit Claims: Five Things You Need To Know

by Berniard Law Firm

drugs-ii-1505930 Xarelto was produced and marketed by Bayer and Johnson & Johnson as a one-a-day prescription blood-thinner primarily for the treatment of Atrial Fibrillation. Its purpose is to prevent the occurrence of patients receiving strokes. Since Xarelto’s FDA approval in 2011, many patients have been harmed by the administration of this drug. If you or a loved one have taken Xarelto and suffered any adverse side effects, you may have a substantial claim for damages. Here are five things you need to know before moving forward:

There are currently thousands of lawsuits being filed in Louisiana Federal Court that will determine whether Bayer and Johnson & Johnson acted negligently in conducting trials before releasing Xarelto to the market. There are over five thousand cases consolidated under action MDL – 2592. The deadline for filing under this action was May 20, 2016, but patients of Xarelto may still file under this bundled claim if they pay standard filing fee. Early trial cases are to begin as early as August 2016.

2. The most dangerous side effect from taking Xarelto is irregular bleeding. Other side effects include infections associated with knee or hip surgery, bleeding in the brain, swelling of the lower limbs, and difficulty breathing. If you have experienced any of these symptoms while taking Xarelto, you may be able to recover for medical costs, lost wages, pain and suffering, as well as other related claims.

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.

January 7, 2014

Louisiana Medical Malpractice Case Examines Federal Antidumping Laws

by Berniard Law Firm

A recent case arising from occurrences in West Carroll Hospital considers the Louisiana and federal antidumping laws. In addition, it also explains the requirements for a case under medical malpractice. Several hospitals were involved in the case, but only two were actually involved in the suit. A woman who had serious kidney and urinary problems was admitted to West Carroll Hospital; however, once the hospital realized that they did not have the specialized equipment to treat her, they desperately tried to find somewhere to transfer her that did have the ability to help her. After several days of miscommunications, the woman died because they could not transfer her fast enough to address her medical issues. Her six daughters then attempted to find some kind of remedy against the hospitals for the wrongful death of their mother.

In Louisiana, La. R.S. 40:2113.4-2113.6, the “antidumping law,” requires hospitals to take patients who need emergency services and live in the territorial area regardless of whether they are able to pay for their care or if they have insurance. Federal law has the same type of requirement under the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act even specifies that hospitals cannot turn away patients who have Medicare or Medicaid, and hospitals cannot discriminate based on race, religion, economic status, or national ancestry.

The Emergency Medical Treatment and Active Labor Act further defines “emergency” as a “physical condition which the person in imminent danger of death or permanent disability.” The definition of “emergency services,” then, is “those services which are available in the emergency room and surgical units in order to sustain the person’s life and prevent disablement until the person is in a condition to travel.” Louisiana law requires that the patient be stabilized before they are moved to another facility. However, the Louisiana antidumping law does not permit a private cause of action. That is, an individual cannot sue the hospital for a violation of this law. Even if they could, however, the first hospital, West Carroll, admitted her without incident, so there would be no claim under the antidumping law.

December 29, 2013

Rayville Doctor Found to Have Acted Within Standard of Care

by Berniard Law Firm

Going to the hospital can be an unsettling experience. There are many ways treatment can go wrong and result in serious injury or death. Medical conditions can be misdiagnosed or wrongly diagnosed, wrong prescriptions or doses can be prescribed, and surgical errors can occur. When these mistakes happen and a medical malpractice lawsuit is filed against a doctor and hospital, the trier of fact must determine three elements in order to decide whether or not medical malpractice occurred, which often requires a careful examination of a doctor’s standard of care.

In a recent case heard by the Court of Appeal for the Second Circuit, Crockham v. Thompson, a woman filed a medical malpractice lawsuit against her mother’s doctor and hospital after her mother died from a brain hemorrhage induced by high blood pressure. According to the lawsuit, the mother had been paraplegic for 20 years and often suffered from bowel blockages. In this instance, the woman went to the hospital to have a blockage removed, but failed to get better after the operation was completed. The plaintiff took her mother back to the hospital where she was given oral medication for her high blood pressure, but she later suffered the stroke and her family chose to take her off life support.

In her wrongful death claim against the doctor, the plaintiff in this case claimed the doctor breached his duty of care to the deceased. The plaintiff claimed the blood pressure medication should have been given intravenously rather than by pill because the pill would have bypassed her mother’s non-functioning bowel. Also, the plaintiff suggested the standard of care had been breached because the doctor failed to make his daily round in the morning, failed to admit the patient to the ICU, and failed to develop a cardiovascular profile for the patient. The plaintiff supported her argument with the fact that the hospital’s medical board had found the doctor breached the standard of care. However, at trial, a jury found for the doctor and denied the plaintiff compensation. The Court of Appeal affirmed.

December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

by Berniard Law Firm

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.