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ready-to-roll-1315121-1024x768When a person files a lawsuit, they generally have the right to be heard on their complaint.  However, depending on when the lawsuit is brought, the action may be barred due to the lapse of time between the events leading to the lawsuit and the date the lawsuit is filed.  This rule is known as prescription and the problems that can arise for plaintiffs from this rule can be seen in a lawsuit arising out of of Hammond, Louisiana.

The plaintiff, Robert DeVance, brought a lawsuit in April of 2007 alleging that he was falsely arrested and beaten while handcuffed by two Hammond police officers.  Later, on March 5, 2009, Mr. DeVance filed an amended complaint naming three new Hammond police officers as defendants.  In his amended complaint, Mr. DeVance alleged that he was “hogtied” by the three new defendants while being held at the local jail.  This treatment, claims Mr. DeVance, caused him to receive severe injuries due to tightly placed handcuffs on his wrists.  

The new defendants filed an exception of prescription, which may release a defendant from responsibility by a lapse of time between the action and the time a lawsuit may legally be brought.  These periods are usually laid out in the text of the laws themselves.  The rule of prescription has its origins in public policy.  This policy is not to deny relief for those who have been harmed, but to provide the liable individual with some assurance that if a lawsuit is not filed against them in a timely manner they do not have to remain constantly worried that they will be sued at anytime in the future.

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baby powder ovarian cancerFortune 500 company, Johnson & Johnson is in hot water over recent lawsuits contending that the medical device, pharmaceutical and consumer goods manufacturer was aware of an increased risk of ovarian cancer in women who regularly used talcum powder on or near their genital region, but failed to disclose those dangers to its Baby Powder consumers. The company’s Baby Powder product is talcum powder, or talc, based. Amidst the potential and pending lawsuits, which now number over 1,000 and span across the nation, arising against Johnson & Johnson, we broke down five things you should know about the recent and potential claims.

1.    The Potential Link Between Talcum Powder and Ovarian Cancer Was Published 45 Years Ago

In 1971, British researchers initially linked talcum powder to ovarian cancer when they published a study conducted on 13 tissue samples from ovarian tumors. Over 75 percent of the tumors tested contained talc particles. Since the initial finding, multiple published studies validated this association. Some existing research contradicts these findings, but the majority of studies corroborate these findings.

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drugs-ii-1505930Xarelto was produced and marketed by Bayer and Johnson & Johnson as a one-a-day prescription blood-thinner primarily for the treatment of Atrial Fibrillation. Its purpose is to prevent the occurrence of patients receiving strokes. Since Xarelto’s FDA approval in 2011, many patients have been harmed by the administration of this drug. If you or a loved one have taken Xarelto and suffered any adverse side effects, you may have a substantial claim for damages. Here are five things you need to know before moving forward:

  1. There are currently thousands of lawsuits being filed in Louisiana Federal Court that will determine whether Bayer and Johnson & Johnson acted negligently in conducting trials before releasing Xarelto to the market. There are over five thousand cases consolidated under action MDL – 2592. The deadline for filing under this action was May 20, 2016, but patients of Xarelto may still file under this bundled claim if they pay standard filing fee. Early trial cases are to begin as early as August 2016.

2. The most dangerous side effect from taking Xarelto is irregular bleeding. Other side effects include infections associated with knee or hip surgery, bleeding in the brain, swelling of the lower limbs, and difficulty breathing. If you have experienced any of these symptoms while taking Xarelto, you may be able to recover for medical costs, lost wages, pain and suffering, as well as other related claims.

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new-orleans-canal-st-1230688-1024x768There are two sides to every story — and to every lawsuit. In many lawsuits, each side’s story is plausible, and the trial court’s decision ultimately comes down to which story was more plausible. A recent car accident case in New Orleans illustrates this concept and highlights the need for effective lawyering on behalf of a client.

Brown v. Travelers Insurance Company, et al. arose from a car accident between vehicles driven by plaintiff, Aisha Brown, and defendant, Kevin Fogg, at the intersection of Elysian Fields Avenue and Gentilly Boulevard in New Orleans. Brown, individually on behalf of her minor children, and Nachelle Williams, on behalf of her minor child, filed a lawsuit (the minor children were passengers in Brown’s car). The trial court ruled in favor of the plaintiffs and awarded damages to each of them. Fogg appealed this judgment. The only issue on appeal is that of Fogg’s liability: Did the trial court properly rule in favor of the plaintiff?

At trial, the defendant testified that he was traveling on the right lane of Elysian Fields Avenue and intended to proceed straight on the same road through its intersection with Gentilly Boulevard. As the defendant approached the Gentilly Boulevard intersection, he testified, the plaintiff driver attempted to turn right in front of him from the center lane of travel, causing a collision between the two vehicles. In contrast, the plaintiff testified as follows: plaintiff was traveling on Elysian Fields Avenue, and then she turned right onto Gentilly Boulevard. After merging into the left lane of travel, the defendant’s vehicle struck the plaintiff’s rear passenger door.

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for-sale-sign-1445308-1024x683We enter into contracts all the time without even realizing it. However, when you enter a contract for the sale of commercial property, you know it — long documents, lots of formalities, and possibly substantial monetary consequences are involved. You had better be sure you want to sell that property. As a recent case illustrates, even if a party to a contract for the sale of commercial property changes their mind, a court can still enforce the contract and order that party to perform. In other words, a court can order a seller to abide by the terms of the contract and complete the sale of commercial property to the purchaser.

Ratcliff Development, LLC v. Ollie Lee Corporation arose from a petition for specific performance against the Ollie Lee Corporation (“Ollie Lee”), seeking to enforce the terms of a Commercial/Land Agreement to Purchase/Sell. Under the agreement, Ollie Lee agreed to sell property to Ratcliff Development LLC (“Ratcliff”). The property was adjacent to Ratcliff’s business operation on Lee Street in Alexandria, Louisiana.

In 2006, Ollie Lee obtained a tax sale certificate to the Alexandria property. A tax sale certificate is issued when someone buys property that is sold when the original owner failed to pay taxes on it. After a certain amount of time and after certain statutory procedures giving the original owner a chance to reclaim the property have been followed, the holder of the tax sale certificate may obtain title and full ownership of the property. In the first few months of 2012, Ollie Lee began taking those requisite steps toward finalizing its full ownership over the property. See Louisiana Revised Statutes 13:4941, 13:4942 and 13:4944.

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Arguably the most important thing for human health besides air is available and clean water.  When people behave carelessly, others can be harmed.  A mistake with something as valuable as the water supply can cause any number of injuries to those who rely upon it.  Negligence occurs in law where a person or company causes some sort of harm to another by failing to carry out some duty that person or company owes to the public.  Louisiana is a comparative fault state, meaning that when multiple parties are found by a court to be responsible for some injury, the court will divide the total amount to be paid by the parties in proportion to how much each party’s actions make that party at fault for the incident.  None of those held responsible  can escape paying its share just because someone else is more to blame.  The court will compare the actions of each person or company to determine who is more to blame when some harm occurs.

The Louisiana Second Circuit Court of Appeals ruled on a recent and complex case concerning multiple parties involved in such an accident.  In 2006, the Walnut Bayou Water Association was repairing a water supply system that provided water to rural customers. These repairs involved temporarily emptying pipes. Nearby and unknown to Walnut Bayou, employees of the state Fifth Levee District were drawing water from one of these lines to dilute acid used to control weeds.  The combination of this pressure on the water system caused the herbicides to be released directly into the water supply. Neither organization had installed devices that would have prevented such a flow into the water lines.  Five days later, the poisoned water supply became evident to the several hundred customers of Walnut Bayou.  In response to the contaminated water, the water supply was shut off in the area for eight days.  Many of those in homes affected by the contamination and lack of water supply combined to sue both organizations as well as their insurers for the contamination and the failure to supply the usable water they were paying for.

Several years later, it was found that not all of the people on the water supply received the contaminated water. Those who had been proven to have gotten contaminated water were involved in a settlement, leaving only those who had been “upstream” of the released contaminants in the lawsuit.  These affected customers brought claims for property damage caused by the lack of water, additional costs they suffered in obtaining water from other sources during the shortage and afterward, and for emotional trauma caused by the fear of knowing their water might have been poisoned.  Many of these people refused to use the tap water to drink or cook for fear it might still carry traces of the toxic substances.  The trial court found that these people would only be able to receive money for the economic losses they suffered.  In order to determine how much each person would receive if the court found the organizations responsible, the court chose five of those plaintiffs at random to try their cases.  At the end, the court determined that $600 should be awarded to each of the affected people remaining in the lawsuit, and that the Levee district was 75 percent to blame for what had happened, and so would pay most of the costs.

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pills-tablets-2-1524560-850x1024When a person is harmed or comes across what that person sees as an injustice, that  person may feel that the only way out is through the courts.  However, someone seeking help in the courts must be sure that the problem is one that a court can help.  An injunction is a method by which someone can ask a court to order a person or company to either do something or stop doing something.  Usually it is required in Louisiana that the party requesting an injunction be at risk of irreparable harm or harm that cannot be undone by the payment of money.  This does not apply, though, if the action to be stopped is illegal to begin with.  

The First Circuit Court of Appeals recently reaffirmed the requirements for obtaining strong means of relief such as injunctions or class actions.  Ms. Jean Cooper purchased some over-the-counter allergy medicine at a CVS pharmacy in Washington Parish, Louisiana.  Upon discovering that the medication she purchased had already expired, she sued CVS as a company on the basis that the court should prevent the stores from selling expired medication because it could cause health risks. She asked the court for an injunction on behalf of herself, and a class action injunction on behalf of others that may have purchased the expired medications. CVS argued in return that she had not actually been harmed by the expired product and that she was not in risk at harm because she had not used the medication and later declared she would no longer purchase medications in CVS stores.

From these facts, CVS argued that there was no irreparable injury. In response, Ms. Cooper claimed that she did not need to prove injury since federal law prohibited the selling of expired drugs.  She pointed to 21 U.S.C.A 331, the provision of the Food, Drug, and Cosmetic Act that makes it illegal to sell “adulterated” medications.  An adulterated medication is one which has been produced in such a way that it might be harmful.  See 21 U.S.C.A. Section 35l(a)(2)(B).  She claimed that although this law concerned the manufacturing process, a memo that had been written by the FDA in 1995 extended this definition to stores that sell expired medications.  She also presented evidence that another person had found expired medications and baby formula for sale at 63 different CVS locations. This was meant to prove irreparable injury under the idea that all of the CVS stores were selling expired medications.

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hourglass-1543596-1024x768In initiating a lawsuit, timing is critical. In Louisiana, the doctrine of prescription bars a claimant’s legal right of recovery when he or she fails to exercise it within a given period of time. This doctrine functions somewhat similarly to what is known as the “statutes of limitations” in other U.S. states. However, certain statutory provisions “stop-the-clock” so to speak, and suspend the time within which a lawsuit must be brought. This entails precise timing calculations for determining prescriptive period or “deadline” for bringing a claim. Failure to comply with these deadlines means no recovery, as demonstrated by a recent opinion of Louisiana Fifth Circuit Court of Appeal in a lawsuit asserting medical malpractice claims.  

On August 3, 2012, Mrs. ABC was admitted to a hospital in New Orleans (“Hospital”). Upon admission, Nurse Practitioner CP took ABCs’ intake history and performed a physical under the guidance of Dr. PP. Upon initial inspection ABC had no signs of bed sores when she entered the Hospital. However, she quickly developed bedsores during her stay at the hospital. Her skin condition gradually deteriorated, leading to her to expire on October 24, 2012.

On October 16, 2013, ABCs’ children – the plaintiff/appellants – Kathy Maestri and Kurt C. Burgenthal filed a claim with the fund in Louisiana that is set up to initially review medical malpractice cases (“LPCF”) claiming that ABCs’ bed sores and demise were caused by the by both the Hosptial, Dr. PP, and Nurse CP. On October 30, 2013 the LPCF notified Ms. Maestri and Mr. Burgenthal by letter that Nurse CP did not fit the definitions of a healthcare provider under the Louisiana Laws that govern medical malpractice claims (“LAMMA”).  (See Louisiana Medical Malpractice Act Definitions)

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essure birth control lawsuits
1.   What is Essure?

Essure Permanent Birth Control Device is a non-invasive permanent sterile alternative. Essure has been implanted in over half a million women. Essure is “nearly 100 percent” effective in preventing pregnancy. The 10 minute procedure consists of placing two four-centimeter, metal coils made of stainless steel in the inner coil, and a nickel Titanium (nitinol) expanding out coil. These metal coils are inserted in the woman’s fallopian tubes, causing scar tissue to obstruct the tubes and permanently prevent fertilization. It takes about 3 months for the scaring to fully develop.

2.    When did the FDA approve Essure?

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taxotere lawsuits
If you have been diagnosed with cancer or know someone who has been diagnosed with cancer, chances are you have heard of the drug Taxotere. The drug is manufactured  and marketed by the company Sanofi-Aventis was first approved by the FDA in 1996. Sanofi-Aventis is a major pharmaceutical company based out of France that does business all over the world. The drug that they manufacture, Taxotere, is a popular drug used in chemotherapy across the United States. Specifically, it is utilized in the majority of breast cancer treatments, as well as other forms of cancer. Taxotere is administered intravenously and is meant to slow the cancer cell growth in patients. When Taxotere first became available, it was the go to treatment for women with breast cancer. Approximately 75% of breast cancer patients were prescribed Taxotere to fight the growth of the cancer. Chemotherapy is never a fun thing for anyone, but Taxotere made chemotherapy even harder on hundreds of thousands of women.

As you also may be aware of, chemotherapy and Taxotere are accompanied by some pretty detrimental side effects. Some common side effects include your typical nausea, vomiting, fatigue, pain, etc. Also, one of the most common side effects that is associated with chemotherapy is hair loss. Many chemotherapy patients will experience some sort of hair loss while being administered Taxotere. Although this is common in chemotherapy, Taxotere is associated with the permanent loss of hair without the ability to grow back post-chemotherapy. Usually in chemotherapy hair loss is not permanent, but rather temporary during the chemo and radiation treatment. However, many patients using Taxotere experienced permanent hair loss after being administered the drug.

This permanent hair loss is a very serious and unexpected result of the drug Taxotere. The condition of permanent hair loss as a result of Taxotere is referred to “alopecia.” Alopecia can have a severely adverse impact on the morale of the patient, as well as the patient’s families. Although Sanofi is a multinational company and marketed Taxotere in other countries with the warning of potential permanent hair loss, customers in the United States were not given this important warning. As a result, many patients were being administered Taxotere without their knowledge that they could be at risk for permanent loss of hair. In 2015, the FDA issued a warning statement that “cases of permanent alopecia have been reported” after being administered Taxotere. Before this FDA warning, Sanofi’s label in the United States indicated that a patient’s hair will generally grow back after completing the treatment. However, a great number of women in the United States have already felt the negative impact as a result of Taxotere not giving a clear warning of alopecia to consumers.

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