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Owning property can be fulfilling for individuals but, with this sense of accomplishment comes extensive legal responsibilities. Owning non-residential property, in particular, can be stressful, particularly when a landowner is seeking compensation for property damage. In a recent case, the Court of Appeals for the state of Louisiana evaluated potential benefits of landowners suing for property damage. More specifically, the court evaluated whether landowners had a right to sue for damages caused by a party who obtained a mineral lease from prior landowners. The Court of Appeals agreed with the findings of the lower court and held that the plaintiffs could not recover because they were either: not the party who was entitled to compensation or that too much time passed and it was too late to sue.

In 1945, Chevron obtained three mineral leases from the Pasternack family for a 193-acre tract of land located in the Lake St. John Oil and Gas Field in Concordia Parish, Louisiana. Operations on the property were commenced by Chevron in 1945 pursuant to three mineral leases obtained from the previous owners, the Pasternack family. The Pasternack family sold the property in June 1999 and, after several conveyances, the property was owned by the Wagoners when the lawsuit was commenced. Still, the Pasternacks reserved their mineral interests in the land. Eventually, the Wagoners discovered that the subsurface of their property was contaminated with exploration and production waste, particularly through the use of unlined pits. As a result, they filed suit in August 2008, claiming that their property was contaminated by the oil and gas exploration and production activities of Defendants.

Through a complex timeline, Chevron leased and conducted oil and gas operations on the property from 1945 to 1992. Throughout the years, the lease was assigned to several entities including Devon, Merit, LSJ Exploration and Oil & Ale LSJ, Smith Operating and Management Company. Beginning in 2004, McGowan Working Partners leased and operated the shallow oil–producing subsurfaces beneath the property while the deeper subsurfaces were leased and operated by Denbury Onshore after 2004. Numerous exceptions were filed by various Defendants and the trial judge sustained the following exceptions filed or adopted by all Defendants: (A) Vagueness; (B) No Cause of Action for Strict Liability for Nuisance; (C) No Cause of Action for Strict Liability for Garde or Custody; (D) No Cause of Action for Abnormally Dangerous or Ultrahazardous Activity; (E) No Cause of Action for Breach of Contract or Warranty; (F) No Cause of Action for Punitive Damages; (G) No Cause of Action for Unjust Enrichment; and (H) No Cause of Action for Civil Fruits.

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The Court of Appeals of Louisiana, First Circuit, recently defined the way in which the Court would look at implied permission for the use of ones car. Depending on the terms of the auto insurance policy, the policy may provide protection for damages that even extend to the passenger in a vehicle driven by someone who has permission to drive the vehicle. This means that if the passenger died in the car accident, the passenger’s family may be able to collect by filing a petition for damages against the insurance of the actual owner of the car, not just the actual driver at the time of the accident.

In Hartzo v. American National Property and Causualty Insurance Company, the driver of a Ford Taurus crashed into a Toyota Tacoma. The driver and passenger of the Taurus were killed in the accident. The driver of the Taurus was the brother of the owner of the vehicle. The family of the passenger filed a petition for damages against American National Property and Casualty Insurance Company (ANPAC) and another insurance company. The insurance policy through ANPAC had provisions that extended such benefits if the driver of the vehicle had express or implied permission to drive the vehicle.

ANPAC thought that they had a good argument that the driver of the Taurus had no permission to drive the vehicle. The Court of Appeal looked at the facts and the policy that the owner of the vehicle had. The Court found that deciding whether there was express permission would not dispose of the case. The Court spent its time analyzing what factors they would look to in order to find implied permission. The Court stated that “the issue of implied permission involves a balancing of legal and public policy issues and must be inferred from the totality of the facts and the relationships involved.” With this statement the Court seems to be saying that both customary use and relationship can be used to find implied permission. The Court of Appeal later stated that the following factors were indicative of implied permission: (1) At the time of the accident the driver and owner of the vehicle were living in the same household, (2) On the day of the accident, the driver of the vehicle had already driven the vehicle with the knowledge of the owner, (3) In the past, the driver had driven the Taurus on many occasions. Therefore, the Court looked at both the relationship involved (i.e. the fact that driver and owner lived under the same roof) and the custom between the parties (i.e. the fact that the driver had driven the car on many occasions). Thus, ANPAC was liable under the petition of damages.

It is very important to clearly understand your insurance policy. The policy may be confusing and many different, and what may seem insignificant factors, can change the entire outcome of a litigation. It is essential that prior to settling any issues with your insurance company, that you seek the advice of competent legal counsel to help you maneuver through complex insurance policy determinations.

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It was recently announced that the pretrial filings for DePuy ASR hip replacement lawsuits have been consolidated to the Northern District of Ohio. The lawsuits have been assigned to the Honorable David A. Katz for supervision during the early stages of the litigation. Judge Katz is based in Toledo, Ohio, and he will be responsible for overseeing discovery efforts and pretrial motions made by DePuy ASR hip implant litigants.

With over 150 federal lawsuits pending against DePuy, it was necessary to consolidate the DePuy ASR hip replacement pretrial actions to just one judicial district in the interests of simplicity and judicial economy. According to the U.S. Judicial Panel on Multidistrict Litigation, these numerous federal lawsuits all contain common issues of fact and law. Therefore, the pretrial actions only need to be considered in one consolidated court proceeding.

Once the pretrial phases of these lawsuits are completed, the U.S. Judicial Panel on Multidistrict Litigation will transfer the actions back to the federal court districts they originated from for further litigation in the plaintiffs’ respective home districts.
The consolidation of DePuy hip implant pretrial litigation will streamline the exchange of evidence between the multiple plaintiffs and DePuy. Because some commentators predict that thousands of plaintiffs may end up filing suits against DePuy for complications experienced as a result of receiving a defective DePuy ASR hip implant unit, it is critical that redundancies and duplications of evidence and motions are avoided in the earliest phases. Consolidation to the Northern District of Ohio should facilitate this goal.

DePuy, a division of Johnson & Johnson, announced a nationwide recall of its ASR hip implants in August 2010 after a significant number of patients were forced to endure revision surgery to correct complications suffered from defective ASR units, including metallosis and loss of mobility. As many as 12-13% of patients were adversely affected. Experts estimate that billions of dollars in damages are at stake. Consequently, complex litigation and negotiations are expected in order to justly compensate plaintiffs’ claims for the pain and suffering they’ve experienced. And because product liability litigation is only just beginning against DePuy, the recent consolidation action will set the foundation for future litigants and forthcoming litigation.

This blog will continue to keep you posted on legal developments surrounding the DePuy hip implant recall as they materialize.

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New information has come to light suggesting that DePuy may be in the process of conducting destructive testing on hip implants previously inserted into patients that were affected by the company’s defective ASR product line. Soon after DePuy announced its nationwide recall of its ASR XL Acetabular System/Depuy ASR Hip Resurfacing System from the American marketplace in August 2010, the manufacturer began to send letters to hospitals and physicians. These letters requested the hospitals’ assistance in retaining explanted hip implant components, as well as related tissue samples following revision surgery. Notably, the letters contained language indicating DePuy would be sending the extracted hip implants to “third-party retrieval laboratories to receive and analyze explanted components and related tissue samples.” Unfortunately for plaintiffs, such third-party analysis can spoil and/or destroy the hip implant, resulting in lost evidence.

This development is highly problematic for persons who have experienced complications from the defective DePuy hip implant units and who are looking to pursue a legal case against the company. Since a patient’s hip implant unit is the centerpiece of product liability litigation against a manufacturer-defendant such as DePuy, should the unit somehow be destroyed before civil trial by a third party laboratory’s testing, plaintiffs could suffer enormous setbacks to their otherwise valid cases. Without the ability to admit evidence of the defective hip implant into court, plaintiffs are unable to meet their burden of proof necessary to prevail in their civil claims against DePuy.

Because retrieval and possession of an extracted hip implant cannot be performed by DePuy without prior consent by the patient, patients should communicate to their physicians prior to revision surgery that they do not want their DePuy hip implant handed over to DePuy. If a patient believes their physician will be uncooperative in this request, the patient can retain an attorney who will draft a letter to their physician explaining the patient’s instructions not to hand over the explanted hip implant to DePuy. Whether or not a patient uses an attorney to revoke such consent, it should be noted that it is always illegal for doctors to give DePuy a patient’s extracted hip implant if the patient has effectively communicated otherwise.

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In October, this blog published a post discussing the potential interplay between the preemption rules of In re: Medtronic, Inc., and the forthcoming DePuy hip implant litigation. If one recalls, In re: Medtronic involved defective heart defibrillators that shocked implant recipients. When patients affected by the shocks attempted to file lawsuits to recover for their injuries against Medtronic, the federal Eighth Circuit Court of Appeals ruled that the plaintiffs’ state law claims were preempted by the FDA, and, therefore, plaintiffs could not proceed with their lawsuits. This blog then surmised in its original posting on the subject that recipients of recalled DePuy ASR hip implants might face similar hurdles in their own claims against DePuy. Since that time, however, further legal analysis by attorneys have discovered that the In re: Medtronic, Inc. ruling may in fact have no effect on recipients of defective DePuy hip implants after all.

The reason why DePuy plaintiffs may fair better than their Medtronic counterparts has to do with the different approval processes conducted by the Food and Drug Administration (FDA). While both the heart defibrillators manufactured by Medtronic and the ASR hip implants manufactured by DePuy were considered by the FDA to be Class III medical devices, each was subjected to a differing approval standard. In the case of the heart defibrillators, those medical products were subjected to a strict review standard and were scrutinized carefully for years by the FDA before given final approval. On the other hand, the DePuy ASR hip implants were considered by the FDA to be “substantially equivalent to legally market predicate devices marketed in interstate commerce,” and were accordingly not subjected to the same strict review standard.

From a legal perspective, the FDA testing standard a medical product is subjected to is very important. For example, when the FDA has highly scrutinized a manufacturer’s product and subsequently approves it for marketing, courts are reluctant to hold that manufacturer responsible for defects that are later discovered by consumers. The rationale behind this is that the FDA has been granted the power to set minimum safety standards for medical products by Congress. These minimum safety standards cannot be contradicted by higher safety standards a state legislature or court might promulgate. Consequently, courts believe it is unjust for the FDA to declare a product to be in compliance of FDA regulations when, simultaneously, the same product might be in violation of a more demanding state standard. In order to maintain a fluid marketplace, courts prefer manufacturers comply with one, uniform federal safety standard, rather than fifty opposing state standards.

Devices that are held to be “substantially equivalent,” on the other hand, are not scrutinized or tightly investigated by the FDA. Instead, products approved under the “substantially equivalent” standard are simply given administrative approval for marketing without any assurances by the FDA that the device complies with FDA regulations. The FDA does not set a minimum safety standard when it declares a medical device to be “substantially equivalent.” This means that if the device is discovered to be defective later on by consumers, those consumers can sue under their state tort laws without running into any of the preemption issues that the strict testing standard presents, as explained in the previous paragraph.
Because the DePuy ASR hip implants were given “substantially equivalent” approval, it is likely that the In re: Medtronic preemption rulings will not bar patients from suing DePuy for injuries caused by the defective hip implants. This is encouraging news for patients who wish to retain an attorney in order to recover for harm they have experienced.

As additional information arises pertaining to the potential legal difficulties plaintiffs might face when pursuing a claim against DePuy, Berniard Law Firm will continue to keep abreast of such developments.

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In August 2010, Johnson & Johnson subsidiary, DePuy, announced a recall of its ASR XL Acetabular System and ASR Hip Resurfacing System, two hip replacement components used in total hip replacement surgery. In the months that have followed, this blog has told readers about metallosis, one of the possible symptoms resulting from implantation of the DePuy ASR hip units. Metallosis is an allergic reaction by the body to metal ions contained in hip implant metal components such as High Carbon Content Steel, a cobalt-chromium alloy. But metallosis is not the only symptom of the defective DePuy hip implants.

Among the additional complications from defective hip implants are loose cups and pseduotumors, as well as fractures and friction transfer problems around the pelvis area. These symptoms can cause inflammation and loss of mobility, including loss of the ability to walk. Needless to say, these symptoms result in pain and frustration for many patients.

Several medical experts have stated that the DePuy hip implants were “too shallow” for implantation to begin with. They say the lack of depth within the hip implant units are one of the primary causes of patients’ complications. These experts have suggested that even the most skilled of doctors are likely unable to implant the flawed hip component in such a way to avoid complications. This means that the blame for DePuy rests primarily with its manufacturing process and not with surgeons. Predictably, DePuy denies that its ASR hip implants are too shallow and has attempted to shift responsibility to physicians.

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Although not as likely to occur as metallosis or cobalt poisoning, pseudotumors and cancer remain possible symptoms for patients who have received a DePuy ASR Hip Implant since 2003. In August 2010, Depuy, a division of Johnson & Johnson, recalled hundreds of thousands of its ASR hip implant components from the American marketplace and began notifying physicians of the potential failure rates of these units. Thousands of patients have been affected by the recall, with billions of dollars in damages are at stake.

Because the hip implant cups’ defective design results in the unit oftentimes being too shallow for safe function, bits of metallic debris can generate when patients stand up and place natural forces on the hip implant joints. As a result of this metallic debris, patients’ bodies can begin to experience a wide array of adverse reactions. One such reaction is pseudotumors. Pseudotumors are a soft mass of tissue that form in response to a toxic reaction to the excess metal debris and can be a fluid-filled sac or a solid mass. These unfortunate tumors have been specifically found to oftentimes emerge around the hip implant site. Studies show that pseudotumors cannot be eradicated until all metal debris is purged from the body.

Another adverse reaction the body can have to excess metal debris is the onset of cancer. While this is an unsettling and, at this point, theoretical development, some medical researchers speculate that there may be a scientifically valid link between the chromium contained in DePuy hip implants and cancer. According to a report published by the EPA, chromium is a cancer causing agent. Depending on the class of chromium a human is exposed to, symptoms can range from the severe (hemorrhage and vomiting in the case of Chromium IV), to the relatively mild (moderate toxicity from oral exposure to chromium III). While the chromium contained in DePuy ASR hip components were originally designed to shield the chromium parts from the rest of the body, the excess metal debris generated by latent defects have increased chromium exposure in some patients. Although it is way too early to tell whether cancer is a legitimate consequence of DePuy’s defective ASR hip components, it is certainly a consequence that requires further looking into.

The purpose of alerting recipients to the potentialities of pseudotumors and increased cancer risks is not to instill fear into patients. Rather, it is to illustrate the fact that affected patients may face a multitude of complications that aren’t necessarily readily apparent today. For this reason , it is essential that patients do not sign any waivers or consent to any settlements with DePuy until an attorney has had the opportunity to calculate lingering risks that may still exist ten to twenty years after the recalled DePuy hip implant has been replaced by a functional and safe one.

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Previously on this blog, we have explored several cases that profiled the often contentious role that insurance companies play in auto accident litigation. In the interest of seeing that consumers get the benefits of the policies they pay for and to promote a speedy resolution for third parties who have legitimate claims, the Louisiana legislature enacted a law that requires insurers to pay claims within 30 days of being notified with a satisfactory proof of loss by the insured. La. R.S. 22:1892. An insurer’s failure to do so, if “arbitrary, capricious, or without probable cause,” can mean a penalty for the insurer of up to 50 percent of the claim amount, in addition to attorneys’ fees and costs. This requirement was at the center of the recently decided case, Krygier v. Vidrine.

On October 11, 2006, Kenneth Krygier was a passenger in a rented Chevy Cobalt being driven by his co-worker, Billy Toon. Krygier and Toon were on the way to their employer’s office in Covington when their vehicle was rear-ended by a Ford Explorer operated by Karen Vidrine and insured by Liberty Mutual. Toon also carried an insurance policy with Progressive that provided uninsured/underinsured motorist (“UM”) coverage to all occupants of an “insured” vehicle. Vidrine’s policy with Liberty Mutual had a limit of only $30,000 per incident, so when Krygier filed suit against Vidrine for the injuries he suffered in the crash, he also named Progressive and his employer as defendants. Progressive first denied responsibility for UM coverage because it alleged the rented Chevy wasn’t an “insured vehicle” under Toon’s policy, Krygier was not a “covered person” under the policy, and Vidrine was not underinsured. The parties filed cross-motions for summary judgment on these questions, and in December, 2007, the trial court determined that coverage under Progressive’s policy extended to Toon’s rental car and to Krygier as a guest passenger.

As part of the discovery process, Liberty Mutual served on all parties a copy of the policy with the $30,000 limit it had issued to Vidrine covering her Explorer. Nevertheless, Progressive took the position that it did not have sufficient documentation establishing that Vidrine was underinsured at the time of the accident. In January of 2008, Krygier gave a deposition during which he testified about his injuries, his ongoing medical treatments, and his pain and suffering. Krygier also provided documentation regarding his employment, lost earnings, and medical treatment in response to Progressive’s discovery requests. In November, 2008, Krygier filed an amended petition for damages in which he sought penalties, attorneys’ fees, and costs based on Progressive’s failure to tender its policy limits upon receipt of satisfactory proofs of loss. Krygier received only $15,000 from Vidrine’s Liberty Mutual policy (the balance of which was paid to Toon). Krygier alleged that, based on this result and the outcome of prior proceedings in the matter, Progressive was well aware that Vidrine did not have sufficient insurance to cover the damages he sustained in the accident. Progressive’s failure to pay, Krygier argued, amounted to a violation of the statute requiring a timely tender of payment. Accordingly, Krygier asked for $50,000 in penalties (half the policy’s $100,000 limit), together with reasonable costs and attorneys’ fees. The trial court granted Krygier’s motion, finding that Progressive was “arbitrary and capricious in failing to promptly tender policy limits,” and awarded penalties in the amount of $50,000 to Krygier. The judgment further awarded Krygier “the remaining interest owed on the policy limits, plus attorneys’ fees and costs.” Progressive appealed to an unsympathetic First Circuit. The court stated, “we find reasonable persons could reach only one conclusion, i.e., that Progressive acted arbitrarily, capriciously, or without probable cause in not tendering its policy limits within thirty days of” first learning of Krygier’s legitimate claim. The court affirmed the $50,000 penalty awarded by the trial court.

In this case, Krygier’s misfortune was only compounded by Progressive’s efforts to protract the litigation and delay payment. In situations like this, it is especially important for an accident victim to have an experienced attorney on his side to ensure he gets the recovery he deserves.

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Many employees routinely use their own automobiles in the course of their employment. Whether running an occasional errand on behalf of the company, or using a car to make door-to-door sales calls, employees who drive their vehicles for the benefit of their employers may wonder how liability is affected if they are involved in an accident. Generally speaking, an employer is responsible for the negligence of its employees who operate motor vehicles on behalf of the company. For this reason, employers maintain liability insurance policies that cover them for losses that may arise from auto accidents caused by employees. Like other policies, these liability policies can be subject to specific limitations to coverage as arranged between the employer and the insurer. One example where the language of the policy exceptions proved determinative is the 2010 case of Anderson v. State Farm Fire & Casualty Insurance Co.

Donald Anderson worked for Labor Finders, a staffing agency with offices throughout the state of Louisiana. Anderson was killed when an oncoming motorist, Gordon Pugh, Jr., crossed the center line and struck his car as Anderson was driving to an appointment for work. After her father’s death, Monica Anderson filed a wrongful death action which named Pugh, Pugh’s insurer (State Farm Fire & Casualty Insurance Company), and National Union Fire Insurance Company as defendants. National Union was included because the company had issued a liability policy to Labor Finders which was in effect at the time of the accident. This policy, which applied to employees of Labor Finders, contained an endorsement for uninsured/underinsured motorist (UM) coverage. National Union answered, denying that Anderson was covered under the policy. Monica settled with Pugh and State Farm, after which National Union filed a motion for summary judgment. The trial court concluded that under the clear and unambiguous terms of the policy, Donald Anderson was not covered.

On appeal, the First Circuit conducted its own detailed analysis of the policy language. After noting that “insurers have the right to limit coverage in any manner desired, so long as the limitations are clearly and unambiguously set forth in the contract and are not in conflict with statutory provisions or public policy,” Campbell v. Markel American Insurance Co., the court found that an exclusion within the National Union policy which denied coverage to any employee who was injured in the course of operating an automobile applied to Anderson’s death. The court also concluded that Anderson was not covered under the policy’s UM endorsement because it extended coverage only to a “partner or officer” of Labor Finders, of which he was neither. Accordingly, the court concluded that the trial judge correctly found that Anderson was not eligible for liability coverage under the National Union policy, and affirmed the decision.

The Anderson case provides a warning to employees that they should not assume they will necessarily be covered by their employer’s insurance policy if they are involved in an accident–particularly, as here, one where they are not at-fault. We can presume, though it is not stated in the court’s discussion, that Monica Anderson settled with State Farm (the at-fault driver’s insurer) for a sum that was within the policy limits. The suit against National Union was, perhaps, an understandable attempt to obtain more funds beyond those she received in the State Farm settlement. While Monica’s situation is tragically sympathetic, the court made it clear that an issuer can use the language of a policy to limit coverage substantially, even to the detrmiment of an “innocent” party.

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Of the many symptoms stemming from the recalled DePuy ASR Hip Implants, perhaps metallosis is the most alarming. Metallosis is a form of metal poisoning caused when metal parts of the implant rub up against each other, generating large quantities of microscopic metallic debris that is absorbed by surrounding bodily tissue and the blood stream. The metal parts can rub together as a result of fracture, loosening, or dislocation of the hip implant component parts. Under normal operating conditions, hip implants should not generate noticeable amounts of metallic debris.

When the microscopic metallic debris enters the bloodstream, the body’s immune system recognizes the metallic debris as foreign agents, much like a bacteria or virus. This is a form of blood poisoning. As a consequence, the body creates an immune response that can include swelling, inflammation, and internal scarring. Further, reactions from the white blood cells generated by the immune system in order to stave off the invasion of the metallic debris can cause the loss of muscle, nerve, and bone tissue around the hip implant location, resulting in the inability to walk, as well as the onset of severe pain, in some individuals. Tumors have even been observed forming around the areas of the body where large quantities of metallic debris have developed in those with metallosis.

In its Recall Reference Guide, DePuy notes that recipients of the defective hip implants should receive a number of tests to detect for metallosis, including blood tests for elevated cobalt and chromium levels by way of a Mars MRI or ultrasound. It could take at least a couple of these tests to determine whether a patient’s blood has toxic levels of chromium or cobalt, and the results of these tests aren’t always immediately available. In fact, the DePuy reference guide suggests follow-up tests for some individuals as long as three months after the initial MRI to see if the metal debris levels have increased or subsided. If a final test shows a positive toxicity of metal in the patient’s blood, then the only remedial medical action available is a revision surgery to extract the flawed hip implant and replace it with a functional unit. Revision surgeries are not only costly, but they can bring with it risks and dangers inherent in any major medical operation.

Due to the serious nature of metallosis, and the corresponding revision surgeries associated with the recalled DePuy ASR hip implants, it is likely DePuy will be legally responsible for billions of dollars worth of damages. Unquestionably, DePuy’s legal and scientific teams understand the dire consequences the recalled hip implants have created and will do everything possible to lessen the amount it owes to victims. With the potential for crippling ailments such as metallosis listed above, it is critical hip implant recipients consult an attorney before making a final settlement with DePuy.

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