Articles Posted in Product Defect

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boat_rowing_boat_blue-1024x746Hydraulic steering is part of modern-day recreational vessels. When a boat’s hydraulic steering fails, what party bears liability? The owner, driver, or manufacturer? In the following case, the Louisiana 3rd Circuit Court of Appeal was asked to determine liability and proper damages when a boat’s hydraulic steering system failed.

On May 7, 2005, a boat owned by Glen Vamvoras and operated by his son Daniel Vamvoras was traveling in Lake Charles when its steering failed. As a result, the boat spun wildly, throwing its passenger overboard. The passenger, Derek Hebert, was then struck by the boat’s propeller and tragically died. 

The Louisiana Department of Wildlife & Fisheries (“Wildlife & Fisheries”) investigated the accident. It determined that the pre-owned boat purchased by defendant Glen Vamvoras lost its steering due to a hydraulic fluid leak on the boat’s steering system’s hydraulic lines at the hose/nut of the coupling assembly. Teleflex was the manufacturer and supplier of the boat’s hydraulic steering system, but the original Teleflex hoses of this vessel had been replaced by persons unknown with a non-Teleflex hydraulic hose. 

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owens_drug_company-1024x857The 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.

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ladder_sky_pig_iron-1024x684Imagine an injury on a ladder, lawnmower, boat, or other manufactured product. The product might appear defective; however, is defectiveness sufficient to win a lawsuit against the manufacturer? Under Louisiana law, to prevail in a lawsuit alleging medical injuries from a defective product, a plaintiff must provide adequate medical evidence to support that the injuries likely resulted from the defective product. This is referred to as “medical causation.” Without establishing medical causation, you may not be able to recover for your injuries.  

Craig Andrews was a river pilot. He injured his hip after climbing a ladder that he alleged was negligently rigged. After that, he and his wife sued Lomar Shipping, alleging that his injuries resulted from climbing their negligently rigged ladder.

The United States District Court for the Eastern District of Louisiana granted summary judgment under Fed. R. Civ. P. 56 in favor of Lomar Shipping. Summary judgment means that the court ruled in favor of a party (here, Lomar Shipping) before trial. The District Court explained that Mr. Andrews did not submit adequate medical evidence to support that climbing the ladder he alleged was negligently rigged caused his injuries. Therefore, summary judgment was warranted because there was no genuine issue for trial. 

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louisiana brain injury lawyerIt can be puzzling — if not outright humorous — to observe the warnings in many pharmaceutical advertisements about how a drug’s side effects can be so severe that the potential harms outweigh the possible benefits. What’s not at all funny is when one of those side effects causes a patient actual harm. 

Cory Jenkins began taking the FDA-approved drug Abilify in October, 2010 as part of ongoing treatment of his condition. One known side effect of Abilify is tardive dyskinesia, a serious neurological disorder that causes muscle twitching. Jenkins began showing symptoms of dyskinesia in late 2012 and early 2013. He visited the Ochsner Medical Center in New Orleans and was instructed to stop taking Abilify. Shortly thereafter the twitching ceased. By August of 2013, the symptoms returned, even though Jenkins was no longer taking Abilify. In October, 2013 Jenkins sought care from several neurologists, including one who officially diagnosed him with dyskinesia. In October, 2014 Jenkins filed a lawsuit for damages against Bristol-Myers Squibb Company and Otsuka American Pharmaceutical Inc., the makers of Abilify.

In the U.S. District Court for the Eastern District of Louisiana (“District Court”), Jenkins asserted two claims under the Louisiana Products Liability Act (LPLA). The District Court held that both claims had prescribed — meaning Jenkins did not file within the time required to commence an action — and granted the defendants’ motions for summary judgment. Claims brought under LPLA have a one-year prescriptive period; the period begins from the day the injury occurs or when damage is sustained. La. C.C. art. 3492. Damages are said to be “sustained” when they have revealed themselves with enough certainty to support the existence of a cause of action. In Louisiana, the start of the prescriptive period does not depend on a physician’s diagnosis. Instead, what controls is the date the injury occurred. Jenkins argued that there was a factual dispute over whether he had developed dyskinesia in April, and that it was not certain until his diagnosis in August. But because Jenkins admitted in his pleadings that his symptoms began in April, 2013, the District Court held that the prescriptive period for his claims against the defendants began running in April, 2013.  

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46-1024x575Buying a house and later discovering that the house has foundational defects is a nightmare every homeowner seeks to avoid. Even more unpleasant is to find out that you do not have any recourse against the seller. The nature of such recourse would partially depend on when the defects were discovered, but also whether the seller is a builder, contractor, or manufacturer, because such a status might extend the timeframe of bringing in an action against the seller.

Penny Duplechien acquired a house from sellers Edward George Ackal and his wife in 2005. In 2012, Penny (plaintiff) discovered foundational defects and the next year filed a lawsuit against the sellers. In her cause of action, the plaintiff alleged that the defendants designed and constructed the house. In response, the defendants argued that even if they did construct the house (but they did not), plaintiff was late filing the lawsuit. This argument is based on the exception of peremption in the New Home Warranty Act (NHWA). This exception provides for only a five-year warranty for structural defect cases. La.R.S. 9:3144(A)(3).

In response, the plaintiff asserted that defendants should not even be allowed to use the five-year warranty limitation because Mr. Ackal supposedly lied to the plaintiff about being a licensed contractor. Specifically, the plaintiff said that the defendant purposely held himself out as a manufacturer, and thus it should not be her fault that she did not know better.

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26-Picture-05-22-2019-1024x687The doctrine of peremption can prevent someone from bringing legal action against someone should that action be brought after a certain amount of time. Peremption is a period of time fixed by law for the existence of a right. La.Civ.Code art. 3458. This period is defined by an applicable statute. Arthur Gibson’s case contains two instances of peremption extinguishing a party’s right to bring a claim.   

Arthur Gibson was performing manual labor in the hold of a ship in 2004. While at work, he suffered injuries to his neck and blamed the company who made the materials he was moving. This company was Louisiana Rice Mill (“LRM”). For the next ten years, he attempted to bring two civil actions against LRM for negligence and product liability. Mr. Gibson received workers compensation during this time, pursuant to the Longshore and Harbor Workers Compensation Act. He was represented by Raleigh Newman, for his civil claims, and J. Lee Hoffoss, Jr., who handled his worker’s compensation claim. 

However, after a visit to a neurosurgeon in 2010, Mr. Gibson’s workers’ compensation benefits were discontinued. Mr. Gibson was never informed of the suspension of his payments. He continued to receive regular payments from Mr. Newman, his attorney, during this time to help cover his living expenses. Therefore, Mr. Gibson was unaware that his workers’ compensation benefits had been suspended. He did not discover this until 2014, when his civil actions against LRM ran dry. Mr. Gibson filed a petition for damages against his attorneys. He claimed that they had performed legal malpractice by failing to appeal the suspension of his benefits. The trial court granted the defendant attorney’s exception of peremption, as the claim was brought more than three years after the alleged injury occurred. Mr. Gibson appealed the trial court’s decision.

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fitness-series-2-1467446-1024x768Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

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rack-of-tires-1187131-1024x768Caveat Emptor. This is a common consumer warning, more easily recognized in English as “Buyer Beware.” But what if a defective product wasn’t actually bought, but given away for free? Monroe resident Jason Falcon faced this issue. In April 2012, Falcon called several local tire stores looking for a new tire for his pickup truck. He spoke to the manager of Ink’s Firestone (“Firestone”) of Monroe, Emmett “Ink” Cobb, who said he had a tire meeting Falcon’s specifications in stock. However, when Falcon arrived at Firestone to purchase the tire, Cobb said he did not have a new tire in the correct size available. Instead, Cobb invited Falcon to select a used tire from one of the piles outside the store for free. Falcon declined Cobb’s offer to mount the tire for $8.00 because Falcon, a mechanic at a local car dealership, planned to do it himself.

A few days after he installed the used tire, Falcon and his fiancee were returning from a trip to Baton Rouge when the tread came off the replacement tire. The tread separation caused Falcon to lose control of his truck, ultimately steering the vehicle into the median where it flipped over, landing upright. Falcon wasn’t injured, but his fiancee sustained minor injuries. The truck, damaged significantly, was a total loss

After the accident, Falcon filed a lawsuit against Firestone claiming that the defective tire caused the crash. The trial court rejected Falcon’s claim, reasoning that the tire could not have been defective because Falcon, as a professional mechanic, would have recognized the defective condition when installing the tire on his truck. Falcon appealed this judgment, claiming the trial court made three errors:  first, in deciding that the tire was not defective; second, in holding that Firestone was not negligent; and third, in finding that there was no sale of the tire in question from Firestone to Falcon.

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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.

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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.

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