Class Action

Levee Authority Files Suit, Alleges Oil and Gas Companies Contribute to Louisiana’s Diminishing Wetlands

October 6, 2014 | by Broussard, David & Moroux

On July 24, 2013, the Southeast Louisiana Flood Protection Authority-East (Authority) filed suit against 97 oil, gas, and pipeline companies for their alleged contribution to the continuing diminution of Louisiana’s wetlands. This historic lawsuit demands that these companies immediately restore damage to the wetlands, arguing that the Authority’s flood protection system formed by the wetlands “guards millions of people and billions of dollars’ worth of property in south Louisiana from destructive floodwaters.” A 1996 study concluded that the energy industry was both directly and indirectly responsible for 36 percent of wetland loss in Southeastern Louisiana, and more recent studies have apportioned even higher percentages of the loss to the oil and gas industry. This, together with the Authority’s concern that they wouldn’t have adequate resources to operate and maintain the levees when they were handed over to local levee district by the Army Corps of Engineers, prompted the Authority to file suit.

Since its filing, this lawsuit has polarized Louisianans. Hours after suit was initially filed, Governor Bobby Jindal issued a response claiming that the Authority didn’t have the right to file suit without his approval. Governor Jindal also attacked the lawsuit as a “hijacking” of the issue by trial lawyers “who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana’s coast.” On the other side of the debate, Democratic lawmakers seemed to back the lawsuit, finding Governor Jindal’s concerns unfounded and adverse to Louisiana’s legitimate interest in being a steward of its local environment.

In response to this lawsuit, the Louisiana legislature passed Act 544 which expressly strips State and local government entities of any “right or cause of action arising from any activity subject to permitting” under certain Louisiana and Federal law. That is, Act 544 would preclude the Authority’s suit against the oil companies’ activities, at least under the auspices of a local government entity. In written motions, the Authority seeks to have Act 544 declared unconstitutional. This lawsuit has since been removed to Federal Court in New Orleans, where the next ruling will determine whether Act 544 applies to the levee Authority.

From Contributory Negligence to Comparative Fault: A Remedy for Negligent Plaintiffs in Louisiana

September 26, 2014 | by Broussard, David & Moroux

Picture this unlikely scenario: An intoxicated motorist is driving his vehicle at speeds well in excess of the speed limit (let’s say, he’s traveling at 100 mph in a 35 mph zone). As the unsafe motorist approaches a downtown intersection, a jay-walking pedestrian begins to cross the street when it is clearly not her turn (the brilliant-orange “don’t walk” hand is flashing and unmistakable). She has her face buried in the daily newspaper and is wearing headphones, unaware of what’s happening around her. What happens next, as you might have expected, is that the speeding, drunken motorist collides with the inattentive pedestrian, causing her significant injuries and tens of thousands of dollars in hospital bills.

This hypothetical accident was intended to illustrate the legal problem of the “foolhardy” plaintiff–the individual who suffers an injury at the hands of another, though her inattentive, negligent behavior also has contributed to the damage. In layman’s terms, both the motorist and the pedestrian are at fault here. The driver should understand that operating a vehicle at high rates of speed while intoxicated is unsafe and endangers the public. Similarly, the pedestrian should know that she must obey traffic signals and should pay attention to her surroundings as she crosses the street. Thus, both the motorist and the pedestrian have a “duty” to act as a reasonably responsible driver and pedestrian respectively. Under this scenario, however, where both actors to this dramatic collision have breached their duties to act reasonably, causing this accident, who is responsible? Is the pedestrian permitted to recover damages (money) despite having negligently contributed to this accident and her resulting injuries?

Prior to 1980, Louisiana followed the traditional common-law approach to solving the issue of the “foolhardy plaintiff”–a plaintiff whose negligence contributed to his injury. This common-law approach was known as contributory negligence and operated as a total bar to recovery in a negligence action. While it sounds unduly restrictive of a plaintiffs’ ability to bring and maintain actions for injuries they suffered, this comparative negligence regime required more than just showing that the plaintiff contributed in some way to the injury–instead, the plaintiff had to be legally negligent. They must have had a standard of care (a duty), which, when breached, caused and contributed to their injury and was within the scope of foreseeable risk.

BP’s “Gross Negligence” Under the Clean Water Act: A Deeper Look

September 19, 2014 | by Broussard, David & Moroux

Almost two weeks have passed since Judge Carl Barbier handed down his blistering opinion apportioning a majority of the fault to BP for the 2010 Gulf oil spill. As a follow-up to last week’s article, which detailed Judge Barbier’s ruling, we aim to dig deeper: Judge Barbier found that BP’s “gross” negligence opens them up to enhanced civil penalties under the Clean Water Act (CWA). But what does this mean for BP? Was this the right result?

The Ruling

The thrust of Judge Barbier’s opinion was to apportion fault, or responsibility, for the harrowing 87-day oil spill which followed Deepwater Horizon’s explosion. As we noted in last week’s article, Judge Barbier found BP 67 percent at fault for the spill and reserved only 30 percent and 3 percent for Transocean and Halliburton, respectively. Importantly, and the subject of this week’s in-depth look at his ruling, Judge Barbier found that BP’s “gross negligence” and “willful misconduct” opens them up to enhanced civil penalties under the Clean Water Act. Under the CWA, where a “person” causes a hazardous oil spill in navigable waters of the United States, and where this spill is the “result of gross negligence or willful misconduct… the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” 33 U.S.C. §1321(b)(7)(D). As Judge Barbier notes, this enhanced penalty provision does not require any “specific level of corporate management,” but instead opens up enhanced penalties to entities who violate this provision of the Clean Water Act whether it’s the result of systemic, gross negligence or not.

Federal Judge Finds BP “Grossly Negligent,” Allocates Majority of Fault for 2010 Oil Spill to BP

September 12, 2014 | by Broussard, David & Moroux

In a recent ruling handed down in Federal District Court in New Orleans, Federal District Judge Carl Barbier assigned the majority of the responsibility to BP for the 2010 explosion of Deepwater Horizon. Judge Barbier found the discharge of oil to be the result of BP’s “gross negligence” and “willful misconduct” under the Clean Water Act, which subjects BP to enhanced civil penalties. The ruling found BP responsible for 67 percent of the blowout, explosion, and subsequent oil spill, while the remaining percentage was divided among Transocean and Halliburton at 30 percent and 3 percent, respectively.

“BP’s conduct was reckless. Transocean’s conduct was negligent. Halliburton’s conduct was negligent,” wrote District Judge Barbier in his 153-page ruling.

While it has been estimated that BP could face fines of up to $18 billion, the Judge’s ruling noted that BP cannot be held liable for additional punitive damages under general maritime law. Usually, general maritime law which permits the imposition of punitive damages for reckless, willful, and wanton conduct. However, due to a unique jurisdictional rule in Louisiana, Texas, and Mississippi, the imposition of punitive damages under general maritime law has been severely limited, though not entirely abandoned. Indeed, punitive damages are still available for reckless, wanton conduct in the Fifth Circuit, though, the bar is much higher. In addition to proving the defendant’s “reckless, willful, and wanton conduct,” an award of punitive damages must also demonstrate systemic recklessness. “The maritime rule in the Fifth Circuit is generally insufficient to visit punitive damages upon the employer. Rather, the conduct must emanate from corporate policy or that a corporate official with policy-making authority participated in, approved of, or subsequently ratified the egregious conduct,” the ruling states. In the absence of such a corporate policy, Judge Barbier found that BP cannot be held liable for punitive damages under general maritime law. BP plans to appeal the decision.

Lafayette Jury Awards $9 Billion in Punitive Damages

April 11, 2014 | by Broussard, David & Moroux

A jury in Lafayette has awarded $1.5 million in compensatory damages and $9 billion in punitive damages to a former user of the Actos diabetes medication after the jury determined that the drug was linked to the plaintiff’s bladder cancer. Both defendants, Takeda Pharmaceuticals Co. and Eli Lilly & Co., insists that their medication is safe and they plan to appeal the jury’s verdict. The plaintiff began taking Actos in 2006 to treat his Type 2 diabetes until 2011, when the U.S. Food and Drug Administration placed a warning on the medication’s labels stating that use of the drug for more than a year increases the risk of bladder cancer. The trial also featured Takeda officials destroying pertinent documents about the development and marketing of Actos, which prompted sanctions from U.S. District Judge Rebecca Doherty.

Henderson Traffic Ticket Class Action

September 7, 2013 | by Broussard, David & Moroux

A class action suit seeking over $2 million in damages alleges that Henderson police officers were paid to ticket motorists along I-10 under an illegal ticket quote system. The suit alleges that these police officers were paid $15 for every ticket issued to drivers on I-10 and that some of these officers were issuing tickets on the Atchafalaya Basin Bridge, which is outside of their jurisdiction. Criminal charges of public payroll fraud, filing false public records, and malfeasance were filed against the town’s police chief and his assistant. They both pleaded not guilty to the charges.

$5.1 Million Verdict Awarded to Cow Island Residents

August 23, 2013 | by Broussard, David & Moroux

A Vermillion Parish jury awarded $5.1 million to Cow Island residents to help pay for the cleanup of soil and groundwater heavily contaminated with arsenic. The case arose after a Cow Island resident was diagnosed with cancer, making him the second in his rectory to be diagnosed with the deadly disease. A quick test of the water wells in the area found a level of arsenic that grossly exceeded the maximum levels allowed in drinking water. Richard Broussard, an attorney from Broussard, David & Moroux and one of the lead attorneys in this case, stated that the contamination was a result of cattle dipping vats being poured on the ground for decades.

Toyota Motors Agrees to $1.1 billion settlement

January 15, 2013 | by Broussard, David & Moroux

Toyota will pay $1.1 billion to settle a class-action lawsuit brought by millions of car owners. In the suit, car owners alleged they suffered economic loss from negative publicity associated with reports of sudden unintended acceleration in their Toyota and Lexus vehicles.

This lawsuit is one of the first class action suits of its kind because the class did not pursue personal injury or products liability claims. This settlement agreement will affect 16 million owners of Toyota and Lexus cars. The news of Toyota’s willingness to pay this large settlement on economic claims alone may also be a good predictor of Toyota’s intent to settle any personal injury or products liability claims in the future.

Before joining a class action lawsuit, it is important to consider several factors relating to your participation in the suit. A primary benefit of class action litigation is that it can reduce litigation expenses for the individual. In a class action lawsuit, several people share the costs of litigation. Bringing a class action lawsuit can also be a more efficient use of court resources and can ease proof of a defendant’s liability.

Federal court approves $37.5 million FEMA trailer settlement

October 16, 2012 | by Broussard, David & Moroux

A federal judge gave final approval to a $37.5 million settlement between the manufacturers of FEMA trailers and storm victims who used the trailers following Hurricanes Katrina and Rita. This class of 55,000 plaintiffs claimed they were exposed to formaldehyde, a known carcinogen, while living in the trailers.

In a toxic tort lawsuit, an individual seeks compensation for injuries, health problems or death resulting from dangerous exposure to toxins or hazardous materials. An individual can bring a toxic tort claim as a single plaintiff or as multiple plaintiffs through a class action lawsuit.

Drug Company To Pay $3 Billion in Fraud Settlement

July 26, 2012 | by Broussard, David & Moroux

GlaxoSmithKline will pay $3 billion dollars, the biggest single settlement of health fraud in U.S. history, for the unlawful marketing of two drugs and failing to provide necessary information to the Food and Drug Administration.

The drug company admitted to falsely representing that certain drugs, such as Paxil and Wellbutrin, were approved to treat issues beyond the drugs’ FDA approval. A United States attorney called the settlement “unprecedented in both size and scope.”

Broussard, David & Moroux represents clients who are injured by dangerous drugs. Our attorneys have experience taking on large corporations and fighting for the rights of injured consumers. An experienced lawyer can analyze the facts and circumstances surrounding your case and determine whether you have a successful claim against a pharmaceutical company. Products liability law provides theories for recovery in pharmaceutical litigation. In a typical lawsuit against a pharmaceutical company, an injured group of consumers intends to hold a negligent manufacturer legally responsible for their common injuries caused by their dangerous drug.