Product Defect

October 22, 2023

When Are Stairs An Unreasonably Unsafe Condition?

stairs_away_gradually_rise-683x1024 Sometimes, commonplace items such as stairs can lead to serious injuries. This case involves the unfortunate situation of a woman who fell down stairs and was injured. Under what circumstances can a building owner be held responsible for injuries from falling down the stairs?

Earline Couvillion fell on stairs while leaving a building owned by Riverside Properties. The stairs were made of cement. The stairs were frayed on the edges and did not have a handrail. Couvillion claimed she herniated discs in her back, strained and cut her knee, and damaged her nerves as a result of her fall down the stairs.

Couvillion filed a lawsuit against Riverside Properties and their insurer, claiming their negligence resulted in her accident. She claimed Riverside Properties had failed to maintain and keep the stairs safe, had not installed handrails, and had otherwise been negligent. Riverside Properties filed a summary judgment motion, which the district court granted. Couvillion appealed.

June 7, 2023

Navigating the Rules of Evidence: How They Can Impact Your Lawsuit and the Jury’s Perception

by Berniard Law Firm

crane_load_crane_crane-1024x683 When you are preparing for a lawsuit, it is crucial to understand what evidence you will be allowed to present in support of your claim. On the flip side, if there is evidence you do not think the other party should be able to present, you can file a motion to try to exclude that evidence. Rulings on evidence can have a major effect on a case because they limit what a jury gets to see or hear.

In product liability lawsuits, it is essential to understand the various parties involved in the manufacture and sale of the at-issue equipment. The following lawsuit out of St. Charles Parish Louisiana shows the importance of understanding the rules of evidence and when and how to produce evidence at trial.

Grove U.S. LLC manufactured, sold, and delivered the at-issue Grove crane to H&E Equipment Services. H&E then leased the crane to Dow Chemical to use in Taft, Louisiana. While in use Grove sent H&E a notice of a Product Improvement Program related to issues involving the crane’s boom extension and structural deficiencies. H&E was authorized to repair because it was an authorized distributor. A manager at H&E contacted the crane’s supervisor at Dow to make the repairs. Dow’s supervisor said they would remove the parts instead of permitting H&E to do so.

May 9, 2023

Absent Vehicle, Absent Negligence: Louisiana Appellate Court Affirms Dismissal of Products Liability Lawsuit

by Berniard Law Firm

texture_airbag_car_vehicle-1024x683 Car manufacturers have a duty to provide safe vehicles for drivers and passengers. A safe car includes an airbag that can help lessen the effects of an auto accident. What happens when your airbag doesn’t expand during a wreck? Can you sue the manufacturer of that airbag? An Ascension Parish lawsuit shows why the absence of a car that has a defective airbag will cause major headaches for your product liability lawsuit.

While traveling through Ascension Parish in the summer of 2012, Joseph M. Dortch (“Dortch”) swerved off the road and into a ditch after trying to avoid another vehicle crossing over the centerline of the highway. Dortch was transported to the hospital by ambulance and sustained several injuries. His car was totaled and eventually sold by his insurance company, State Farm Mutual Automobile.

Following the accident, Dortch sued the other driver and FCA US LLC. Against FCA US LLC, Dortch claimed that the airbags in his vehicle were “unreasonably dangerous” because they failed to deploy during the accident and were, thus, the proximate and contributory cause of his injuries. FCA US LLC filed a motion for summary judgment in response to these claims, arguing three points to undermine Dortch’s allegations.

April 18, 2023

Door Closing Mechanism Causes Trip and Fall, Who is Liable?

by Berniard Law Firm

door_front_door_input-1024x768 Some doors, such as bathroom doors, are heavy and have quick automatic closing mechanisms attached. If a door of that nature hits you in the back on your way and knocks you down, who is liable? The following case out of New Orleans shows how courts deal with door-closing mechanisms and trip-and-fall lawsuits.

In 2011, Gail Encalade visited her insurance agent’s office in an office building on General DeGaulle. Before leaving, she pushed the restroom door open without issue and entered the bathroom. When exiting, she pulled the restroom door, and the door began to close behind her. As it was closing, she alleged it hit her on the back, causing her to fall forward, sustaining injuries to her shoulder and face.

In April of 2012, Encalade sued for damages, America First Insurance Company (AFIC) and other defendants were negligent in failing to maintain safe public areas, that being the restroom specifically. She argued the AFIC should have known of the problems with the doorways and the door equipment. AFIC answered the lawsuit by filing a motion for summary judgment.

April 7, 2023

Toe Implant Patient Wins Summary Judgment Over Manufacturers’ Defective Product

by Berniard Law Firm

feet_toe_human_body-1024x683 No one wants to experience pain and suffering after spending money and time getting surgery. Nonetheless, some people fall victim to these complications. A person can be prone to injury when a defective product is inserted into their body. This was the case with Kale Flagg.

Kale Flagg underwent foot surgery to install toe implants made by Stryker Corporation (“Stryker”) and Memometal Incorporated (“Memometal”) (collectively, the “Manufacturers”). Unfortunately, several months after the surgery, Flagg’s implants broke and caused him extreme pain. This resulted in him undergoing multiple surgeries to try to fix the problem.

Flagg filed a lawsuit against the Manufacturers alleging implants were defective, which caused his ongoing suffering and deformity. The Manufacturers responded by seeking a motion to dismiss under the Federal Rule of Civil Procedure 12(b)(6), and the district court granted the motion. Flagg appealed.

March 29, 2023

Liability in Boating Accidents with Steering System Failure

by Berniard Law Firm

boat_rowing_boat_blue-1024x746 Hydraulic 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.

March 21, 2023

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

by Berniard Law Firm

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.

February 12, 2023

Adequate Medical Evidence Required To Establish Causation Of Alleged Injuries

by Berniard Law Firm

ladder_sky_pig_iron-1024x684 Imagine 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.

January 23, 2023

When is It Too Late to File a Products Liability Claim in Louisiana?

by Berniard Law Firm

louisiana brain injury lawyer It 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.

December 8, 2019

Lafayette Homebuyer Lawsuit Unsuccessful in Holding a Home Seller Liable for Defects

by Berniard Law Firm

46-1024x575 Buying 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.