The Future of the Legal Community

Our attorney, Rachel Naquin, helped organize a camp for students from local high schools to learn more about the law and our judicial system.

The New Orleans Federal Bar Association’s Justice Camp was a three-day program that took place from June 25, 2019 to June 27, 2019 at the United States District Court for the Eastern District of Louisiana. The purpose of the camp was to encourage students to learn about the legal system, including careers in the legal community, and to develop basic advocacy skills in a fun and interactive way.

Above are the students who attended the 2019 Justice Camp with Ms. Naquin pictured in the far right of the top row.

Ms. Naquin was particularly involved in developing and leading the camp’s culminating event: an advocacy skills competition. Students were given a mock trial problem involving the constitutional rights of public school students. After receiving guidance from local lawyers, including our own Irving Warshauer, Palmer Lambert, and Claire Berg, the students then performed either an opening statement, direct examination, cross-examination, or closing argument before Chief Magistrate Judge Karen Wells Roby and Magistrate Judge Janis van Meerveld, during which our attorney Brittany Wolf played the role of a witness.

To learn more about the Justice Camp and see more photos from the event, visit the website for the New Orleans Federal Bar Association.

Entering the Fray of the 3M Combat Earplug Litigation

Because of their extensive experience with multidistrict litigation, our attorneys, Palmer Lambert and Claire Berg, were asked to address the HarrisMartin’s 3M Combat Earplugs Litigation Conference on Military Discovery, Science and Other MDL 2885 Hurdles on May 30, 2019. 

Mr. Lambert and Ms. Berg participated as members of the Spotlight Focus on Legal Issues Panel to address the unique legal issues that are expected to arise in the 3M Combat Arms Earplug MDL, including statute of limitations, the combatant activities defense, the government contractor defense, and causation.

Mr. Lambert was recently appointed to the Joint Statute of Limitations Committee for the 3M Combat Arms Earplug Products Liability Litigation (MDL 2885) by the Honorable M. Casey Rodgers in the Northern District of Florida. Mr. Lambert joins the team seeking a recovery for veterans who have suffered hearing loss after using the combat earplugs.

The firm is currently reviewing cases for the 3M Combat Arms Earplug Products Liability Litigation. Please contact us with any questions you may have.

Settlement Reached Resolving Xarelto Multidistrict Litigation Claims

Our firm–which, through its partner Gerald Meunier as Co-Liaison Counsel, had a leadership role on behalf of plaintiffs–is pleased to announce that the makers of the popular blood-thinner Xarelto® have agreed to a $775,000,000 settlement to resolve litigation by patients who suffered bleeding injuries after taking the prescription drug.

According to the agreement announced on March 25, 2019, approximately 25,000 claims filed against Bayer Healthcare (OTC: BAYR) and Janssen Pharmaceuticals Inc., a subsidiary of Johnson & Johnson (NYSE: JNJ), now will be resolved. These claims include cases in federal and state courts.

“This is a fair resolution for thousands of consumers who have substantial claims,” says Mr. Meunier. “We appreciate both the hard work of plaintiffs’ counsel and the guiding role played by federal judge Eldon E. Fallon in overseeing the federal litigation here in New Orleans.”

Under the settlement agreement, a Claims Administrator and two Special Masters will be retained to manage the settlement process and will be responsible for determining how funds will be allocated to those who are entitled to payment. It is expected that this process will continue throughout the remainder of 2019.

When the Coverage Doesn’t Cover It

It can often be a difficult decision to pursue a defendant in his or her individual capacity to recover funds awarded in a judgment that exceeds the value of the applicable liability policy. Nonetheless, a plaintiff’s attorney may find it necessary to do so in order to make the client “whole.” Yet the fruits of this effort may become bittersweet if the defendant lacks liquid funds to satisfy the judgment.

Our attorney, Brittany Wolf-Freedman, wrote an article for the December 2018 issue of Louisiana Advocates published by the Louisiana Association for Justice, explaining the options available in those situations.

In such cases, plaintiff’s counsel may need to identify assets for potential seizure. Under certain circumstances, which ought to be reserved for extreme cases, the plaintiff may wish to leverage the defendant’s home to cover the remainder of the debt.

Unlike many states, which wholly exempt a defendant’s homestead from seizure, Louisiana’s homestead exemption only applies to the first $35,000 of the value of the home. See La. Rev. Stat. § 20:1. Thus, if a homeowning defendant fails to satisfy a judgment against a plaintiff whose injuries exceed the equity value of the home, the plaintiff has several available avenues through which she or he may leverage the defendant’s home to recover the debt.

Pursuant to the statute, if a creditor, being the plaintiff, were to force the sale of the homestead, the first $35,000 in profits realized from such sale would remain with the defendant, assuming the he did not waive his homestead exemption. Any remaining profits would then be allocated toward satisfaction of the judgment. While Louisiana law imposes limitations on the right of a judgment creditor to seize or force the sale of the homestead, these limitations apply solely in the context of judgments arising out of consumer credit card charges. See La. Rev. Stat. § 13:3851.1. The protection of the homestead does not extend to those whose debt arises out of tort claims, and therefore personal injury creditors may seek to satisfy a judgment through the seizure of the defendant’s home.

There are two vehicles by which a judgment creditor may seize the homestead of the judgment debtor. The first is actual seizure under La. Code Civ. Proc. art. 2291. Through a writ of fieri facias, the judgment creditor may direct the sheriff to seize the property. La. Code Civ. Proc. art. 2293. The sheriff is then required to provide the judgment debtor with notice before the property may be sold at a sheriff’s sale, with the proceeds (in excess of the $35,000 homestead exemption) allocated toward satisfaction of the plaintiff’s money judgment. Id.

The second, and less drastic, vehicle through which a judgment creditor may seize a debtor’s property, including the homestead, is through constructive seizure. Pursuant to Louisiana Revised Statutes §§ 13:3851-3861, the creditor may assert his right over the property, thereby entitling him to proceeds of any subsequent voluntary sale, without causing actual seizure or forced sale of the home. Through this process, the judgment creditor asserts his legal right by providing notice to the sheriff, who then enters a description of the property to be seized in a “Seizure Book,” and files for recordation in the parish where the property is located.

In the most extreme instances, Louisiana law clearly permits a tort plaintiff who obtains an excess judgment to oust a defendant from his home if the defendant has no other meaningful assets to satisfy a judgment against him. The law affords a judgment creditor enormous power in this respect, and it should be wielded judiciously. On one hand, it is a drastic remedy to force a defendant out from his home. On the other hand, it may not be financially feasible for a severely injured plaintiff to merely assert her legal right to the home through constructive seizure. When substantial medical bills and other expenditures accrue against your client, it may simply be impracticable to wait to enforce a judicial mortgage following a voluntary sale of the defendant’s home at an uncertain time in the future.

Under the right circumstances, there is a third option available to a judgment creditor that allows for prompt satisfaction of the judgment without evicting a defendant from his home. To proceed with this option, the defendant must have sufficient equity in the home so that he may take out a home equity loan to satisfy the judgment. As a practical matter, the procedure would occur as follows: Before a plaintiff may force the sale of the home through an actual seizure, the plaintiff must wait to execute the judgment until after the delay for appeal from the judgment has elapsed. La. Code Civ. Proc. art. 2252. The defendant must then take the suspensive appeal. While the suspensive appeal is pending, the defendant who wishes to avoid the seizure of his home may be encouraged, and agree, to take out a home equity loan and use the funds to satisfy the judgment debt.

Though it requires additional effort and cooperation from the parties and their counsel, this third avenue is the most mutually advantageous, as it allows for prompt satisfaction of the plaintiff’s judgment and does not force the defendant out of the residence which he calls “home.” Regardless of the path you and your client decide to tread, proceed with caution, as the decision to pursue a defendant individually in light of an excess judgment is not one that should be made lightly.

***Original article edited by Rachel Naquin for purposes of this blog.

Walter Morrison to Speak at MAJ’s Mid-Year Convention

To conclude a busy year, Mr. Walter “Bubba” Morrison will be speaking at the Mid-Year Convention for the Mississippi Association for Justice this Thursday, December 13, 2018, from 9:00 a.m. to 10:00 a.m. at the Mississippi College School of Law. His presentation is titled “Evaluating a Potential Medical Malpractice Case Pre-Suit.”
Mr. Morrison (pictured far right) has spoken at several events this year.

On October 25, 2018, Mr. Morrison, presented to the local judiciary as a Fellow of the American College of Trial Lawyers at the Mississippi Trial and Appellate Judges Conference in Jackson, Mississippi.

A month later, on November 30, 2018, Mr. Morrison led a CLE on conducting the direct examination of a medical expert as part of a seminar on discovery and trial skills for the Mississippi Chapter of the American College of Trial Lawyers.

See more details about Mr. Morrison’s upcoming event here.

A Professional End to the Year

Several of our attorneys are presenting on professionalism as part of the New Orleans Bar Association’s end-of-year Procrastinators’ Programs offered until December 28, 2018.

In light of his involvement with the Taxotere multidistrict litigation and his status as co-liaison counsel for the Taxotere multidistrict litigation, Palmer Lambert was selected to moderate a panel discussion titled “Lessons Learned: A Young Lawyer’s Perspective on Professionalism in Drug and Device Litigation,” which took place on December 11, 2018. Mr. Lambert also participated later that week on December 13, 2018, as a member of a panel on managing complex litigation, alongside the Honorable Patrick J. Hanna of the Western District of Louisiana and Celeste Coco-Ewing.

Coming up on Wednesday, December 19, 2018, Mr. Irving Warshauer is slated to speak on a panel at 10:10 a.m. to 11:10 a.m. with the Honorable Rachael D. Johnson of Orleans Parish Civil District Court and Peter E. Sperling, titled “Professionalism in Trial Practice–Views from the Bench and Bar.” The panel will address topics in professionalism, such as how to properly communicate through brief-writing, letters, and emails, appropriate colloquy between counsel during depositions and in the courtroom, and the importance of having mentors.

Mr. Gerald Meunier will follow with a presentation on Thursday, December 20, 2018, from 10:10 a.m. to 11:10 a.m., titled “Maintaining Professionalism in High-Stakes Litigation: How to Zealously Represent Your Client Without Risking Your Reputation.” He will be accompanied by the Honorable Kurt D. Engelhardt of the U.S. Court of Appeals for the Fifth Circuit and Andrea Price.

All presentations for the New Orleans Bar Association’s Procrastinators’ Programs will be held on the 11th Floor of the Pan American Life Building located at 601 Poydras Street, New Orleans, Louisiana 70130. For more details about the Procrastinators’ Programs, click here.

Protecting Louisiana Drivers Across State Lines

Under Louisiana law, unless uninsured motorist (UM) coverage is offered and rejected in writing, such coverage shall be implied into all policies issued in Louisiana that provide coverage for automobile liability. But can this statutory implication of UM coverage apply outside of Louisiana? The United States Court of Appeals for the Fifth Circuit has answered that question in the affirmative.

The purpose of UM coverage in Louisiana “is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance.” Henson v. Safeco Ins. Companies, 585 So. 2d 534, 537 (La. 1991). Considering this strong public policy, the Louisiana Supreme Court has held that the Louisiana UM statute implying coverage “must be liberally construed, while the statutory exceptions to UM coverage must be strictly construed.” Gray v. Am. Nat. Prop. & Cas. Co., 2007-1670 (La. 2/26/08), 977 So. 2d 839, 845 (citing Duncan v. U.S.A.A. Ins. Co., 2006-363 (La. 11/29/06), 950 So. 2d 544, 547; Roger v. Estate of Moulton, 513 So. 2d 1126, 1130 (La. 1987)).

Absent an express waiver, Louisiana law implies UM coverage into every auto liability policy issued in Louisiana. The Louisiana UM statute goes on to provide that “its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.” La. Stat. Ann. § 22:1295(1)(a)(iii) (emphasis added). The Louisiana First Circuit Court of Appeal in Triche v. Martin, 2008-1220 (La. App. 1 Cir. 5/8/09), 13 So. 3d 649, found this section of the Louisiana UM statute to place a geographical limit on Louisiana’s implied UM coverage, declining to extend coverage to a collision outside of Louisiana involving Louisiana residents. However, after a thorough analysis of Louisiana law, the United States Court of Appeals for the Fifth Circuit declined to adopt the First Circuit’s interpretation in Triche, and instead, implied UM coverage for a North Carolina accident under a Louisiana-issued policy.

In Boyett v. Redland Insurance Company, 741 F.3d 604 (5th Cir. 2014), the plaintiff, a commercial truck driver employed by a Louisiana company, was injured while making a delivery of lumber to a company in North Carolina when some of the lumber fell off a forklift operated by a lumber company employee and onto the plaintiff. The plaintiff subsequently filed a claim against his employer’s liability policy, which was issued in Louisiana, for the damage caused by the forklift as an uninsured motor vehicle. The policy did not include any mention of UM coverage. Because the employer never executed an express waiver of UM coverage, the plaintiff asserted that UM coverage was implied under the Louisiana UM statute. The defendant insurer argued that statutory UM coverage was not available to the plaintiff because the accident occurred in North Carolina, not Louisiana, citing La. Stat. Ann. § 22:1295(1)(a)(iii) for support. After reviewing the applicable Louisiana jurisprudence, law, and legislative history, the U.S. Fifth Circuit held that statutory UM coverage applies to collisions that occur outside of Louisiana under a Louisiana-issued policy.

In coming to this conclusion, the Fifth Circuit recognized that the Louisiana legislature enacted Section 1295(1)(a)(iii) specifically to overrule the holding of the Louisiana Supreme Court in Snider v. Murray, 461 So. 2d 1051 (La. 1985), that the express terms of the Louisiana UM statute only pertained to policies issued in Louisiana. In Snider, the Supreme Court held that the Louisiana UM statute did not apply to a Texas policy covering a Texas vehicle even after the insured moved to Louisiana, became Louisiana resident, and died in a Louisiana collision. Finding the holding of Snider contrary to its intent, the Louisiana legislature enacted Section 1295(1)(a)(iii) to imply UM coverage for collisions that occur in Louisiana involving Louisiana residents covered by a foreign insurance policy. The Fifth Circuit also examined Louisiana jurisprudence that recognized Section 1295(1)(a)(iii) as an expansion of Louisiana’s UM law to apply “to foreign insurance policies in multistate cases when the accident occurs in Louisiana and involves Louisiana residents.” Id. (quoting Champagne v. Ward, 2003-3211 (La. 1/19/05), 893 So. 2d 773).

Consequently, the Fifth Circuit held that Section 1295(1)(a)(iii) was legislatively intended to expand “the reach of Louisiana statutory UM coverage to out-of-state policies when the accident occurs in Louisiana and involves a Louisiana resident. It does not address Louisiana-issued policies, however, as they are already subject to [the Louisiana UM statute].” Id. at 609. Based on the Fifth Circuit’s holding in Boyett, when Louisiana law applies to an out-of-state collision, then UM coverage is implied, absent a valid rejection of such coverage.

***Originally published in the November 2018 issue of Louisiana Association for Justice’s monthly publication, Louisiana Advocates.

Joint Tortfeasors and Prescription under the Medical Malpractice Act

In his latest article for the August/September issue of the Louisiana Bar Journal, Robert David expounded upon a decision from the Louisiana Court of Appeal for the Fourth Circuit ruling on prescription against jointly and solidarily liable tortfeasors under the Louisiana Medical Malpractice Act.

In the case of In re Benoit, 2017-0802 (La. App. 4 Cir. 3/11/18), 244 So. 3d 44, the plaintiff timely filed a request for review with the Division of Administration for injuries she sustained in 2013 as a result of medical malpractice. The plaintiff sought to amend her request by adding two additional defendants on February 9, 2017. The newly-added defendants argued that the plaintiff’s claims against them had prescribed because the three-year prescriptive period under the Medical Malpractice Act had passed. The plaintiff maintained that the ongoing medical review panel proceeding had suspended prescription against all joint and solidary tortfeasors.

To find out whether the Fourth Circuit dismissed the plaintiff’s claims, read more of Mr. David’s article in Recent Developments under the Professional Liability section of the Louisiana Bar Journal.

Doctor Has No Patience for Patient’s Medical Malpractice Claim

In an article for the June/July 2018 issue of the Louisiana Bar Journal, Robert David discussed a case from the Louisiana First Circuit Court of Appeal that ruled on a doctor’s claims of malicious prosecution and defamation.

In Jeansonne v. Bonano, 2017-0828 (La. App. 1 Cir. 1/23/18), 241 So. 3d 1027, a patient’s husband filed a medical malpractice claim against the doctor whose treatment resulted in his wife’s untimely death. After the medical review panel rendered an opinion in favor of the doctor, the doctor filed claims of malicious prosecution and defamation against the husband. The husband responded with exceptions of no cause of action and prescription.

Read more about how the First Circuit ruled here.

How Late Is Too Late? Paying Filing Fees Under the Medical Malpractice Act

Robert David wrote an article for the April/May 2018 issue of the Louisiana Bar Journal, discussing the meaning of “to pay” a filing fee within the Medical Malpractice Act.

In the case of In re Medical Review Panel Proceedings of Glover, 17-201 (La. App. 5 Cir. 10/25/17), 229 So. 3d 655, the Louisiana Fifth Circuit Court of Appeal was tasked with determining the meaning of “to pay” in regard to filing fees under the Medical Malpractice Act. On the one hand, the plaintiff asserted that her medical malpractice claim was timely filed because she mailed her filing fee within the 45 days allowed by the Act. However, the defendants argued that, because the plaintiff’s filing fee was not received until after the 45-day period had elapsed, the plaintiff’s claim should be dismissed.

Read more of Mr. David’s article in the Recent Developments section to find out if the Fifth Circuit dismissed the plaintiff’s claim.

Falls and Brawls: What Qualifies as “Health Care” Under the Medical Malpractice Act?

Robert David recently wrote an article for the Louisiana Bar Journal, discussing two cases from the Louisiana Second Circuit Court of Appeal that further defined what qualifies as “health care” under the Medical Malpractice Act (MMA).

After being diagnosed with severe dementia weeks earlier, the patient in In re: Med. Review Panel Proceeding of Lyons, 51750 (La. App. 2 Cir. 11/15/17), __ So. 3d __, 2017 WL 5473698, was found wandering around the parking lot of the assisted-living facility where she resided. Later that day, the patient was discovered unconscious beneath an open third-story window. The Second Circuit held that the facility failed to provide adequate health care as contemplated by the MMA to the patient when she was not properly supervised to secure her safety.

In Evans v. Heritage Manor Stratmore Nursing & Rehab. Ctr., L.L.C., 51,751 (La. App. 2 Cir. 9/27/17), __ So. 3d __, 2017 WL 4273693, a patient was admitted to Heritage after suffering a severe stroke with the specific orders to prevent bed sores. Two months later, a nursing assistant was attempting to change the patient’s diaper and undershirt when he resisted and struck the nursing assistant. Out of reflex, the nursing assistant responded by hitting the patient with her “fist and long acrylic fingernails.” The Second Circuit held that the patient’s injuries occurred during the course of his health care, as diaper changes were necessary to prevent the development of bed sores.

Read more of Mr. David’s article, Health Care Provider Claim Non-Qualified HCP Status, in the Recent Developments Section of the Louisiana Bar Journal at pages 348-49.

Are hospitals hiding ‘superbug’ outbreaks from the public?

Reuters Investigates recently published a multi-part exposé on antibiotic-resistant bacteria, or “superbugs” linked to excessive use of antibiotics. Noting that there is no national database of outbreaks, the reporters filed public records requests in every state to determine how outbreaks of potentially deadly pathogens are being handled. The results were not very promising.

For one thing, only 29 states provided any information at all. The others claimed to have had no outbreaks or to be prohibited by law from sharing the information. The reporters sent additional information requests and drew from academic literature to fill in the picture, and they ended up with one of the most comprehensive counts of superbug outbreaks ever created, albeit one lacking some very desirable information. For example, it wasn’t possible to determine how many people have been sickened or killed by drug-resistant bacteria.

The series is well worth reading, and it is far too detailed to summarize effectively here. One important take-away is that no clear definition of the word “outbreak” exists. So, although most states require outbreaks to be reported, the question of whether an outbreak is occurring is left to the judgment of individual doctors and nurses.

C. difficile kills 8 at nursing home, staff not sure it’s an outbreak

Reuters cites as an example one case in another state in which healthcare facilities are required to report suspected outbreaks within 24 hours. In that case, a nursing home with 86 residents started seeing patients with symptoms of C. difficile, a highly contagious, often-deadly superbug that is relatively common at healthcare facilities.

C. difficile is common enough that it should be easy to spot. The symptoms of the infection include abdominal cramps, violent diarrhea and fever.

Between January and the end of February, 2014, six residents had the symptoms, and C. difficile was confirmed.

When an employee contacted the health department, however, they specifically stated there was no outbreak. The employee was only seeking advice, apparently, on how to treat “a few cases of C. difficile.” Even when the health department followed up, staff at the nursing home denied there was an outbreak. Ultimately, eight people died among 15 infected — a fact that only came to light in the Reuters report.

Unfortunately, many healthcare providers are in the habit of withholding information when they’re not required to release it. While some honest folks may be protecting patient privacy, it’s likely that others play their cards close to the vest in order to avoid malpractice claims.

Every year in the U.S., however, hundreds of thousands of people become infected with C. difficile and other antibiotic-resistant pathogens. Tens of thousands die. We need better information if we’re going to fight outbreaks effectively.