Many of Louisiana’s woes are from recent disasters such as Hurricane Katrina and the Gulf oil spill. However, for Plaintiffs in David v. Velsicol Chemical Corporation, their woes began long before then. Plaintiffs were residents and property owners in the Cow Island area of Vermilion Parish when they discovered that their lands had high levels of arsenic in the ground water, in some instances eighty times the Environmental Protection Agency’s acceptable levels. Plaintiffs claim that Defendants’ product, Cooper’s Cattle Dip, contaminated their land and drinking water with arsenic and other hazardous chemicals causing the high rate of cancer in the area.
Plaintiffs’ story begins before 1970 when Cooper’s Cattle Dip was used in dripping vats located on, or adjacent to, all of the Plaintiffs’ properties. The dip solution contained high concentrations of arsenic and other poisonous chemicals. After being dipped in the solution, the cattle would stand as the dip slowly dripped its poison into the Plaintiffs’ lands. Although this dip eradicated the ticks that were killing cattle across the United States, it was deadly to humans and animals. This poisonous dip was simply allowed to run off into the ground and, as Plaintiffs alleged, contaminate the ground and eventually the water.
Despite this, the trial court ruled that twenty-one of these Plaintiffs had no cause of action and no standing to proceed in the case. Just recently, the Third Circuit Louisiana Court of Appeals reversed the trial court’s ruling allowing the twenty-one Plaintiffs a chance to prove their case under pre-Louisiana Product Liability Act (LPLA) strict liability law. As a side note, this case is governed by pre-LPLA strict liability law because the contamination occurred before enactment of the LPLA. For further discussion on the LPLA, please see an earlier entry on the blog.
In its ruling, the Third Circuit Court of Appeals discussed the fundamentals of Lousiana product liability law and strict liability law. Essentially Louisiana product liability law provides that:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.
Under this rule, the plaintiff must prove
(1) harm resulted from the condition of the product;
(2) the condition of the product made the product unreasonably dangerous for normal use; and
(3) that the condition existed at the time that the product left the manufacturer’s control.
However, strict product liability is different. As the Third Circuit explains, under the strict product liability:
Strict liability results form the conduct or defect of a person or thing which creates and ‘unreasonable risk’ of harm to others. Strict liability for injury suffered as the result of an unreasonably dangerous product attaches to a claim by any person injured by such product… Any person injured by the contaminated water or soil has a right of recovery and has standing to enforce that right.
In matters like this, the product itself is on trial and the plaintiff must provide proof that the product was unreasonably dangerous for normal use. The Court explains that the test to determine whether a product is dangerous per se is to weigh the danger-in-fact of the product versus the utility of the product. In addition, as part of this test, failure to warn or include warnings about the danger weighs heavily.
To show danger-in-fact, Plaintiffs in this case presented evidence demonstrating that there were no instructions from the manufacturer as to how to clean up the areas where the dip was allowed to runoff into the ground. Further, whatever warnings and instructions were provided would actually further contaminate the land. Defendant did not dispute any of this nor that the product was a toxic, hazardous substance designed to kill.
The Third Circuit ultimately decided that the Plaintiffs presented sufficient evidence at the hearings to state a right of action for damages based on the product being unreasonably dangerous and manufacturer’s failure to warn. The Court ruled to reinstate all Plaintiffs dismissed and to allow them to proceed with their case against Defendants.
In cases like this where the origin of the harm was a long time ago and the effect of the harm is happening now, proof is hard to get. If the Third Circuit did not reverse the ruling, those twenty-one. Plaintiffs would be out of luck. This kind of story can happen to anyone and if it has happened to you, it is essential that you get legal help.
If you are a landowner whose health and home have been damaged by what a large company or corporation, Berniard Law Firm can help. Litigation is often the great equalizer between the individual and the large corporation. Attorneys at The Berniard Law Firm have taken on several large organizations in successful efforts to recover for their clients’ harms. If you feel you have a similar story, contact The Berniard Law Firm today.