Louisiana Injury Lawyer Blog

Paul H. Dué of the Baton Rouge, Louisiana personal injury law firm of Dué, Price, Guidry, Piedrahita & Andrews has been selected for inclusion in Best Lawyers in America for 2012. For 2012, Dué has been recognized in four categories, including Personal Injury Litigation and Product Liability Litigation. Dué has been recognized by Best Lawyers every year since 1995.

The standard commercial general liability policy contains "work-product" exclusions. "These exclusions reflect the intent of the insurance industry to avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured's defective products and faulty workmanship." McKenzie & Johnson, 15 La. Civil Law Treatise, Insurance Law and Practice, 3d, p.555.

ELEMENTS OF AN INADEQUATE WARNING CLAIM UNDER THE LPLA

I. claimant sustains damages caused by a characteristic of a product

AND

II. damages arose from a reasonably anticipated use of the product

--use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances

AND

III. damage causing characteristic of the product is unreasonably dangerous

a. characteristic existed at the time the product left the control of its manufacturer

OR

b. characteristic resulted from a reasonably anticipated alteration or modification of the product

--a change in a product that the product's manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances, and also means a change arising from ordinary wear and tear, but not because the product does not receive reasonable care and maintenance

BUT reasonably anticipated alterations or modifications of the product does not mean:

i) alteration, modification or removal of an otherwise adequate warning provided about a product, or

OR

ii) the failure of a person or entity, other than the manufacturer of a product, reasonably to provide to the product user or handler an adequate warning that the manufacturer provided about the product, when the manufacturer has satisfied his obligation to use reasonable care to provide the adequate warning by providing it to such person or entity rather than to the product user or handler

AND

IV. manufacturer failed to use reasonable care to provide an adequate warning of the damage causing characteristic and its danger to users and handlers of the product

BUT an adequate warning is not required if:

a. the product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics

OR

b. The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

UNLESS the manufacturer proves that at the time the product left his control he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the characteristic that caused the damage or the danger of such characteristic

BUT a manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product

I. claimant sustains damages caused by a characteristic of a product

AND

II. damages arose from a reasonably anticipated use of the product

--use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances

AND

III. damage causing characteristic of the product is unreasonably dangerous

a. characteristic existed at the time the product left the control of its manufacturer

OR

b. characteristic resulted from a reasonably anticipated alteration or modification of the product

--a change in a product that the product's manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances, and also means a change arising from ordinary wear and tear, but not because the product does not receive reasonable care and maintenance

AND

IV. when the product left the manufacturer's control
(i) there existed an alternative design for the product that was capable of preventing the claimant's damage

AND

(ii) the likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product

BUT an adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product

--a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made

a. he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage or the danger of such characteristic

OR

b. he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the alternative design identified by the claimant

OR

c. the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality

The congressionally mandated product safety database, SaferProducts.gov, was launched on March 11, 2011 by the United States Consumer Product Safety Commission (CPSC). The site can be used to report harm or risks of harm caused by consumer products, with the reported information being searchable by persons interested in seeking safety information about consumer products.

Continue reading "Safer Products Database Launched by Consumer Product Safety Commission (CPSC)" »

The Louisiana Supreme Court struck another blow to victims of allegedly defective products on February 18, 2011, when it issued the per curiam decision of Payne v. Gardner, 2010-2627 (La. 2/18/11). A child was injured after climbing onto and then attempting to ride the moving pendulum of an oil well pump. The Rapides Parish, Louisiana, District Judge granted the oil well pump manufacturer's motion for summary judgment. The Third Circuit Court of Appeal reversed. The Louisiana Supreme Court never addressed the factual issue of whether the allegedly defective product was unreasonably dangerous because the Supreme Court found that riding the oil well pump was not a reasonably anticipated use of the product at the time it was manufactured in 1952, although the manufacturer had actual knowledge of many similar accidents after the oil well pump left its control.

The Supreme Court opinion does not discuss the nature of the alleged defect in the oil well pump, nor the cause of action alleged. Under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq., a product can be unreasonably dangerous in one of four ways: 1) construction or composition; 2) design; 3) inadequate warning; and 4) express warranty. Whether a product is unreasonably dangerous in design or because of an inadequate warning is determined at the time the product left the manufacturer's control. However, if the manufacturer later obtains actual knowledge or is imputed with constructive knowledge of a dangerous characteristic of the product, then the manufacturer must use reasonable care to provide a post-sale warning to users and handlers about the dangerous characteristic.

So, this commentator believes that if a manufacturer becomes aware (or should become aware) that its product is being used in an unsafe manner or is being misused, then the use becomes not only foreseeable, but forseen, and therefore is reasonably anticipated from the standpoint of the manufacturer. Once this knowledge is actually known or imputed to the manufacturer, then it must use reasonable care to provide post-sale adequate warnings. So, reasonably anticipate use is not a complete bar to recovery in a warnings claim, but rather must be determined based on the post-sale use and knowledge of the manufacturer.

The Louisiana Office of the State Fire Marshal issued a News Release regarding fireworks safety issues this holiday season. Fire Marshal H. "Butch" Browning said, "Due to the fire hazard as well as the inherent risk of injury involved in fireworks, citizens are urged to use extreme caution when handling fireworks to ensure a safe, fire-free holiday". "The few moments of pleasure consumer fireworks bring are not worth the risk of property loss, injury, or death". "Avoid needless risks". "When things go wrong, they go wrong very fast, and often with disastrous consequences." "Permanent scarring, loss of vision, dismemberment - these are all too often the harsh realities of amateur fireworks use."

The News Release reminds us that:

According to the National Fire Protection Association (NFPA), amateur firework usage endangers not only the users, but also bystanders and surrounding property and structures. Pyrotechnic devices ranging from sparklers to aerial rockets cause thousands of fires and serious injuries each year.

In recent years, fireworks have been one of the leading causes of injuries serious enough to require hospital emergency room treatment. Fireworks can result in severe burns, fractures, scars, lifelong disfigurement or even death. The thousands of serious injuries each year typically harm the eyes, head, or hands and are mostly reported in states, such as Louisiana, where fireworks are legal. Even sparklers, which are considered by many to be harmless, can reach temperatures in excess of 1200 degrees F.

The Louisiana Fire Marshal's Office offers the following fireworks safety suggestions:

-- Always read and follow the label directions carefully

-- Always have a garden hose or water bucket nearby for medical emergencies and/or to douse spent or misfired fireworks.

-- Adults should always supervise fireworks activity.

-- Fireworks should be placed on a hard, smooth surface prior to ignition. NEVER light fireworks in your hand.

-- Quickly light one firework at a time, and move away quickly after lighting.

-- Never point or throw fireworks at people, pets, cars, or buildings

-- Keep fireworks away from small children.

-- Do not alter or make your own fireworks.

-- After displays, never pick up fireworks that may be left over. Fireworks that have been ignited and fail to immediately explode or discharge can cause injury, as they may still be active. Children should always tell an adult if they find fireworks rather than picking up smoking or charred fireworks themselves.

Continue reading "Louisiana Fireworks Safety Issues!" »

After teaching Insurance Law during the Fall 2010 semester at the Southern University Law Center (SULC), Baton Rouge, Louisiana product liability and personal injury lawyer, Scott Andrews, was selected to teach Product Liability at the Southern University Law Center during the Spring 2011 semester.

The Southern University Law Center is located on a bluff overlooking the Mississippi River and provides opportunity to under-represented racial, ethnic, and economic groups.

Scott Andrews joins the faculty ranks of the senior member of the firm, Paul H. Due', who previously taught at the Southern University Law Center, and the Of Counsel to the firm, David W. Robertson, who is the W. Page Keeton Chair in Tort Law at the University of Texas School of Law.

The Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews was selected for first tier (those firms that scored within a certain percentage of the highest scoring firms) inclusion in the 2010 inaugural rankings of U.S. News - Best Lawyers "Best Law Firms", in the practice areas of Personal Injury Plaintiffs and Product Liability Plaintiffs. "The selection involved surveying thousands of law firm clients; leading lawyers and law firm managers; partners and associates; and marketing officers and recruiting officers. Each were asked what factors they considered vital for clients hiring law firms, for lawyers choosing a firm to refer a legal matter to, and for lawyers seeking employment."

"Client and lawyer surveys collected mostly reputational data. Using a scale of 1 (weakest) to 5 (strongest), clients voted on expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether they would refer another client to a firm. Lawyers voted on expertise, responsiveness, integrity, cost-effectiveness, and whether they would refer a matter to a firm and whether they consider a firm a worthy competitor."

The Fourth Circuit Court of Appeal in Guillot v. DaimlerChrysler Corp., 2008-1485 (La. App. 4 Cir. 9/24/10), upheld awards of $2,775,000 to a mother and $2,100,000 to a father for the death of their 17 day old brain damaged baby who was surgically removed from the mother's abdomen following an accident, and was removed from life support 17 days later. The mother was pinned between the vehicle door and a brick column when the defective Jeep Cherokee rolled backwards.

The Court of Appeal reasoned as follows: "We do not find that the trial court abused its vast discretion with respect to the general damage award, nor do we find that the award shocks the conscience. It is indisputable that the unique facts of this case are extraordinarily tragic. Additionally, the Louisiana Supreme Court has held that '[t]he determination of the severity of mental anguish of distress resulting from the death of another is a fact question which depends upon several components, including, but not limited to, the closeness of the ties between the parties, the degree of love in the relationship, and the length of the relationship.' Herbert v. Webre, 2008-0060 (La.5/21/08), 982 So.2d 770, n. 7 (citing Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 695)."

On August 20, 2010, another Yamaha Rhino rollover accident claimed the life a Louisiana woman and injured a Louisiana teenager. The accident occurred on La. Highway 124 around Harrisonburg, Louisiana. The Louisiana woman lost control of the 2004 Yamaha Rhino and exited the right side of the road, and then reentered the road and began rolling over.

The Yamaha Rhino is increasingly the subject of product liability lawsuits alleging instability because abrupt maneuvers or aggressive driving cause rollovers even on flat, open areas.

Continue reading "Louisiana Yamaha Rhino Rollover Accident" »

Baton Rouge, Louisiana personal injury attorney, Paul H. Due', was again selected by his peers for inclusion in The Best Lawyers in America ® 2011 for the seventeenth straight year (1995-2011), this time in the fields of Personal Injury Litigation and Products Liability. (Copyright 2011 by Woodward/White, Inc., of Aiken, S.C.). Inclusion in Best Lawyers ® is based on an exhaustive peer-review survey in which more than 39,000 attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas.

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."

Continue reading "Baton Rouge, Louisiana Personal Injury Lawyer Selected Again for Inclusion in The Best Lawyers In America ®" »

A 19 year old active duty soldier was killed in a single vehicle car crash in Natchitoches Parish, Louisiana on July 2, 2010, when his 1994 Ford Explorer ran off the right side of Louisiana Highway 120 in a curve. As the driver attempted to reenter the highway, he over-corrected and his Ford Explorer began to rotate to the left and then rolled over. The driver was not wearing his seat belt.

Louisiana State Troopers in Troop E have investigated 32 fatal car crashes this year, resulting in 37 fatalities

Continue reading "Louisiana Soldier Killed in Ford Rollover Accident in Natchitoches" »

On the evening of March 31, 2010, a distracted Louisiana truck driver allegedly caused a nine vehicle accident on Interstate 57 in Illinois, when the 18 wheeler he was operating rear-ended a vehicle in a construction zone. The Louisiana truck driver was allegedly looking down at a map when he encountered the slow moving traffic. Three people were killed when their SUV caught on fire. Thirteen people were hospitalized.

According to the United State Department of Transportation, there are three primary types of distracted driving: 1) visual or taking your eyes off the road; 2) manual or taking you hands of the wheel; and 3) cognitive or taking your mind off what you are doing. Examples of activities that distract drivers include texting, grooming, talking to passengers, eating and drinking, reading (including maps), watching electronic devices, using a cell phone and changing the radio station or other music player.

Continue reading "Distracted Louisiana Truck Driver Causes Rear End 18 Wheeler Accident in Illinois" »

On March 19, 2010, an Iowa jury returned a $32.8 million verdict in favor of Ivon Toe, Assata Karlar and five passengers in a 1997 Chrysler minivan that rolled over after sustaining a tire tread separation on the rear mounted Cooper Tire. Ivon Toe was rendered quadriplegic and Assata Karla suffered a wrongful death. Part of the jury verdict included punitive damages assessed against Cooper Tire. The plaintiffs' attorneys relied on Cooper Tire's delay for years in making needed changes to its tires despite Cooper Tire documents wherein Cooper Tire executives discussed tire failure rates and the cost of remediation. Cooper Tire claims its tires, including the tire involved in the Toe case, "are safe and reliable, exceeding not only all government standards but also our own, more rigorous, internal standards." Cooper Tire says it will appeal the jury's verdict. The case is Toe v. Cooper Tire and Rubber, CL 10694, Iowa District Court, Polk County (Des Moines).

Continue reading "Cooper Tire Tread Separation Results in $32.8 Million Jury Verdict for Rollover Accident Resulting in Quadriplegia and Wrongful Death" »