Recently in Injury & Tort Law Category

In 2008, the City of San Antonio demolished RBIII’s building. That building was arguably dilapidated, but the City didn’t actually notify RBIII before razing the structure.

In the legal world, you’ll recall that we characterize such behavior as “not cool.”

RBIII sued San Antonio, asserting a variety of state and federal claims, but the district court granted summary judgment for the city on all but two claims. (If you guessed that the surviving claims were a Fourteenth Amendment due process claim and a Fourth Amendment unreasonable search and seizure claim, give yourself a gold star.) The remaining claims went to a jury, and the jury returned a verdict in favor of RBIII.

San Antonio, unsatisfied with tearing down RBIII’s building and mostly-prevailing at summary judgment, appealed.

According to the Supreme Court, brand name drug manufacturers can be sued for failure to warn, even though the federal government — through the Food and Drug Administration — gives approval to put drugs on the market. FDA approval is not a defense.

The Supreme Court reached the opposite concluding regarding generic drugs: Generic drug manufacturers cannot be sued on a failure to warn theory.

Those conflicting rulings have forced plaintiffs with claims against generic drug manufacturers to think outside the box to keep their cases alive. Unfortunately, as the Fifth Circuit Court of Appeals noted this week, those attempts are frequently unsuccessful.

Last year, the Fifth Circuit Court of Appeals ruled that displaced hurricane evacuees may not sue the Federal Emergency Management Agency (FEMA) for formaldehyde exposure under the Federal Tort Claims Act (FTCA) because the plaintiffs lacked subject matter jurisdiction.

That case only involved Mississippi plaintiffs, but the outcome doesn’t change when the plaintiffs hail from Louisiana.

The Individuals with Disabilities Education Act (IDEA) mandates that public educational institutions identify and effectively educate disabled children, or pay for their education elsewhere if they require specialized services that the public institution cannot provide. Schools must identify children in need of special education services, and provide a free and appropriate public education (FAPE) to disabled students. Parents can pursue administrative remedies, and eventually a lawsuit, to compel a school to comply.

Today, we're discussing a Fifth Circuit opinion addressing an attorneys' fees dispute stemming from an IDEA enforcement action.

Is a county jail inmate entitled to workers’ compensation benefits for injuries sustained while participating in a work detail program?

Timmy Vuncannon, an inmate, was part of a Tippah County work program under the sheriff’s supervision. He earned $10 per day for his services, which was credited “toward any and all charged of F.T.A./cash bonds owed to the county.” Vuncannon was seriously injured in a forklift accident while helping law enforcement officials as part of the work program.

While Vuncannon’s state and federal claims stemming from the accident were dismissed, Shelby County Health Care Corporation, which owns the hospital where Vuncannon was treated, wants to get paid for Vuncannon’s medical bills, which are more than $640,000.

Associated Gas & Oil Company, Limited bought two self-elevating liftboats -- Nicole and Kaitlyn -- from Offshore Marine Inc. (OMI) pursuant to an asset purchase agreement. Under the agreement, OMI agreed to install additional living quarters and accessories on the two vessels. OMI used its sister corporation, Tram Shipyards, Inc. to purchase the materials and complete the additional work.

In the course of installing the additional living quarters on the Nicole, Tram cut, extended, and re-welded the crane boom cradle stanchion of the hydraulic pedestal crane. Transporting the liftboats from Louisiana to Nigeria for an Associated contract proved problematic. The flotilla encountered rough seas, and the stanchion snapped at the site of the weld, causing the crane boom on the Nicole to swing wildly and crash into the additional living quarters.

There was damage. The boats had to divert from their course before ultimately returning to Louisiana for repairs, and they didn't make it to Nigeria for the contract. Associated suffered "a crippling loss of profits." So what's the proper path to remedy? Contract or tort?

The question of whether the Mississippi statutory cap on noneconomic damages violates the Mississippi separation of powers clause sounds like a question for a Mississippi court. But this week, it was the Fifth Circuit Court of Appeals that decided that the Mississippi tort reform statute didn't conflict with the state's constitution.

How does that work, you wonder? We'll explain.

A court’s patience will only take you so far in the wild world of federal appeals. When a plaintiff fails to perfect proper service or respond to a motion to dismiss, that patience will eventually wear thin.

Such was the case last week, when the Fifth Circuit Court of Appeals ruled that a district court had not abused its discretion in dismissing a complaint after the plaintiff squandered multiple opportunities to perfect service of process. The good news for lawyers? If a pro se plaintiff keeps trying the court's patience, the case will eventually be dismissed.

It looks like the casket-making monks will have to win their case against the Louisiana State Board of Embalmers and Funeral Directors on constitutional grounds.

A tipster alerted us yesterday to an interesting tidbit from the Bayou State's top court: In January, the court declined to address a certified question from the Fifth Circuit Court of Appeals in the matter.

If you're new to this monk-casket judicial battle, we'll bring you up to speed on the controversy at hand, and what the certified question denial means.

Last week, the top BP supervisor on the Deepwater Horizon rig lost his appeal to avoid testifying in the upcoming civil case about the 2010 explosion that devastated the Gulf of Mexico, New Orleans' WWL-TV reports.

The Fifth Circuit Court of Appeals ruled Jan. 3 that Donald Vidrine must comply with a district court order to submit to a medical examination and provide his medical records and reports to a court-appointed doctor.