March 21, 2023

All or Nothing—Piecemeal Peremptory Exception Reversed for Louisiana’s Drug Fraud Case

owens_drug_company-1024x857 The legal system is complicated, with many “dos-and don’ts.” Whether or not you can have your case heard in court first requires following the rules guiding the sufficiency of your claim. If your complaint fails to show that you have a right to bring the case against your defendant, your case might be dismissed. But how strictly interpreted is this rule? What does it look like when a cause of action is sufficient to be heard or ripe for dismissal?

The State of Louisiana brought a lawsuit against various pharmaceutical companies participating in manufacturing and selling Actos. The State alleged that the pharmaceutical companies misrepresented Actos’s efficacy and side effects. The State also claimed that research showed that Actos greatly increases the chance of bladder cancer. The State alleged the pharmaceutical companies failed to disclose this information.

In its case against the pharmaceutical companies, the State alleged that it would not have bought and distributed Actos if its risks had been clarified. Because of the drug companies’ alleged misrepresentation, Louisiana sought to recoup damages due to fraud, redhibition, unjust enrichment, and infringement of the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1405, and violations of the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1. In response, the drug companies brought various objections—peremptory exceptions including no cause of action, res judicata, no right of action, and dilatory exceptions including vagueness or ambiguity of the State’s petition, and the petition’s not following state law requirements. La. C.C.P. art. 891.

March 18, 2023

Judicial Notice of Facts, When Can and Can’t it Be Used in Louisiana Trials

by Berniard Law Firm

refinery_petroleum_oil_industry-2-1024x683 When another or a company’s actions harm a person, he is entitled to financial relief under Louisiana law. The law also requires proof of damages to prove entitlement to monetary compensation. Damages are proven by submitting facts to a trial court. Sometimes the parties agree upon the facts, and sometimes they are disputed.

Another way of providing facts to the Court is through Judicial Notice. This legal concept allows a court to take notice of facts generally known within a community or otherwise cannot be reasonably questioned. What may be known in the community can still be a disputed issue at trial. The following case, which involved the Berniard Law Firm’s clients, raised the question concerning judicial notice of facts when it can and cannot be used in Louisiana trials.

An industrial accident occurred at Chalmette Refining’s St. Bernard facility on September 6, 2012, due to an emergency shutdown. The sudden shutdown caused a release of nineteen tons of regenerated catalyst over a large portion of St. Bernard Parish and Orleans Parish homes and property.

March 11, 2023

Louisiana Court Reverses Company’s Liability to People Allegedly Exposed to Chemical Leak, Finding No Evidence of “Specific Causation”

by Berniard Law Firm

gefahrguttransport-1024x768 When a chemical leaks from a local business and spreads to a residential area, it is easy to assume that the company has exposed itself to liability for every person exposed to the leak. But what does someone have to prove to be compensated for their exposure? A case out of Avondale explores this question after twenty people were claimed to have been exposed to hydrochloric acid (HCl).

In 2001, a storage tank belonging to McGowan Working Partners, Inc., an oil and gas company, began to leak, causing a vapor solution of HCI and water to blow from the defendant’s property in Avondale to the northwest into the intersection of Jamie Blvd. and Highway 90. Before the leak, a McGowan employee replaced a clear plastic hose on the storage tank and used a nylon fitting to connect the hose to the tank’s valve. Unfortunately, the employee was unaware that HCI causes nylon to deteriorate. Several days later, 600 gallons of an HCl solution were unloaded into the storage tank, and about 470 gallons escaped onto the ground of the McGowan property. The HCI vapor began to spread off the property at 3:10 am, and the valve from the storage tank was shut off at 4:35 am. People exposed to HCI can experience eye and nose irritation which could develop into throat irritation and breathing difficulty. The HCI emissions were shown to stop affecting people at 5:30 am.

Twenty people who lived and worked in the surrounding area sued McGowan in a mass tort suit for exposure to the HCI vapor. A mass tort is when multiple people come together to file a lawsuit against a person or entity responsible for causing all their injuries. The trial court ultimately sided in favor of all twenty plaintiffs and awarded them damages ranging from $1,000 to $8,000.

June 5, 2020

CLASS ACTION NOTICE FOR THE DOW CHEMICAL JULY 2009 ETHYL ACRYLATE LEAK CLASS ACTION

by Berniard Law Firm

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233 Class Members Please Take Notice of the Following Important Announcement:

CLASS ACTION NOTICE

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233, SECTION: F; JUDGE: MARTIN L.C. FELDMAN, MAG: #4, KAREN WELLS ROBY

May 18, 2020

CLASS ACTION NOTICE FOR THE DOW CHEMICAL JULY 2009 ETHYL ACRYLATE LEAK CLASS ACTION

by Berniard Law Firm

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233 Class Members Please Take Notice of the Following Important Announcement:

CLASS ACTION NOTICE

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233, SECTION: F; JUDGE: MARTIN L.C. FELDMAN, MAG: #4, KAREN WELLS ROBY

May 22, 2019

Berniard Law and Martzell, Bickford & Centola making progress in 3M EarPlug Hearing Loss and Tinnitus Lawsuits

by Berniard Law Firm

The Berniard Law Firm and Martzell, Bickford and Centola Law Firm have made strides in a multidistrict litigation lawsuit against 3M Company concerning the 3M dual-ended Combat Arms™ earplugs supplied to the United States military personnel from 2003-2015. After a whistleblower lawsuit alleging a defect in the earplugs, 3M agreed to pay over 9 million dollars to end litigation surrounding the case. However, 3M did not admit to any defect in the product. Considering the vastness of this case spanning to courts in Indiana, Georgia, Tennessee, Florida, and Louisiana and many others, the case has been centralized to be litigated in the United States District Court of Florida Pensacola Division as of April 9, 2019.

The Berniard Law Firm and the Martzell, Bickford and Centola Law Firm are already involved in the multidistrict litigation process representing hundreds of veterans and their interests, and the firms expect to file hundreds of these lawsuits in the coming months. Moreover, Jeffery P. Berniard is seeking a leadership position in this multidistrict litigation case and will be appointed as a member of a committee to work on behalf of all of the Plaintiffs who file cases into the consolidated litigation. The leadership position would entail being part of a team that is responsible for coordinating discovery and other pre-trial work in this MDL. As of April 19, 2019, the Court began the process of appointing the plaintiff leadership structure. Considering Mr. Berniard’s participation in past mass litigation cases and the high volume of clients signed onto this case it is expected that Berniard Law Firm and Martzell, Bickford and Centola Law Firm will be active in this litigation.

A recent Order by the Court task with dealing with the Pretrial concerns of these consolidated cases allows for “Direct Filing” into the MDL. Usually, the procedural rules of Federal Court do not allow Plaintiffs to file lawsuits in Districts where they have no jurisdiction or venue. However, in order to promote efficiency the transferee district, Judge M. Casey Rodgers, is allowing Plaintiffs to direct file their 3M Tinnitus and hearing loss lawsuits into her district. This was a great decision by the Court and The Berniard Law Firm and the Martzell, Bickford and Centola Law Firm will file hundreds of lawsuits on behalf of their clients into this district in the coming months. The “Direct Filing” Order does point out that filing into the transferee district has no effect on the Defendant’s ability to allege a statute of limitations defense. This means that if your case is filed late you could lose all rights that you have to go after 3M or any party who could be held responsible for your hearing loss or tinnitus. You should act immediately in order to ensure you protect your rights.

May 20, 2019

If you are a veteran and currently suffering from hearing loss or tinnitus, we want to help!

by Berniard Law Firm

memorial-day-1446659-1024x683 A report from the U.S. Department of Veterans Affairs (VA) medical centers shows that Tinnitus and hearing loss are the number one and two health conditions among military veterans. In 2017, almost two million Veterans were receiving disability compensation for tinnitus and over a million were receiving compensation for hearing loss. Recently a whistleblower lawsuit was settled that could shed some light on why so many of our Veterans are having hearing related issues even though they were supplied earplugs. While 3M did not admit any guilt in settling the lawsuit, many new lawsuits are being filed on behalf of the individual Veterans who have hearing loss or Tinnitus in order to seek compensation for 3M allegedly knowingly supplying faulty earplugs to the United States Government for use by members of the Armed Services.

The Berniard Law Firm and Martzell, Bickford and Centola Law Firm have already taken steps to protect veterans that are suffering from hearing loss and/or tinnitus at the hands of the 3M Company. As a whistleblower lawsuit alleges in 2016, 3M dual-ended Combat Arms™ earplugs supplied to soldiers from 2003-2015 contained a dangerous design defect. The lawsuit alleges that when the earplug was used as it was intended to be used, the plug can become loose in the ear — thus leading to a failure in providing vital hearing protection. Moreover, this lawsuit alleges that 3M employees were aware of these dangerous defects as early as 2000, three years before 3M became the sole provider of earplugs to the United States military.

The lawsuits that have been filed by numerous law firms alleging that 3M knowingly sold faulty earplugs to the U.S. Department of Defense have all been consolidated in one centralized court by the Judicial Panel on Multidistrict Litigation. The Northern District of Florida has been selected as the transferee district, with Judge M. Casey Rodgers presiding over the centralized cases. This means that any case filed by an individual that alleges 3M caused them harm due to use of the dual-ended Combat Arms™ earplugs will be transferred to Judge Rodgers court where she will rule on issues related to the cases. The Judicial Panel on Multidistrict Litigation decided to consolidate all of the cases in Judge Rodger’s Court in order to eliminate duplicate discovery, to eliminate inconsistent pretrial rulings as well as to generally conserve the resources of all the parties involved include the judiciary. The Berniard Law Firm and Martzell, Bickford and Centola Law Firm are actively participating in these coordinated proceedings in Judge Rodger’s court and will continue to work on behalf of all the Plaintiffs with cases filed into the transferee district.

April 19, 2019

Court Reverses Award of Damages for Failure to Comply with Flood Insurance Requirements

by Berniard Law Firm

ancient-ruins-flooded-by-water-1622023-1-1024x683 There 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.

April 18, 2019

Court Affirms Denial of Claim for Failure to Comply with Flood Insurance Requirements

by Berniard Law Firm

rain-rain-and-more-rain-1473187-1024x768 The 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.

March 31, 2019

Requirements for Claims under the Oil Pollution Act

by Berniard Law Firm

oil-power-1182675-1-1024x768 Waiting 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).