Officers Violate First and Fourth Amendment Rights of Anti-Abortion Protestor and Are Not Entitled to Qualified Immunity

Jonathan Davidson stood in a green space between the parking lot of a commercial strip center which included a Planned Parenthood clinic and U.S. Highway 59 in Stafford, Texas and held a sign that said “Pray to End Abortion”. Employees of the Planned Parenthood clinic called the Stafford Police Department who dispatched officers to the scene. Mr. Davidson was initially arrested for “failing to identify” under Tex. Penal Code § 38.02(a), but the Court noted that this statute applies only when the officer “has lawfully arrested the person and requested the information”.

The Court then turned to whether there was probable cause to arrest Davidson for reasons other than failing to identify. The Court considered Tex. Penal Code § 42.03 which makes it unlawful to obstruct the entrance to an abortion clinic. Specifically, the statute makes it unlawful to “render impassable or…render passage unreasonably inconvenient or hazardous” for clinic patients. The Court found that Davidson’s actions could in no way be construed as fitting within this statute. An employee of the clinic admitted that Davidson was not stopping or preventing entry of anyone into the clinic. The Court said that, “…while these actions could be considered inconvenient…they cannot be construed, by an objectively reasonable officer…as rendering entry to the clinic impassable or unreasonably inconvenient as required under § 42.03”.

As such, the Court found that there was no probable cause for the arrest and that it violated both the First and Fourth Amendments and that every reasonable officer would have understood that they were violating Davidson’s Constitutional rights. The officers were thus denied qualified immunity.

Davidson v. City of Stafford, Texas

Mark E. Hanna
mhanna@mblb.com

Louisiana Third Circuit Requires Oil & Gas Operators to Restore Contaminated Property

A company filed suit against three oil and gas operators for causing environmental damage to 12 acres of its 199 acre tract. The jury found that one of the defendants was 100% at fault for the environmental damage and thus was solely responsible for the subsequent remediation.

La. Rev. Statute 30:29 (commonly known as Act 312), created a procedure to resolve claims for environmental damage arising from oilfield operations. Notably, the statute provides that when the fact finder determines environmental damage exists and identifies the party or parties who caused the damage, the court shall order those parties “whom the court finds legally responsible for the damage” to develop a remediation plan. The remediation must adhere to applicable statutory standards. The matter then proceeds to the Louisiana Department of Natural Resources to determine the most feasible plan for remediation.

In this instance, the plaintiff appealed the jury’s finding that two of the three oil and gas operators were not responsible for remediation. The Louisiana Court of Appeal for the Third Circuit reversed the jury’s verdict that found one of the oil companies was not in breach of their obligation to restore the property under a 2003 lease. The Third Circuit also reversed the jury verdict that held the second oil company was not in breach of their obligation to restore the property under a 2008 lease. Regarding damages, the plaintiff’s remediation plan amounted to an excess of $75 million. The court remanded the case to the trial court because the record failed to establish with any measure of reasonable certainty the amount of damages required to remediate the property.

Sweet Lake Land and Oil Company, LLC v. Oleum Operating Company, LC.

Juan C. Obregon
jobregon@mblb.com

Louisiana Fourth Circuit Affirms Toxic-Tort Class Action

On July 7, 2009, a tank failure at a chemical facility in St. Charles Parish resulted in the release of a mixture of three chemicals: Ethyl Acrylate (“EA”), Hydroquinone (“HQ”) and Methyl Ether of Hydroquinone (“MEHQ”). Plaintiffs filed a class action lawsuit for releasing a chemical that was a “possible carcinogen and should be considered hazardous at all times in any concentration.” In May 2011, the trial court certified the class, and the Fourth Circuit subsequently affirmed. After discovery was complete, the defendants filed a joint motion to decertify the class. The trial court denied the motion, and the defendants appealed once again to the Fourth Circuit.

The “law of the case” doctrine does not prohibit an appellate court—that has previously reviewed a class certification decision—from reviewing the class certification on a subsequent appeal when the court is presented with new issues or questions as to whether certification was proper. Moreover, neither the trial court’s initial order of certification nor the appellate court’s opinion affirming the original certification bars reconsideration of the propriety of maintaining the class if the fundamental nature of its cause of action changes. In the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not entertain a series of re-arguments on the issues under the guise of a motion to reconsider the class ruling. Determining whether there has been a material change in the facts or circumstances requires comparing pre-certification and post-certification evidence.

In this instance, the defendants argued that their post-certification air dispersion model found zero contamination in some areas within the geographic class zone, and this in turn contradicted the post-certification deposition testimony of plaintiff’s toxicologist who contended that contamination levels were higher than what the air model demonstrated. The Fourth Circuit affirmed the trial court’s decision to deny the motion to decertify the class. The appellate court found that the air dispersion model, which demonstrated zero contamination in some areas, was not grounds for decertification, but rather should be resolved by redefining the class. Furthermore, the model did not contradict plaintiffs’ expert’s testimony that general causation was established—plaintiffs’ expert concluded that releasing EA, HQ, and MEHQ can cause damage consistent with the class definition, even if within the allowable contamination levels. Finally, the court concluded that decertification would unfairly prejudice the plaintiffs in recovering damages in this type of case involving small claims.

Guidry v. Dow Chemical Co.

Juan C. Obregon
jobregon@mblb.com

Things Heat Up At the United States Court of International Trade

Last month, the United States Court of International Trade affirmed what grandmothers and binge watchers have known for years; Snuggies are blankets and not clothes. This cozy factoid seems insignificant until import tariffs are folded into the mix. Nestled in an extremely voluminous and riveting tome titled The Harmonized Tariff Schedule of the United States, are the various rates at which imported items will be taxed. Per the schedule, a blanket is taxed at 8.5 percent, while an item of clothing is subject to a 14.9 percent tariff. Clearly, an inattention to the classification of items could send quite a chill through importers’ pocketbooks.

In the suit, Allstar Marketing Group LLC v. the United States, Snuggie’s manufacturer successfully argued that the Snuggie’s classification as an “other garment, not made of cotton (e.g., graduation or priestly robes)” was incorrect, and that the item was much more akin to a simple blanket. The court agreed with plaintiff’s position and found that “the addition of sleeves is not so substantial so as to transform the Snuggie into something other than a blanket.” An attorney for Allstar Marketing Group, LLC estimated the company had sold approximately $500 Million in Snuggies, and paid almost $16 Million in import tariffs on the Snuggies it had sold. This case and others dealing with the assignment of import tariffs are relevant to all Americans as legislators seek new streams of revenue with which to warm up the economy.

It remains to be seen when or whether the Snuggie savings will make it from the court to the couch.

Jenna S. Ard
jard@mblb.com

Maybe It’s You: First Circuit Affirms Summary Judgment in Premises Liability Case

In August 2011, a two year-old was at Independence Park in Baton Rouge with his grandmother to watch a football game. While the grandmother’s attention was diverted, the two-year-old climbed up the bleachers with a ten-year-old child. The two-year-old fell from the bleachers, landing on his back atop a concrete surface. The child’s parents sued the Recreation Park Commission for the Parish of East Baton Rouge (“BREC”) as the owner and operator of the park, pursuing damages for the two-year-old’s injuries as a result of the fall. The parents alleged that the bleachers were defective and that the bleacher’s caused the child’s injuries. BREC filed a motion for summary judgment on the grounds that there was no credible evidence of any defect and that BREC had no notice of any defect even if one existed. The district court agreed, granting BREC motion and dismissing the case.

On appeal, the Louisiana First Circuit Court of Appeals affirmed the ruling, citing substantial evidence that there was no issue of material fact that a defect existed. BREC had presented an affidavit from its risk manager attesting to the fact that no complaints about the bleachers had ever been lodged. BREC also introduced deposition testimony of its representative, who testified that the bleachers had been at Independence Park since the 1980’s and that they were routinely inspected for safety hazards. Finally, BREC presented the testimony of the grandmother, who admitted that she did not know how the two-year-old child fell. The First Circuit concluded that there was an absence of factual support for essential elements of plaintiffs’ claims and found no error in the district court’s ruling in favor of BREC.

Hasbert v. The Recreation and Park Commission for the Parish of East Baton Rouge

Daniel P. Sullivan
dsullivan@mblb.com

No Ethical Violation But Orleans Parish Judge Ordered to Reimburse

Respondent was elected to serve as an Orleans Parish Criminal District Court Judge in 2003. In January 2012, the Judiciary Commission initiated an investigation into the practice of all Orleans Parish Criminal District Court judges receiving extra insurance benefits paid through the court’s judicial expense fund (“JEF”). The Commission found that from 2006 to 2011, the JEF made payments on numerous primary and supplemental insurance policies covering Respondent, including long-term care policies, life insurance policies, critical illness, accidental death and dismemberment, cancer, heart, and ICU coverages. The supplemental policies included an insurance reimbursement program known as “Exec-U-Care,” which reimbursed beneficiaries for all co-payments and out-of-pocket health expenses. The Commission approved a formal charge against Respondent alleging that participation in these programs and receiving these benefits was a violation of various canons of the Code of Judicial Conduct. The Commission recommended that Respondent be publicly censured, ordered to reimburse the JEF in the amount of $57,359.96, and ordered to reimburse the Commission for $8,150.24 in costs.

On review by the Louisiana Supreme Court, the Court concluded that the Commission failed to prove by clear and convincing evidence that Respondent’s participation in the supplemental insurance programs rose to a level of sanctionable conduct under the Code of Judicial Conduct. The Supreme Court noted that use of JEF funds to purchase long-term health insurance plans was authorized by law. Although La. R.S. 13:691 (the judicial parity statute) did not authorize life insurance policies and the “Exec-U-Care” program, the fact that so many judges had benefited from the program made it “patently unfair” to “demonize” one particular judge. In the end, Respondent was ordered to pay the JEF $10,002.58 in out-of-pocket reimbursements received over the years from the “Exec-U-Care” program.

In Re: Judge Darryl A. Derbigny

Daniel P. Sullivan
dsullivan@mblb.com

Jury Awards $90 Million in Fatal Trucking Collision

A Civil District Court jury for the Parish of Orleans, Louisiana awarded a grand total of $90,751,808.01 in damages for the wrongful death and injuries of seven individuals following a collision between an 18-wheeler and a GMC Yukon on I-10 near LaPlace, Louisiana. The accident occurred shortly after midnight on December 25, 2008. Tammy Westbrook was operating an 18-wheeler on I-10 and rear-ended the GMC Yukon driven by Lewis Knoten and had four passengers. The Yukon was pushed into the rear of a Lincoln LS driven by Alvin Welch who had no passengers. Upon impact, the Yukon caught fire and three of its passengers were killed, while the others sustained injuries.

Although the published decision does not provide a detailed account of the injuries incurred by the plaintiffs, Laila Knoten, one of the Yukon’s passengers that had lost her mother, had to care for an injured father and had injuries of her own following the accident, received the highest award of $44,405,104.62. The next highest award was $37,804,427.02 to another passenger of the Yukon.

Commercial transportation attorneys in New Orleans know all too well what they face when their clients are the cause of tragic incidents. While liability may be adverse, mitigating damages, leaving no stone unturned, pre-trial litigation, and presenting the best defense to a jury are the only ways to avoid absolute runaway juries in a nation of ever-increasing verdicts.

Knoten v. Westbrook

Philip D. Lorio, IV
plorio@mblb.com

Rule 11 Amendments Pass House of Representatives, Move On To Senate Judiciary Committee

The United States House of Representatives recently passed legislation to amend Rule 11 of the Federal Rules of Civil Procedure. The current form of Rule 11 generally provides that an attorney’s signature on a pleading certifies, to the best of the attorney’s knowledge, information, and belief, that the pleading is not intended to harass, delay, or needlessly increase the cost of litigation; that the claims, defenses, and other legal contentions are well-founded; and that factual statements are supported by evidence or likely will be supported through discovery. Violations of this rule may lead to sanctions.

H.R. 720, titled the Lawsuit Abuse Reduction Act of 2017, amends Rule 11 to make sanctions mandatory and removes a 21-day safe harbor provision that the current Rule 11 includes, which preconditions the filing of a Rule 11 motion for sanctions on giving the offending attorney 21 days to withdraw the alleged offensive pleading. The amendments also allow a court to impose additional sanctions, including striking the pleadings, dismissing the suit, non-monetary directives, or penalty payments if warranted for effective deterrence. H.R. 720 passed the House of Representatives on March 10, 2017 and has been referred to the Senate Judiciary Committee for consideration. Rule 11 was amended in 2007 as part of a restyling of the Federal Rules but the amendments made no substantive change to the rule. Prior to 2007, the rule was last amended in 1993.

Trevor M. Cutaiar
tcutaiar@mblb.com

Newly Implemented Training Requirements for CDL Applicants

Effective February 7, 2017, with a compliance date of February 7, 2020, all first time Class A and B Commercial Drivers’ License (“CDL”) applicants, those seeking an upgrade in their CDL classification, and those seeking a hazardous materials, school bus, or passenger endorsement for the first time will have to meet certain training requirements prior to applying for a CDL. Exempt from the required training are veterans, firefighters, and farmers.

The training must be provided by an approved instructor listed in the Federal Motor Carrier Safety Administration’s Training Provider Registry. To be approved, the instructor must have carried a CDL and all necessary endorsements for at least two years prior to providing training. The training will include classroom and “behind the wheel” sessions. One must complete a written assessment and obtain a score of 80% to satisfy the classroom training requirement and must perform at a level satisfactory to an instructor’s discretion to satisfy the driving requirement. States may individually impose more stringent requirements and drivers are permitted to receive training in any state.

Companies will want to implement policies and programs to ensure their drivers are in compliance with the new training requirements by February 7, 2020.

Philip D. Lorio, IV
plorio@mblb.com

United States Fifth Circuit Reaffirms Supremacy of Carmack Amendment

The Carmack Amendment, codified at 49 USC §14706, et seq., imposes a federal liability regime for claims concerning goods damaged or lost during transportation in interstate commerce. In the U.S. Fifth Circuit, it has long been held to preempt state and common law remedies against a carrier, notwithstanding more recent state court opinions. In Heniff Transportation Systems, LLC v. Trimac Transportation Services, Inc., the U.S. Fifth Circuit reaffirmed the preemptive scope of the Carmack Amendment.

Heniff Transportation Systems was to transport chemicals from Texas to Illinois. It hired Trimac Transportation Services to clean its tanker prior to the trip. The cleaning was not done correctly, and the chemicals were contaminated, as were additional chemicals when mixed with the contaminated batch at the terminus. Heniff settled with the receiver for damage caused by the contaminated shipment and then sued Trimac, asserting several state law claims and a federal claim for liability apportionment under the Carmack Amendment. The district court granted partial summary judgment in favor of Trimac on the grounds that Heniff’s state law claims were preempted.

On appeal, the U.S. Fifth Circuit held that the service provided by Trimac, cleaning Heniff’s tanker-trailer so that it could be used to transport chemicals from Texas to Illinois, was a service related to the movement of passengers or property in interstate commerce, which, in turn, made Trimac a carrier subject to the Carmack Amendment. The district court’s ruling was therefore affirmed.

Heniff Transportation Systems, LLC v. Trimac Transportation Services, Inc.

Eric W. Sella
esella@mblb.com