Environmental Liability/Toxic Torts

Products Liability in Louisiana under the LPLA

October 31, 2014 | by Broussard, David & Moroux

As Halloween approaches, I’m reminded of a story I was told growing up–a story that has spread like wildfire and survived the ages. It’s the story of a young child, happily trick-or-treating in his neighborhood and too fixated on his chocolate, sugary boon to care about any potential for harm. As the young child explores his neighborhood, bouncing from home-to-home, he approaches one residence that has opted to hand over candied apples to its trick-or-treaters instead of candy. The young child approaches the home, receives his candied apple in exchange for his promise not to “trick” and then scampers off to his next target home. Later that night, inspecting his bounty, the young child discovers a razor blade in his candied apple–a razor blade that, had he bitten down on it, would’ve caused him serious injury. Those of you reading this are tempted to relegate this story to “urban legend” status, a story designed to scare children into safer Halloween habits. However, I instead encourage you to think about this scenario as a basic, yet well-recognized example, of Products Liability law.

The area of tort law known as Products Liability deals with rights, duties, obligations, and standards associated with the distribution and safety of products. That is, manufacturers are liable for the personal injury or other damage caused by their defective product. Intuitive as it may sound, this was not always the case. Before Louisiana extended this right to injured plaintiffs–the right to seek remuneration for personal injuries caused by defective products–courts often denied injured plaintiffs’ claims due to the legal doctrine of “privity of contract.” Under this doctrine, courts conceived products liability to be a contractual matter, and recovery against the seller was rooted in contractual remedies. Accordingly, this “privity” required that the defendant-manufacturer be a party to the contract of sale in order to provide remedies outside of the law of contracts. Since manufacturers rarely sell their products directly to customers, but instead sell them to retailers who distribute them to the public, manufacturers were often shielded from liability.

Gradually, the conception that products liability was restricted to the realm of contracts started to erode. For example, the Restatement of Torts adopted a provision “providing limited strict liability of the manufacturer of a product for the personal injury damages caused by a defect in the product.” This approach to products liability was later adopted by the Louisiana Supreme Court in Weber v. Fidelity & Cas. Ins. Co. of NY, 250 So. 2d 754 (La. 1971), which provided for manufacturers’ strict liability in tort for their defective/injurious products.

Broussard, David & Moroux Holds Grand Opening for New Location in Downtown Lafayette

October 15, 2014 | by Broussard, David & Moroux

LAFAYETTE – Broussard, David & Moroux Law Firm held a grand opening ceremony on Wednesday, October 15th, in honor of their recent move to a new location. Their new offices are located in the heart of downtown Lafayette on the corner of Jefferson Street and Vermilion Street in the historic Moss Building (557 Jefferson Street).

A crowd gathered to help Fr. Hampton Davis bless the new building. A ribbon cutting ceremony and reception followed in conjunction with the Chamber of Commerce Business After Hours event. Guests were able to tour the newly renovated building and learn about the history of its presence in downtown Lafayette.

For the last 200 years, the site of the historic “Moss Building” was the epicenter of local activity in a growing Lafayette. Today, the Moss Building plays an important role, once again, as downtown Lafayette enjoys a renewed vitality. Blake David, partner at the law firm, says that “Broussard, David & Moroux was eager to invest in an opportunity to restore one of Lafayette’s landmarks and is committed to enhancing the downtown community so that it is a great place to live, work and play.”

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.

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.

$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.

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.