Gross Negligence? BP Asks Louisiana Court To Reconsider Ruling

File this one under ho-hum appeals with multibillion dollar ramifications.. BP has asked the U.S. District Court for the Eastern District of Louisiana for reconsideration of the trial judge’s ruling that it was “grossly negligent” in its role in the the 2010 oil release in the Gulf of Mexico.  In September, the trial judge found that BP’s “profit driven decisions” prior to release amounted to gross negligence.  With that finding, BP’s potential liability has been estimated at about $18 billion.
In the ruling, Judge Carl Barbier found BP’s actions showed ”an extreme deviation from the standard of care and a conscious disregard of known risks.”  The main reason behind this finding was that several “profit driven” decisions by BP purportedly prompted the release of oil.  The decisions at issue included drilling in dangerous conditions for the final 100 feet of depth and not running an additional test of the cement used to seal the well. In its reconsideration motion, BP argued that some of the so-called profit driven decisions that formed the basis for the gross negligence finding were based on theories given by an expert whose testimony had been excluded by the court.  During the trial, the judge excluded one expert’s theory as to the cause because BP had no prior opportunity to counter that evidence. Nevertheless,  when the judge outlined the basis for his gross negligence ruling, he included factors that would have been relevant only if excluded theory had been admitted into evidence.

It’s difficult to say, at this point, whether this is a legitimate gripe or a potential $18 billion technicality.  Either way, it’s got big money ramifications.

Evidence of Drug Use May Be Relevant in Product Liability Litigation

Evidence of a plaintiff’s use of drug and alcohol is often admissible in a personal injury action.  While prejudicial, the usage of such substances is highly relevant when it contributed to causing the injury of which the plaintiff complains.  Simple enough.  But what happens when there is evidence of drug use in product liability litigation (by a plaintiff, not a manufacturer)?  Certainly, a product remains defectively designed or manufactured regardless of the user’s propensity to indulge in body altering substances, right?  Maybe not, says the Western District of Louisiana.

In Graham v. Hamilton, No. 3:11-609, 2012 WL 1898667 (W.D. La. May 23, 2012), the plaintiff’s alleged that the door latch design in a Chevrolet Camaro was unreasonably dangerous because it allowed an unlocked door to open during a motor vehicle accident.  As plaintiffs, the widower of the driver and the guardian of a child passenger, argued that had the door latch not been defectively designed, the driver would not have been ejected, would have survived the accident, and rescued her child before he died when the vehicle caught fire.

But there is one problem – the driver was under the influence of marijuana at the time of the accident.

The plaintiffs moved in limine to exclude the evidence of drug use as unfairly prejudicial.  They argued that the mere mention of marijuana would

[C]reate an over-arching presence in jury deliberations which would cause a miscarriage of justice related to the issues of whether the Camaro was defective . . . .

The Court agreed that the evidence was highly prejudicial; however, the potential prejudice to the plaintiffs did not outweigh the probative value of that evidence.  According to the Court, the driver’s use of marijuana made it more likely that she caused her injuries and less likely that she could quickly remove her child from the vehicle.  As such, this evidence should be left in the jury’s hands.

We here at Abnormal Use don’t intend to engage in a socio-political debate regarding the use of marijuana.  But under the facts of this case, we must applaud the Court’s decision.  While we have no idea whether the design of the door locks was defective, a plaintiff’s own comparative fault must be considered.  The question is not whether product can be defectively designed when the user is high.  Rather, the question is whether a plaintiff should be able to recover when, despite the alleged defect, he had a hand in causing his injuries?

Secondhand Smoke Claims Fall Flat

Last year, a federal class action lawsuit was filed against Caesars Entertainment Corporation alleging that the casino corporation failed to safeguard its employees from secondhand smoke. The named plaintiff in the case, Denise Bevrotte, alleged that her son died of cancer from inhaling secondhand smoke at work. Bevrotte’s son was employed as a dealer at Caesars’ Harrah’s New Orleans Hotel and Casino for over 15 years. Bevrotte brought the suit on behalf of all non-smoking employees of Harrah’s New Orleans Casino. The case filed in the U.S. District Court for the Eastern District of Louisiana is captioned Bevrotte v. Caesars Entertainment Corp. d/b/a Harrah’s New Orleans Hotel and Casino, No. 2:11-cv-00543-SSV (E.D.La. 2011). The class claims were dismissed in October for failure to allege a common issue. Last week, Bevrotte’s remaining wrongful death claim was dismissed for failure to allege facts sufficient to demonstrate that she was her son’s statutory beneficiary. While these dismissals were a clear win for Caesars, they offer little fodder for legal bloggers on the validity of secondhand smoke claims. Undeterred, we now offer our thoughts.

As frequent casino visitors, we here at Abnormal Use empathize with the concern over secondhand smoke. When we discard our money, we could do without that pleasant aroma of Virginia Slims. On the other hand, we understand why casinos allow smoking. Casinos are big business. If people want to smoke while pouring their money into slot machines, casinos are glad to accommodate. For those who don’t enjoy smoke, casinos offer many other vices.

Even though we ourselves disdain smoke, we would never sue a casino because of it. First, we have never knowingly been injured as a result of casino smoke. Sure, any secondhand smoke has undoubtedly blackened our lungs beyond repair, but so too has the smoke from every other bar and restaurant into which we have ventured over the course of our wearisome lives. How do we single out the casino?

We recognize that Bevrotte’s son served as a Harrah’s employee for over 15 years. As a result, his smoke exposure at the casino is far more significant than that on our casual weekend vacation. Even if Harrah’s is a more identifiable tortfeasor for Bevrotte, we share one thing in common. We each made a choice. While our reasons for entering the casino may have been different, nobody forced us to go. By entering the casino, we know we will be exposed to secondhand smoke, yet we continue to go. While we continue to learn about the impact of smoke inhalation, the dangers of secondhand smoke are not a new discovery. We assume the risk and shouldn’t sue others for our own perilous decisions.

Abbott Labs Wins Motion to Dismiss

Where have we gone so wrong, America? Our pioneer forefathers are rolling in their graves. Whereas they endured disease, famine, and early death, we spit in their faces, enjoying our iPhones, antibiotics, and frivolous lawsuits. Some measure of order was restored in O’Neil v. Abbott Laboratories, Inc., No. 11-11, 2011 WL 902427 (E.D. La. March 11, 2011), when the court dismissed a complaint alleging infant injury from beetle parts allegedly present in Similac, which you may remember from here. Put simply, there may have been some ground up warehouse beetle in 0.2% in a particular lot of infant formula. No big deal. Even the FDA says that there is no immediate health risk just a chance of GI irritation.

Plaintiffs presented a putative class action based on the fact that their child suffered diarrhea and diaper rash due to consumption of Similac. Do you know what a pioneer would call a day in which he had to face only diarrhea and diaper rash? An outstanding day. If I told my mother that I found a bug in my food, do you know what she would call it? Protein. Oh, America, we have become a nation of wimps.

The court saw this putative class action for what it was, and used Iqbal to dismiss the action. Noting that infants often suffer diarrhea and diaper rash for “non-entomological reasons,” the court subtly chastised the plaintiffs for bringing a negligence-styled products liability action, when negligence is not available in the Louisiana Products Liability Act against manufacturers. Nevertheless, the court afforded the plaintiffs a chance to amend, and even spelled out the four elements that a plaintiff’s complaint must satisfy on its face.

Sure, it may be discomforting to imagine a baby consuming a little warehouse beetle. But babies lick the floor and eat other disgusting things. I’m sure that these concerned parents who think that their kid may have eaten a little bug would not self-report if they found their child chewing on a shoelace that may have touched a public restroom floor or other germ-infested surface. Unfortunately, this case will be refiled in a style that survives the motion to dismiss, and you and I will get the class action settlement notice by mail or email a year from now. Millions of dollars wasted to litigate some GI problems. Oh, America, what have we become?

Jury Orders Drugmaker to Pay $257 Million to State for Improper Marketing Practices

A Louisiana jury in mid-October issued a $257.7 million verdict against Janssen Pharmaceutica, Inc. and its parent company, Johnson & Johnson, finding that the drugmaker misled Louisiana doctors about possible side effects of its antipsychotic drug Risperdal. See Caldwell ex rel. State of Louisiana v. Janssen Pharmaceutica, Inc., 04-C-3967, 27th Judicial Court, St. Landy Parish, Louisiana. Businessweek reports that the basis of the suit, which was initiated by the state’s attorney general, was that J&J officials wrongfully touted its drug as superior to competing antipsychotic drugs and attempted to minimize its links to diabetes.

The state’s case was based on claims that J&J and Janssen sent 7,604 “Dear Doctor” letters to Louisiana medical providers and made a total of 27,542 sales calls, in which company representatives claimed that Risperdal was safer than competing antipsychotic drugs such as Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel. (See our previous post here, where we took a look at the litigation involving claims that AstraZeneca failed to warn users of the diabetes risks associated with its antipsychotic drug.) The state’s local NBC news affiliate reported that J&J’s statements were in violation of the state’s Medical Assistance Programs Integrity Law (MAPIL), which requires that the attorney general protect medical assistance programs from companies that engage in fraud, misrepresentation, or other improper practices to obtain payments for which they are not entitled.

According to an article at Law360, which explores a bit of the history of lawsuits against J&J involving improper marketing practices, the jury in the present case issued penalties of $7,250 for each of J&J’s 35,542 alleged violations of the MAPIL, which amounted to one of the largest verdicts in the history of the state. Patrick Morrow of the Opelousas law firm of Morrow, Morrow, Ryan and Bassett, which actually tried the case on behalf of the state, said of the verdict: “You can’t come into Louisiana and disseminate false and misleading information.”

Although J&J has denied any wrongdoing in connection with these claims, this verdict certainly will have a lasting impact on the way drugmakers market their products to doctors and medical professionals.

Hot Coffee Case Dismissed in Louisiana

Today, we examine the question whether anyone in the United States is unaware that coffee is served hot enough to burn skin. While any reasonable person is aware that coffee is, in fact, hot, Gerald Colbert thought it was 1992 again and sued Sonic Restaurants because it “failed to warn him and other customers of hot coffee, failed to keep its coffee at a proper temperature and failed to make sure its coffee cups were in a safe condition.” Colbert alleged that he received second degree burns through “his blue jeans in his groin area, stomach/abdomen area and thigh.” Thankfully, Judge Stagg, in granting summary judgment against Colbert in Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010) did not have to discuss any damages discovery. While we occasionally poke fun at litigiousness, the following are some things that struck me about this case:

1. This case was filed and state court and removed. Therefore, I assume that Colbert was forced to concede that he suffered over $75000 damage to his “groin area.” I also assume that the parties thought that use of the phrase “groin area” was appropriate. Use of the phrase “groin area” only makes this suit seem more comical. Can’t we all agree that a groin is a groin without appending the word “area?” We get it.

2. Only in law do we have to assess whether someone is a “sophisticated user” of hot coffee:

The summary judgment evidence in this case clearly classifies Colbert as a sophisticated user of Sonic’s coffee. Colbert testified during his deposition that he is a regular coffee consumer and that he has purchased coffee from Sonic numerous times prior to the incident. . . . In fact, Colbert admitted during his deposition that he has previously spilled hot coffee on himself.

Think about what went in to getting this admission. Case was filed, answered, written discovery served, discovery reviewed, deposition prep on both sides, and Colbert drove himself to the attorney’s office, probably with coffee in hand, and knew that he had no cogent, helpful answer for when he would be asked the question whether he had spilled coffee on himself.

3. In response to the summary judgment motion, Colbert came forward with his own affidavit, which apparently struck his lawyer as the best (or cheapest) way to respond. Colbert then turns into part scientist, part logician to come up with this (paraphrased) Aristotelian formulation of a syllogism: Premise 1. Water boils and turns to steam at 212 degrees Fahrenheit. Premise 2. I observed steam coming from my coffee. Conclusion – My coffee was 212 degrees Fahrenheit. Uh, no. I’ve never had a cup of coffee at a roiling boil. You haven’t either.

It’s not 1992. I think everyone is aware that coffee is hot everywhere and not just at McDonald’s. Colbert imposed systemic costs on the courts, as well as all of us who enjoy the wonderful fare offered by Sonic. It’s hard to know whether this is an economically efficient result, since we can’t really know if this case will deter any other sophisticated users from coffee litigation, but in the short run, lots of money was spent defending a meritless claim. Congratulations, Sonic, in choosing justice over economics.

Partying at Mardi Gras

Obviously, we vet all posts here to an abnormal extent, seeking to bring you, our readers, content that is timely, thoughtful, and based on rigorous and bulletproof analysis. Because of this tireless dedication to the truth, we need to set the record straight on a subject of great importance to us all: Mardi Gras.

Fellow blogger Brett Burlison runs a plaintiff-oriented blog in San Francisco, and he recently authored a post entitled “Product Liability Gets More Difficult.” The post is reproduced below:

Let’s say you decide to head south and enjoy Mardi Gras. But let’s also say that you have the unfortunate distinction of being harmed by a float. Maybe the float collapses and falls on you or maybe you suffer personal injuries due to one of the vehicles in the parade.

In any event you’re injured. You would think that there would be laws that protect you and other injury victims like you in such a situation and that make sure you are adequately compensated for your injuries – made whole.

Well, not so fast – the legislature in Louisiana is considering a bill that would actually make it harder for injury victims to be compensated if they are harmed at Mardi Gras. According to media reports, a bill has been introduced by a state representative from New Orleans that would require proof of gross negligence or a deliberate act in order to hold a company that makes floats for Mardi Gras liable for damages due to injuries of death.Two years ago an individual was crushed by a float that was defective. Advocates for injury victims believe that the bill has been introduced to simply shield float manufactures from liability for future similar events.

That’s not really the case. As reported here, and as evident from the language of the bill, the limitation of liability does not extend “to any claim or cause of action against a manufacturer or lessor for damages arising from the failure in the design, manufacture, or maintenance of the trailer or float.” H.B. 902, 2010 Reg. Sess. (La. 2010). Rest assured that, were you to be injured by a float, your products liability action would be available, although I’m not sure how to define the “user” of a float.

Apparently there was some confusion as to the scope of the bill, with the bill’s sponsor merely wanting to limit the filing of frivolous lawsuits, i.e., potential plaintiffs severely injured by beads thrown from the float. But there is some question about a constituent of the bill’s sponsor benefiting from the bill. As an example of the type of lawsuits filed, see the New Orleans Metro Crime and Courts News, discussing the appeal of a case of a woman injured by a flying coconut. She claimed injuries including a cut to the forehead, a loss of interest in Mardi Gras, and “nightmares of airborne coconuts.” Apparently, in the olden days of Mardi Gras, persons riding on the float could hurl the coconuts at onlookers and be protected from ordinary negligence. Although the coconut crowd has adopted a tamer, “handing out” policy, other groups still toss “missiles” such as beads, cups, and doubloons from their floats.

On the legal side, surely this move is motivated to protect Mardi Gras from Lousiana’s system of pure comparative negligence, where any drunken reveler in any other setting may run up defense costs and potentially obtain a recovery even if he is 99 percent negligent in causing his own injury. (The coconut article notes the tens of thousands in legal fees spent solely by one group in defense of claims). Nevertheless, if you choose to attend Mardi Gras, beware of flying objects, and plan out your legal theory about how you were using a float at the time of your injury.