A recent Fifth Circuit per curiam opinion proves to be a lesson for maritime and admiralty attorneys in how to preserve issues on appeal, particularly in Jones Act jury trials.

In 2014, Plaintiff Richard Bosarge applied for employment with Cheramie Marine, L.L.C. and was hired as a relief captain. While on duty, Mr. Bosarge sustained injuries to his back when he was tossed out of his bunk when his vessel hit a large wave. Cheramie responded by arguing that the waves were not violent and alleging that Mr. Bosarge never reported any injuries to his superiors, other than some seasickness.

Mr Bosarge sued his employer under the Jones Act to recover for his back injuries. During his pre-employment physical examination, Mr. Bosarge denied having any prior back pain or injury, although he had sought medical care for back pain in the past. At trial, Defendant’s medical expert was able to compare pre-injury and post-injury MRIs of Mr. Bosarge’s back, and testified that the post-injury MRI showed less injury than the pre-injury MRI. The jury returned a zero verdict and Plaintiff appealed.

More manufacturing defects with replacements airbags, giving rise to products liability claims, have required an automotive replacement parts corporation to issue yet another recall, affecting as many as 230,000 vehicles. The vehicles affected by BMW AG’s most recent recall had replacement airbags manufactured by Petri, a German company owned by Takata Corp., installed after a crash. The inflators used, called the Takata PSDI-4 inflators, can explode in a crash—even one at low speed—and spray those occupying the vehicle with metal shards. These regulators are filled with ammonium nitrate, an explosive chemical with power similar to dynamite. If the chemical degrades over time, the airbags can deploy with so much force that the metal casings are destroyed, sending the metal shards into the unsuspecting vehicle occupants. Around 14,600 of these inflators were shipped to the U.S. between 2002 and 2015 for replacement use. This recall is one of the largest recalls in motor vehicle history, due in part to the 17 deaths these vehicles have caused worldwide and brought to the forefront by products liability lawyers. In the U.S. alone, these airbags have been linked to 11 deaths and 180 injures. Several vehicle drivers and passengers have sued Takata claiming injuries from the metal shrapnel. The Center for Auto Safety’s executive director, Michael Brooks, has said the National Highway Traffic Safety Administration (“NHTSA”) should investigate whether these airbags were used by other vehicle manufacturers. This is needed, as the airbags may have been used by a dozen or more car manufacturers, including Honda, GM, and Volkswagen. BMW already has vehicles with defective airbags under recall, bringing the total to over 1.5 million cars. The car models affected by this most recent recall are some 2001-2002 X5 SUVs, 2000-2002 3 Series, and 2001-2005 5 Series models.

Takata Corp. has also recently entered into an agreement to plead guilty in an investigation by the DOJ concerning the exploding airbags. This settlement comes with a $1 billion payment. Of the $1 billion payment, $25 million will go to the U.S. and $975 million will be paid as restitution to carmakers and those injured by the airbags. Specifically, Takata’s settlement means it will admit to misleading industry regulators, car manufacturers, and ultimately the consumers about the safety of the replacement airbags. This settlement also means Takata will be independently monitored for compliance for the next three years. The recall tied to the airbags has already plagued the corporation and is expected to surpass 100 million. Just two years ago, the corporation signed an agreement to pay a $70 million fine to U.S. regulators because of selective, inaccurate, and incomplete information provided concerning the airbag regulators. The NHTSA has said that this fine could rise to $200 million if the corporation does not finish the recalls within three years. This process will be long and arduous for Takata, as there are approximately 46 million recalled airbag inflators in 29 million vehicles in the U.S. alone. This number could rise over the next three years, affecting as many as 42 million consumer vehicles and 69 million inflators.

Volkswagen is experiencing similar recall problems, issuing a recall affecting hundreds of thousands of Audi models. These recalls stem from two airbag defects and overheating coolant pumps. One of the airbag recalls affects approximately 234,054 Audi Q5 models from 2011 to 2017. This recall stems from a sunroof drainage issue which can corrode the airbag’s inflator canister causing it to rupture and spray the vehicle occupants with metal shards. The second airbag recall affects 5,901 Audi and Volkswagen cars from 2017 and 2018 Audi A4, A6, A7, Volkswagen Golf, e-Golf, and Tiguan models. These airbags may not deploy properly. These models may also experience issues with the seat-belt pretensioners, the device designed to pull a seat belt tight in a crash, not working properly.

Blake R. David of the maritime law firm Broussard & David, LLC obtained a jury verdict of $3,885,911.69 on behalf of a welder who sustained injuries when a vibrating hammer fell and struck him. The verdict, awarding general damages and pre-judgment interest was affirmed by the Louisiana Third Circuit Court of Appeal. On January 23, 2017, the Louisiana Supreme Court denied the application for writ of certiorari on general damages and seaman status – allowing the award to stand.

Plaintiff Ernest L. Guidry, was a welder for Defendant Tanner Services, LLC for approximately two years before he was seriously injured. The defendant was awarded a contract to build a bulkhead on Grand Isle. Tanner had both land division and maritime division crews. Plaintiff had previously worked for Tanner as a shop welder in Eunice, Louisiana, but was reassigned to the Tanner Marine Division before his injury. The project utilized three barges and two tugboats on which a floating mat and other supplies were housed. After the reassignment, Plaintiff spent his working time on the water performing preparatory work for the project, which included welding connectors, welding sheet piles, and cutting holes in the sheet piles. Plaintiff also attended job safety analysis meetings each morning on vessels with the marine division crew. Plaintiff spent approximately 90% of his time working on the water, particularly the floating mat. Plaintiff was severely injured when the vibrating hammer used to drive in piles fell and struck him. The strike caused Plaintiff to fall into the water and caused multiple injuries, including a crushed foot, a concussion, herniated discs, depression, anxiety, the amputation of four fingers, and total and permanent disability.

Defendant contended Plaintiff was not entitled to seaman status under the Jones Act, barring recovery under that statute for the serious and permanent injuries Plaintiff sustained. However, both the trial court and Louisiana Third Circuit Court of Appeal disagreed. Both courts found Plaintiff contributed to the vessel’s function and accomplishment of the vessel’s mission and the plaintiff’s connection to the vessel fleet was substantial in duration and nature because of the amount of time he spent on the floating mat and the work he performed on the mat. These facts entitled Plaintiff to seaman status under the Jones Act, making that statute an avenue of recovery for the severe injuries Plaintiff received. Additionally, the Third Circuit Court of Appeal found that the award of general damages and prejudgment interest on the damages was not an abuse of discretion.

BATON ROUGE  Today, Gov. John Bel Edwards announced his appointments to the Board of Regents.

“Our institutions of higher education continue to face financial challenges that make the work of the Board of Regents more critical than ever as we continue our efforts to stabilize the budget and provide more predictable funding for our colleges and universities,” said Gov. Edwards. “The appointees I have named to the board bring an array of professional and educational expertise from higher education institutions across Louisiana. I am looking forward to working with them to build a brighter future for Louisiana’s students.”

The following appointments will be effective on January 1, 2017:

Jerome Moroux of the law firm Broussard & David, LLC recently obtained a jury verdict of over $1.4 Million on behalf of a railroad worker who sustained significant injuries when an unsecured steel rail fell onto him.

Plaintiff was a truck driver on the railroad.  As the truck driver, plaintiff was responsible for securing each steel rail individually as it was loaded on to the truck from the rail yard; however, on the day of the accident, plaintiff and the foreman loaded several rails without tying them down, intending to secure them all at once. Discovery indicated that the foreman was lax about safety oversight and that his crews routinely did not secure rails in the manner the railroad required.

While plaintiff’s foreman was operating the crane, the boom struck an unsecured rail, causing the rail to fall from the truck. The rail grazed plaintiff’s back, causing plaintiff to fall and strike his head. Plaintiff suffered a fractured ankle, a deep bruise/hematoma in his lower back, and a concussion. Over the course of two years, plaintiff underwent surgical repair of his ankle, as well as extensive treatment for his seroma/wound care in his lower back.  Additionally, plaintiff underwent a two level ACDF and treatment for post-concussive syndrome and anxiety and depression.  Plaintiff’s treating physicians testified that he would be restricted to light duty and more likely than not would need a back surgery sometime in the future.  A vocational rehabilitation counselor testified that plaintiff would not be able to return to work on the railroad.

Three parties have sued a truck driver and his employer for injuries and damages sustained in a crash earlier this year.

On June 24, Plaintiffs Marvin Gaitlin and Tasha Bodie, both individually and on behalf of her minor daughter Mykalia Collins, brought suit in the United States District Court for the Eastern District of Louisiana against Sam Grace, EPES Transportation Systems Inc., and National Fire Insurance Company of Pittsburgh. The suit alleges that Grace negligently operated his vehicle and that EPES negligently entrusted the tractor-trailer to Grace.

On February 25, Gaitlin was stopped in traffic on Manhattan Boulevard, near the intersection of Ute Drive in Jefferson Parish. Bodie and Collins were Gaitlin’s passengers at the time, and their vehicle was directly behind the tractor-trailer driven by Grace and owned by EPES Transportation. According to the suit, Grace suddenly reversed his tractor-trailer and backed into the front of Gaitlin’s vehicle, leaving him no time to avoid the collision. Grace then proceeded to back up his vehicle again, striking Gaitlin’s vehicle a second time. As a result, the parties suffered severe and debilitating mental and physical injuries.

LAFAYETTE, LA – October 27, 2016

A Lafayette Parish jury awarded $30,438,225.00 to Rayne native Ronald Stutes, who was paralyzed when an R+L Carriers 18-wheeler failed to yield at a stop sign causing a crash.

On January 23, 2013, R+L Carriers employee, Gerald Pitre, was operating an eighteen-wheeler loaded with hazardous cargo when he failed to yield at a stop sign and red flashing light at the intersection of Austria Road and U.S. 90 (Cameron Street) near Duson, Louisiana. Ronald Stutes, a master carpenter, was on his way to work at 5:30 a.m. when the 18-wheeler pulled directly into the path of his pick-up truck.

Lafayette, Louisiana – The National Board of Trial Advocacy (NBTA) is pleased to announce that Blake R. David of the law firm, Broussard & David, LLC has successfully achieved Board Certification as a Civil Trial Advocate. The NBTA was formed out of a strong conviction that both the law profession and its clients would benefit from an organization designed specifically to create an objective set of standards illustrating an attorney’s experience and expertise in the practice of trial law.

Blake R. David joins a growing number of trial attorneys that have illustrated their commitment to bettering the legal profession by successfully completing a rigorous application process and providing the consumer of legal services with an objective measure by which to choose qualified and experienced legal counsel.

The elaborate screening of credentials that all NBTA board certified attorneys must successfully complete includes: demonstration of substantial trial experience, submission of judicial and peer references to attest to their competency, attendance of continuing legal education courses, submission of legal writing documents, proof of good standing and passing of rigorous written examination.

A three-judge panel from the FirstCircuit Court of Appeal affirmed the trial court’s ruling finding the Louisiana Department of Transportation and Development at fault for the severe injuries suffered by Evelyn “Joy” Menard when her vehicle struck an out-of-service signal wire hanging under the Essen Lane overpass.

The accident occurred in 2004 but the wire had been hanging under the I-12 bridge for decades, having been installed by the DOTD in 1967 and decommissioned in 1976. The wire had sagged over time and, by the time of the accident, was low enough that it was pulled down by a passing 18-wheeler.  Ms. Menard was travelling behind the 18-wheeler and her car became entangled in the downed wire, pulling her vehicle violently sideways, injuring her lower back and leaving her totally disabled.

At trial, DOTD acknowledged that following the decommission of the signal in 1976, it had no record of inspecting or servicing the wire, the pole, traffic signal, or any other component part of the signal governing the entrance to the intersection where the accident occurred. Ms. Menard’s expert testified that DOTD’s abandonment of the wire without inspection or any effort to maintain it rendered the wire unreasonably dangerous, especially in light of the risk of  the wire sagging over time.

Louisiana’s medical malpractice damage cap, set at $500,000.00 in 1975, could see a significant change in the scope of its application thanks to several lawsuits set to be argued before the Louisiana Supreme Court.

In 1975, the Louisiana Medical Malpractice Act set a $500,000.00 statutory maximum for any amount recoverable as damages (other than medical expenses) in a Louisiana medical malpractice suit.  However, there are instances of negligence which occurs in a medical context that can fall outside of the purview of the Louisiana Medical Malpractice Act.

The Louisiana Supreme Court is currently considering whether a hospital’s “negligent credentialing” of its doctors is subject to the statutory cap of $500,000.00.  In layman’s terms, the Court will decide whether administrative decisions made by hospital personnel are considered malpractice under Louisiana law.