Articles Posted in Truck Accidents

The Louisiana Supreme Court in a 4-3 decision held that La. Code Civ. P. art. 596A(3) continues to suspend prescription for putative class members when a class action filed in a Louisiana state court is removed to federal court. Tenesha Smith v. Transport Services Company of Illinois, 2013-2788 (La. 7/1/14). In Smith, a class action was filed in Louisiana state court and then removed to federal court where class certification was denied on June 1, 2004. Notice of the denial of class certification was mailed to the putative class members on September 7, 2004. Another state court suit was filed and around 500 putative class members joined the state court suit on October 4, 2004, less than thirty days from the mailing of notice of the denial of class certification.

The Louisiana Supreme Court held that removal has no effect on the suspension of prescription provided by La. Code Civ. P. art. 596. The filing of a class action petition in a Louisiana state court suspends prescription by operation of Article 596. Even if the case is removed to federal court, prescription cannot recommence until one of Article 596’s exclusive statutory triggering events for re-commencing prescription has occurred: (1) the submission of an election form; (2) notice of the restriction or redefinition of the class to exclude an individual; or (3) notice of the dismissal of the action, of a judgment striking the demand for class relief, or of a judgment denying the motion for class certification or vacating a previous order certifying the class.

Under the facts of the case, the Louisiana Supreme Court held that prescription did not recommence until “thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed.” The Smith plaintiffs filed their amended petition within this thirty day period.

The majority found Quinn v. Louisiana Citizens Property Insurance Corp., 12-0152 (La. 11/2/12), 118 So.3d 1011, 1019, inapposite. In Quinn, the Louisiana Supreme Court held that La. Code Civ. P. art. 596 applied to putative class actions filed in Louisiana state court and did not provide cross-jurisdictional tolling in the context of a putative class action “filed in federal court.” The Smith dissenters found no logical basis in which to distinguish Quinn and believed that Quinn‘s rationale applied equally to suits filed in federal court and to suits removed to federal court.
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The Louisiana Supreme Court held that forum selection clauses are not per se violative of public policy in Louisiana. Shelter Mutual Insurance Company v. Rimkus Consulting Group, Inc. of Louisiana, 2013-1977 (La. 7/1/14). Specifically, a plurality of the Louisiana Supreme Court (three Justices agreeing with the opinion and one Justice concurring in the result), enforced a forum selection clause found in the written “Terms and Conditions” of a tacit agreement between Shelter Mutual Insurance Company and Rimkus Consulting Group that required litigation arising out of Rimkus’s engineering evaluation and expert witness services in connection with Shelter’s defense of litigation resulting from a claim for hurricane damages brought by a corporation insured by Shelter be brought in Texas.

The Louisiana Supreme Court held that only specific forum selection clauses declared unenforceable and against public policy by the Louisiana Legislature are invalid and unenforceable. The Louisiana Supreme Court distinguished the specific legislative limitations on forum selection clauses found in La. R.S. 9:2779(A), La. R.S. 51:1407(A) and La. R.S. 23:921(A)(2). The Louisiana Supreme Court rejected a blanket application of the public policy stated in these statutes to every contractual forum selection clause.

La. R.S. 9:2779(A) expressly declares out-of-state forum selection clauses against public policy in a small subset of construction contracts for “public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state” and states that “provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state…are inequitable and against the public policy of this state.”

La. R.S. 51:1407(A) of The Louisiana Unfair Trade Practices Act invalidates contractual selections of venue or jurisdictions involving transactions or interactions between out-of-state, professional telephone solicitors and Louisiana residents.

La. R.S. 23:921(A)(2) prohibits forum selection clauses in employment contracts unless the choice of forum clause “is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is subject to the civil or administrative action.”

The three dissenters opined that all forum selection clauses are unenforceable because such clauses (1) are prohibited by La.Code Civ. P. art. 44(A), which states: “[a]n objection to the venue may not be waived prior to the institution of the action,” (2) contravene a strong public policy of Louisiana, and (3) are contrary to Louisiana’s comprehensive venue scheme and Louisiana law on forum non conveniens.
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Louisiana Attorney General James “Buddy” Caldwell filed a lawsuit on June 27, 2014 with the 19th Judicial District Court for the Parish of East Baton Rouge against Fresenius Medical Care North America and its Louisiana dialysis clinics over the use of dialysis drugs, GranuFlo and NaturaLyte. The FDA issued a Class I recall on these drugs after it was found that the products could put patients at risk for cardiac arrest when not prescribed appropriately.

The Attorney General’s lawsuit seeks a return of profit made by Fresenius on the sale of these drug in Louisiana and seeks civil penalties of up to $5,000 per violation under Louisiana’s Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401, et seq.

A number of class-action lawsuits have also been filed against Fresenius. The federal lawsuits have been consolidated into Multi District Litigation (MDL) 2428: In Re: Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation in the United States District Court for the District of Massachusetts.
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On May 15, 2014, a West Baton Rouge Parish jury awarded $825,751 to a woman whose vehicle was rear-ended by an Entergy bucket truck.

Baton Rouge attorneys, Randy Piedrahita and Don Cazayoux, argued the Entergy Bucket truck totaled forty-one year-old Lana Averette’s car, causing her significant injuries. “Two-thirds of the award was for Lana’s medical bills, the rest being for her lost wages and other damages,” said Randy Piedrahita, lead counsel. The 11-1 jury verdict came after four of Lana’s doctors testified her injuries required $500,000 of future medical care so she could return to the workforce. No award for future losses from the date of trial forward besides medical expenses was requested by Lana Averette’s attorney, as her doctors said so long as the medical procedures were done, she would be able to return to work. “We couldn’t ask the jury to believe these treatments would work and then in the same breath ask them to make an award just in case they didn’t,” Piedrahita said. “We’re glad the jury came back with a quick verdict that vindicated everything Lana and her doctors were saying.” It is unknown whether Entergy will be appealing this jury verdict.

Randy Piedrahita is an attorney with the firm of Dué, Guidry, Piedrahita & Andrews and is a candidate for 19th JDC District Judge for the Parish of East Baton Rouge. Don Cazayoux is an attorney with the firm of Cazayoux Ewing and is a former Congressman, State Representative, and United States Attorney.

NHTSA and GM entered into a consent order on Friday, May 16, 2014, under which GM will pay the statutory maximum civil penalty of $35 million for its failure to comply with the notification requirements of the Safety Act — National Traffic and Motor Vehicle Safety Act of 1966 as amended and recodified, 49 U.S.C. § 30101, et seq. — for its failure to provide timely notice to NHTSA of the safety related defect in the GM ignition switch. During the investigation into GM’s conduct, a 2008 Technical Learning Symposium presentation for GM employees was uncovered that revealed a shocking list of Judgment Words for GM employees to avoid using in reports and presentations. Included on the list are:
Per the terms of the consent order, GM has initiated efforts to improve employee training, and will expressly disavow such statements diluting the safety message.

The civil penalty does not relieve GM from civil liability for injuries caused by the defective ignition switch. GM’s liability for injuries will be governed by state law. According to Baton Rouge, Louisiana auto defect lawyer and Products Liability law professor, Scott Andrews, in Louisiana, the manufacturer-friendly Louisiana Products Liability Act (LPLA), La. R.S. 9:2800.51, et seq., provides the exclusive theories of liability against manufacturers whose products have caused injuries. The Act does not include the word “defect” anywhere within the four corners of the statutes. Rather, in Louisiana, the manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
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Louisiana trial lawyers, Paul H. Dué and B. Scott Andrews, of the Baton Rouge, Louisiana personal injury law firm of Dué, Guidry, Piedrahita & Andrews have been selected for 2014 membership in The National Trial Lawyers Top 100 Trial Lawyers.

The National Trial Lawyers is a member-driven organization composed of premier trial lawyers from across the country who meet stringent qualifications. Only top trial lawyers from Louisiana who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.

Prospective members of The National Trial Lawyers are carefully screened prior to receiving an invitation for membership. Membership is not automatically renewed; attorneys are reevaluated annually to determine whether their activities and accomplishments qualify them for continued membership.
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For the second straight year, Louisiana Super Lawyers has selected every member (Paul H. Dué, Kirk A. Guidry, Randy A. Piedrahita and B. Scott Andrews) of the Baton Rouge, Louisiana personal injury law firm of Dué, Guidry, Piedrahita & Andrews.

The reason each member has been selected for inclusions in the 2014 Louisiana Super Lawyers list in the practice area of Personal Injury is clear – more than 27 years of handling referrals of complex and difficult personal injury cases from lawyers around the world. The firm’s success is rooted in academia, with all firm members having graduated at the top of their law school class and having served as members of or as editors of their Law Reviews. The firm boasts two former Louisiana Supreme Court law clerks, a former U.S. Fifth Circuit Court of Appeals law clerk, an Adjunct Professor of Law, two past Presidents of the Louisiana Association for Justice (LAJ), and both a former Louisiana appellate judge and an esteemed University of Texas Law Professor “of counsel”.

This academic background, combined with dedication, hard work and extensive experience, has led to hundreds of millions of dollars in judgments, settlements and verdicts. The firm’s success has been shared with the extensive number of attorneys around the world who have referred complex personal injury cases to the firm – and who find the firm’s experience and funding assistance invaluable in representing their seriously injured clients.

For the fourth consecutive year, the Baton Rouge, Louisiana personal injury law firm of Dué, Guidry, Piedrahita & Andrews has been recognized in the “Best Law Firms” rankings by U.S. News & World Report and Best Lawyers. The firm was recognized for 2014 in the plaintiff practice areas of Personal Injury Litigation, Product Liability Litigation, Medical Malpractice, and Admiralty & Maritime Law.

Firms included in the 2014 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

“U.S. News has more than two decades of experience in providing the public with the most accurate and in-depth rankings of a wide range of institutions, including our Best Law Schools rankings,” says Tim Smart, Executive Editor of U.S. News & World Report. “Law firms are an integral part of our rankings and a natural accompaniment to the law school rankings.”

The 2014 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US. Over 12,000 attorneys provided over 330,000 law firm assessments, and almost 7,000 clients provided close to 20,000 evaluations. In addition, to provide personal insight, a new Law Firm Leaders Survey was implemented in the decision-making process.

“Because we combine hard data with peer reviews and client assessments,” says Steven Naifeh, President and Co-Founder of Best Lawyers, “more and more clients inform us ours are the most thorough, accurate, and helpful rankings of law firms ever developed.”

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.
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In McBride v. Estis Well Service, 12-30714 (5th Cir. 10/2/13), the United States Fifth Circuit Court of Appeals held that Jones Act Seamen may recover punitive damages for their employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel. Such breach reflects a reckless disregard for the safety of the crew, who remain “wards of admiralty” deserving special protection under maritime law.

The general maritime law cause of action (unseaworthiness) and remedy (punitive damages) were established before passage of the Jones Act, and the Jones Act did not address that cause of action or remedy. Thus, the Fifth Circuit held that the punitive damages remedy remains available under that unseaworthiness cause of action unless and until Congress intercedes.

The Court concluded as follows: “Like maintenance and cure, unseaworthiness was established as a general maritime claim before the passage of the Jones Act, punitive damages were available under general maritime law, and the Jones Act does not address unseaworthiness or limit its remedies. We conclude, therefore, that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness.”

The Fifth Circuit cited as authority three law review and journal articles authored by University of Texas School of Law Distinguished Teaching Professor and W. Page Keeton Chair in Tort Law, David W. Robertson. Professor Robertson is one of the nation’s leading experts in admiralty law and serves of counsel to the Baton Rouge, Louisiana admiralty and maritime law firm of Dué, Guidry, Piedrahita & Andrews.
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