Articles Posted in Mass Tort

ancient-ruins-flooded-by-water-1622023-1-1024x683There are multiple requirements and policies that claimants must follow in order to be eligible to recover on a claim under a National Flood Insurance Program (“NFIP”) Standard Flood Insurance Policy (“SFIP”). See 44 C.F.R. pt. 61, app. A(1) art. VII sec J (2009). Failure to comply precisely with these requirements will prevent claimants from recovering for their claims. The following lawsuit reviews the “proof of loss” requirement and what can occur if one is not submitted with your flood claim. 

Cummings’s home in LaPlace, Louisiana was damaged by Hurricane Isaac in August 2012. Cummings submitted a flood loss claim to Fidelity. Fidelity assigned an independent adjuster to inspect the flood damages. Cummings worked with the independent adjuster to file a signed proof of loss for approximately $42,000, as required by his SFIP. Fidelity subsequently paid Cummings for the $42,000 in building damage, as requested in his proof of loss. Cummings also submitted a four-page list of the contents he claimed were damaged in the flood. He claimed these had a total replacement value of over $104,000. However, Cummings never submitted a proof of loss for the claimed damages to his home’s contents. Cummings also failed to include the amount on the front page of his proof of loss. Fidelity denied Cumming’s claim for content loss, providing a letter that stated that Fidelity required additional proof to assist in proof of damage and ownership of the claimed contents. The letter instructed Cummings to review his insurance policy agreements and forms, but did not tell him to submit an additional signed and sworn proof of loss.

Cummings filed a lawsuit for the contents of his house that he claimed were damaged in the flood. The district court awarded Cummings $25,000 plus interest, holding that Cummings’ photographs, testimony, and written statement were sufficient proof of loss. Fidelity appealed.

rain-rain-and-more-rain-1473187-1024x768The National Flood Insurance Program (“NFIP”) is intended to provide affordable flood insurance on fair terms. The Federal Emergency Management Agency (“FEMA”) is responsible for administering and regulating NFIP. There are multiple requirements and policies that claimants must follow in order to be eligible to recover on their claim. The following lawsuit looks at the requirements necessary to prove flood damages under the terms of a Standard Flood Insurance Policies (“SFIP”).

Construction Funding owned a piece of property located in Mandeville, Louisiana that was insured under a SFIP issued by Fidelity Insurance Company. Construction Funding claimed that this property suffered flood damage from Hurricane Isaac in August 2012. Construction Funding submitted a claim to Fidelity for a loss of approximately $76,000.

Fidelity is a participant in the NFIP and issues SFIP to NFIP participants. Although FEMA sets the terms of the SFIP, Fidelity is responsible for handling all claims arising under its SFIPs. Fidelity denied the claim, stating that the damages were unsubstantiated and there was insufficient proof that the damage was caused by Hurricane Isaac rather than a prior flood. Thereafter, Construction Funding filed a lawsuit against Fidelity. Fidelity claimed that Construction Funding was not eligible to bring the lawsuit because it had not complied with the SFIP’s terms.

oil-power-1182675-1-1024x768Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill.  The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana.  The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA.  One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out.  The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA.  To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow.  See  Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993).  Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party.  See OPA, 33 U.S.C. § 2713 (2016).

ear-1419038-905x1024This afternoon a lawsuit was filed by the Berniard Law Firm and Martzell, Bickford and Centola Law firm on behalf of Yuri M. Johnson against the 3M Company in the United States District Court for the Eastern District of Louisiana. The Plaintiff, Yuri M. Johnson, is a US Army combat veteran. During his time with the Army, he was stationed at Jackson Barracks located at New Orleans, Louisiana. Yuri was deployed overseas in Iraq in 2005, deployed to Camp Shelby in Mississippi in 2007 and also was deployed to a base in Michigan, in 2009. Yuri alleges that while serving with the army he was supplied defective dual-ended Combat Arms™ earplugs to protect his hearing.

Unfortunately, the earplugs supplied to Yuri during his time with the army were the same earplugs that were the subject of a whistleblower lawsuit that alleged the earplugs contained a dangerous design defect. The whistleblower lawsuit went on to allege that when the earplug is used the way it is supposed to be used it can become loose in the ear canal which leads to a failure to provide hearing protection. As a result of that whistleblower lawsuit, the Defendant 3M agreed to pay $9.1 million to resolve allegations that it supplied the United States with defective dual-ended Combat Arms™ Earplugs. See United States of America ex rel. Moldex-Metric, Inc. v. 3M Company;

As a result of using these earplugs during combat and training, Mr. Johnson alleges that he continues to suffer daily from tinnitus, hearing loss, and other damages. According to the allegations of the lawsuit, 3M employees were aware of the defects as early as 2000, several years before 3M/Aearo became the exclusive provider of the earplugs to the military. The lawsuit goes on to state, that despite this knowledge, in 2003, Aearo submitted a bid in response to the military’s Request for Proposal to supply large quantities of these defective earplugs and entered into a contract pursuant to which it became the exclusive supplier of earplugs to the military.

earplugs-1426519-1024x768
In May of 2016, a groundbreaking whistleblower lawsuit was filed against the 3M company. In this lawsuit filed in the United States District Court for the District of South Carolina, the Plaintiff alleged that the Defendant 3m sold defective earplugs (hearing protection) to the United States government for more than a decade. The lawsuit alleged that not only were these defective earplugs sold to the government but the allegations in the lawsuit were that 3M knew of the defect during the time they were sold. The earplugs were sold the United States government for use by the armed services from 2003 to 2015.

The lawsuit went on to claim that the earplugs were standard issued dual-ended Combat Arms™ brand that was issued to branches of the military service during times of combat. Due to the defect, the lawsuit alleged that it could have caused significant hearing loss to thousands of soldiers during the relevant time period. If a member of the armed services has hearing loss that they contracted during their time while serving the country the United States ultimately is on the hook for their medical cost related to the hearing loss. Therefore, the lawsuit alleged that these earplugs could end up costing the United States government through the Veterans Affairs medical treatment system millions or even billions of dollars for treatment related to hearing loss and tinnitus. The allegations of this lawsuit were absolutely shocking and justice must be sought for these claims.

On July 25, 2018, 3M settled with the United States for the claims made in the whistleblower lawsuit. 3M did not admit any of the allegations made in that lawsuit, but they did agree to pay over nine million dollars to end the litigation. The Justice Department of the United States put out a press release after the settlement stating that they are committed to using the False Claims Act to protect the taxpayer dollars from waste, fraud, and abuse. The Berniard Law Firm applauds the Justice Department in the prosecution of all whistleblower claims.

oil-refinery-1239476-1024x683In the midst of a very active hurricane season, it is important to remember that Louisiana is no stranger to this type of inevitable damage. However, the dangers involved in disaster clean-up efforts are often forgotten, and far too often people who aid in these efforts aren’t compensated fairly when things turn awry. A recent lawsuit helped linemen who faced similar dangers recover for injuries they sustained during a disaster clean-up.  

Due to a severe storm in 2006, CITGO Petroleum Corporation’s Calcasieu Parish Refinery stormwater and storage system overflowed, resulting in a major oil spill. Experts described the spill as being “catastrophic.”  The storm caused 21 million gallons of wastewater to escape, including 17 million gallons of contaminated wastewater and 4.2 million gallons of slop oil. The escaping hazardous waste spilled into surrounding levees and dikes and contaminated over 100 miles of shoreline along the Calcasieu River and required several months of clean up. Employees of Ron Williams Construction that worked at CITGO’s refinery filed a lawsuit for chemical exposure.

Prior to this lawsuit, several other employees of Ron Williams Construction filed a lawsuit against CITGO (for ease of reference, this prior case will be referred to as Arabie 1) and received a favorable verdict. Arabie v. CITGO Petroleum Corp., 89 So.3d 307 (La. 2012). In Arabie 1, the Ron Williams Construction employees received damages, but after several appeals, the Louisiana Supreme Court reversed the district court’s award of $30,000 in punitive damages to each employee. This still resulted in a favorable verdict for the employees, but they were awarded less in damages.  

more-large-yard-ornaments-1560393-1024x683The government owes a duty to its citizens to serve their best interests. But what happens when the government breaches that duty? Can we, as citizens, sue our government for perceived wrongs it has committed? Can we recover damages? This is an especially critical issue when it comes to a government’s responsibility to its citizens in times of natural disasters, as illustrated by the following case.

On August 26, 2012, in anticipation of Hurricane Isaac’s arrival, both Governor Bobby Jindal and St. John the Baptist Parish (“Parish”) President, Natalie Robottom, declared a state of emergency. Hurricane Isaac hit three days later. On October 26, 2012, sixty Parish residents (“Residents”), who suffered flood damages as a result of Hurricane Isaac, filed a class action against the Parish. The Residents alleged that the Parish was negligent and at fault for its failure to warn of the probability of flooding, its failure to declare a mandatory evacuation, and its failure to take steps to lessen the damage to the Residents.

The Parish filed an exception of no cause of action on June 24, 2014. An exception of no cause of action raises the question of whether the law provides a remedy to anyone under the facts alleged in the petition. Specifically, the Parish claimed it was entitled to immunity from the Residents’ claims under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“Act”). The Fortieth Judicial District Court Parish of St. John the Baptist held that the Parish was immune to the Residents’ claims under the Act. Accordingly, the Trial Court granted the Parish’s exception of no cause of action and dismissed the Residents’ claims. The Residents attempted to amend their petition for damages to try and overcome the immunity defense but the Trial Court denied this request.  The Residents filed an appeal, arguing that the Trial Court erred in dismissing their claims based on the Parish’s immunity.

sea-1489887-1024x683The United States judiciary is often called upon to decide upon large-scale international disputes. From the trials of foreign government officials for human rights violations to the trials of multinational corporations for environmental damage the world over, U.S. courts play a critical role in international dispute settlement. In a recent case, a number of the coastline Mexican states filed lawsuits against BP and the other companies involved in the drilling base’s failure in the U.S. District Courts. These lawsuits raised complicated questions of international law, federalism, and nuanced negligence law.  

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

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

pregnant-1-1431161-683x1024While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

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

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

chemicals-1240490-1024x688Bringing a mass tort claim is an extremely complicated task, even for the best of lawyers. Luckily, the attorneys for a group of Plaintiffs in a suit against Evans Harvey Corp. and its insurer, Lexington Insurance Co., knew exactly what they were doing. In the end, each Plaintiff was awarded damages ranging from $2,500 to $13,500. The following discussion serves as an example of one of the rare successes in the mass tort context.

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

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