The Medicare laws have undergone significant changes. With the relatively new reporting regulations and the focus on compliance, litigators must implement new procedures in their practice. Many companies are establishing guidelines to obtain information needed to comply with the Medicare Secondary Payer Act (“MSP”) and the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”).

The Centers for Medicare & Medicaid Services (“CMS”) is responsible for oversight of the Medicare program. While the CMS has published information to guide the parties, there is room for interpretation of many of the guidelines and, in some instances, there are no guidelines to assist the parties.

This white paper is designed to provide parties involved in toxic tort liability suits with knowledge of the key provisions of the MSP and the MMSEA. The white paper focuses on the practical aspects of obtaining information needed for compliance, common misconceptions and risk avoidance. The document also discusses the significance of cases involving incidents that pre-date the December 5, 1980 MSP, practical aspects of determining when the December 5, 1980 policy may be applied, and recent guidance from the CMS on that issue.

Download the white paper.

Almost everyone knows insurance policies provide a defense and indemnity for insureds, if the terms and conditions of the insurance policy are met. Insureds include named insureds, other insureds (as defined by the policy) or additional insureds as provided by endorsement. However, insurance policies may also provide payment and defense to others who are not insureds under the policies.

Most liability policies provide coverage to the insureds for liability when the insureds have contractually agreed to provide indemnity and/or defense to or party to a contract. A typical example of contractual indemnity coverage can be found in a construction contract to supply labor and materials related to electrical wiring in the construction of a home, office, pipeline or oil rig.
 

The electrical subcontractor’s insurance policy will typically contain contractual indemnity coverage (“insured contract”) whereby the insurer agrees to indemnify the electrical subcontractor for claims related to his contractual liability to the owner and/or the general contractor if the electrician’s work causes damage on the construction project.

The coverage provided by contractual indemnity may be limited or quite broad depending on the language of the policy’s contractual indemnification coverage. It is interesting to note that many policies issued before the year 2000 may contain exceptionally broad coverage that may provide indemnity and/or defense for actions of an insured who has agreed to indemnify a party that took place many years ago. Very old policies or policy information can be found using insurance archeologist. This may be particularly important when a construction defect or some type of pollution has been caused by an insured who agreed to indemnify owners or general contractors many years ago. Contractual indemnity coverage has the advantage in some cases of avoiding disputes between various insurers over the ranking of insurance policies, i.e. when multiple insurers provide coverage and which insurer must defend or pay first.

Contractual indemnity coverage can exist even after an insured files bankruptcy. Contractual indemnity coverage is often provided in the body of the policy on a blanket basis, i.e. there is no need for a specific amendment or endorsement to an insurance policy to provide this type of coverage contrary to additional insured coverage, which often requires specific amendments or endorsements.

Contractual indemnitees and indemnitors should consider contractual indemnity as a mechanism to obtain defense and/or indemnity in addition to, or in the absence of, additional insured coverage.
 

The Louisiana Department of Health and Hospitals (“DHH”) has settled a class action lawsuit filed on behalf of Medicaid beneficiaries receiving Long Term Personal Care Services (“LT-PCS”). The class action is pending in the U.S. District Court, Middle District of Louisiana. The presiding federal judge has issued preliminary approval of the settlement. A final approval hearing is scheduled for February 17, 2012.

The class action alleged that the reduction of maximum weekly service hours available to Medicaid beneficiaries eligible for LT-PCS services violated the Americans with Disabilities Act and sought declaratory and injunctive relief to prohibit the implementation of the reduction to service hours. The class action alleged that the LT-PCS recipients were at risk of being forced to enter a nursing home as a result of the cuts to service hours, which is exactly what the LT-PCS program was designed to prevent.

The court defined the class of plaintiffs as follows:

“Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC [Adult Day Health Care] waiver) other means of receiving personal care services.”

While the class action was pending, DHH allowed LT-PCS recipients who were receiving the maximum number of weekly service hours to request expedited access to the Community Choice Waiver Program. The Community Choice Waiver Program provides a variety of services, including personal care services, to assist beneficiaries to avoid institutional placement and to remain in their homes and communities.

As a part of the settlement, DHH has agreed to extend this option to additional class members currently approved for less than the maximum 32 hours per week of services, but who were receiving more than 32 hours per week at the time the reduction in hours became effective. DHH will offer Community Choice Waiver Program slots to class members who apply for the program, if the class members can show that, without the additional services, they would be at serious risk for institutional placement. DHH will also request approval from the federal government for an additional 200 Community Choice waiver slots. Any slots not filled by class members will be added to the pool of slots made available to those who are on the waiting list for waiver services.
 

Click here to download  a copy of the digest.  For a hard copy, please email client_services@keanmiller.com

* The digest is a compilation of certain class action decisions and it should not be construed as a complete reflection of the holdings of the cases.

Following a class action or mass joiner settlement certain funds are often unable to be distributed to individual class members.  Either class members do not come forward to file the necessary proof of claim to qualify for an allocation and distribution, the allowed claims do not equal the available settlement funds, reserves or allocations for class costs and expenses are not exhausted, distributions of monies to individual class members have been found impracticable because the amounts owing to each individual plaintiff are exceedingly small and/or calculation of the amount due each individual would be excessively difficult and costly.  In such situations, many Louisiana state and federal courts have employed the “Cy Pres doctrine,” an equitable remedy intended to put the residual funds to a worthy purpose in accordance with their availability.

Read the entire article from the December 2010/January 2011 edition of the Louisiana Bar Journal.

Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.

In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.
 

In Green v. Fluor Corp., 2009 WL 1668376 (M.D. La. June 11, 2009), a case in the Middle District of Louisiana, the defendant sought access to the plaintiff’s phone and e-mail system to obtain the original version of a photograph the plaintiff had given to the defendant as part of discovery. The defendant claimed the produced photograph taken from a phone was of low quality and wanted access to the plaintiff’s phone and e-mail to obtain a clearer picture. The Court denied the motion because the defendant failed to ask for the particular form of the discovery in regards to the picture and therefore had to settle with what the plaintiff had produced.

In Marketfare Annunciation, LLC v. United Fire & Casualty Ins. Co., 2007 WL 3273440 (E.D. La. Nov. 5, 2007), the Eastern District of Louisiana dealt with a spoliation issue involving electronic evidence in a claim that arose due to Hurricane Katrina. The defendant failed to produce certain e-mails even after the plaintiff put the defendants on notice to preserve them. However, the plaintiff waited until the eve of the close of discovery to file sanctions and therefore the court denied the request.

In Thomas v. IEM, 2008 WL 695230 (M.D. La. Mar. 12, 2008), the Middle District of Louisiana dealt with a civil rights violation. The plaintiff served a Rule 45 subpoena on the defendant in order to obtain access to nine named individuals’ e-mail boxes. The Court held this was an attempt to circumvent discovery deadlines under Rules 26 and 34 and therefore did not grant the request.

In Canon USA, Inc. v. SAM, Inc., 2008 WL 2522087 (E.D. La. June 20, 2008), the Eastern District of Louisiana granted a motion to compel electronically stored data that the defendant had at his home in Florida. After Hurricane Katrina, defendant moved his computer to Florida but when discovery requests were made he did not search the computer to provide complete answers to interrogatories. The court held that this “lackadaisical” treatment of discovery was unacceptable and held that any undeleted information on the computer was discoverable. The Court ordered the defendant to obtain the services of a “forensic computer specialist” and fully respond to the discovery request.

In re Riverside Healthcare, Inc., 2008 WL 4183609 (M.D. La. Sept. 11, 2008), a case in the Middle District of Louisiana, a bankruptcy liquidating supervisor accused a creditor of destroying evidence and sought the adverse presumption that follows spoliation. The creditor had deleted e-mails that the liquidating supervisor considered necessary evidence. However, the court held that spoliation requires bad faith and here there was no bad faith due to the fact that the creditor destroyed e-mails automatically every sixty to ninety days.

In Johnson v. Big Lots Stores, Inc., 2008 WL 2191357 (E.D. La. May 7, 2008), the Eastern District of Louisiana ruled that a plaintiff could not take another deposition of the defendant’s representatives regarding how the defendants preserved and collected electronic data. The Court stated that since the plaintiffs failed to list “e-Discovery” as an issue at the original deposition and since they waited until two days before the close of discovery, the motion to compel the second deposition was denied. The Court also stated that “e-discovery” matters are no longer the novel issues that they once were with the advent of the Internet and wide expansion of computerized data collection and the plaintiffs had no legitimate excuse as to why they failed to make issue of “e-discovery” at the original deposition.

In Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. Oct. 1, 2008), the Eastern District of Louisiana allowed discovery of two non-parties’ computers. In this breach of contract claim, the defendant sought the electronic data from the plaintiff’s mother and a friend who helped him in his business. The Court held that this would not create an undue burden on the mother because the non-party was involved in the plaintiff’s business and would have relevant information stored on her computer. The subpoena was quashed as to the friend because he had adequately answered the discovery request.

In May v. Fedex Freight Southeast, Inc., et al., 2009 WL 1605211 (M.D. La. June 8, 2009), a Middle District of Louisiana case, the plaintiff brought suit for sexual harassment while she was employed by the defendant. Plaintiff sought “any and all e-mails referencing, as well as those sent to and from, plaintiff and [the accused sexual harasser].” The defendant claimed that this was not possible because the e-mail was inaccessibly archived and unsorted. The Court held that the plaintiff and defendant had to meet with the defendant’s IT department to discuss the “burden and expense of producing the e-mails requested by plaintiff.” If then there was still no agreement, the plaintiff was urged to reassert her motion to compel.
 

The United States Supreme Court recently resolved conflicts among the Circuit Courts about the citizenship of a corporation for determining diversity of citizenship jurisdiction (1). This will allow corporations to analyze with more predictable results whether to remove a case to federal court. In Hertz Corp. v. Friend, et al, No. 08-1107 (February 23, 2010) (a unanimous decision, which is unusual in and of itself), the Court decided that when determining a corporation’s citizenship for diversity of citizenship jurisdiction, the “principal place of business” of the corporation is “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities”—something that courts have referred to as the “nerve center” of the corporation.

The District Court and Ninth Circuit determined diversity did not exist because they determined that although Hertz did business in 44 states its business activity was “significantly larger” and “substantially predominated” over activity in other states. Therefore, Hertz’s “principal place of business” and thus, its citizenship, was in California. The Supreme Court agreed to review the Ninth Circuit’s decision.

The Court’s decision focused on the meaning of “principal place of business” in Section 1332(c)(1). It started its analysis with a discussion of the history and rationale for diversity jurisdiction starting with the first diversity jurisdiction statue enacted in 1789 and ending with the current version of 28 U.S.C. §1332(c)(1) which was enacted in 1958. The court then reviewed the various tests used by federal appellate courts to determine the location of a corporation’s “principal place of business.” For example, the First Circuit used a “nerve center” test (the location from which the corporations activities are directed and controlled); the Second Circuit used a “business activities” test (where a corporation’s actual business activities are located); the Sixth and Tenth circuits used a “total activities” test (a combination of the “nerve center” and “business activities” tests); the Fifth and Eleventh circuits used a two-part test (are corporate activities “centralize or de-centralized” and then either a “place of operations” or a “nerve center” test.

The old “nerve center” test won out. The Court found that the best way to identify the principal place of business of a corporation as “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” This conclusion was reached for three reasons: (1) the statutory language supported the approach of identifying a single state as the principal place of business; (2) it leads to “administrative simplicity” and predictability that will allow courts to focus on the underlying merits of a case rather than jousting over jurisdiction; and (3) the legislative history supported the conclusion.
 

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 (1) The diversity jurisdiction statute, 28 U.S.C. §1332(c)(1) says that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.”

The Louisiana Legislature has adopted House Concurrent Resolution No. 185, authored by Representative Tim Burns.  The resolution urges and requests that the Department of Health and Hospitals and the Deptartment of Insurance, in consultation with the Louisiana State Licensing Board for Contractors, investigate the health risks associated with living in homes that contain drywall imported from China, study the potential homeowners insurance coverage issues, including triggers, endorsements, and exclusions to policies that are related to drywall imported from China, and determine whether such material should be identified as a substandard, unsafe building material.  The resolution goes on to request a report of the findings and recommendations of this study to the legislature prior to the convening of the 2010 regular session.

A copy of the enrolled version of the resolution can be seen here: Download file

Judge Hicks relied upon Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 2193 (1981) in analyzing the issue. He first noted that such restraint required “specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” The need for limitation, in turn, is to be based upon a “specific record showing by the moving party of …actual or threatened abuse by the party sought to be restrained.” Any relief granted must be “consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”

?        that a particular form of communication has occurred or is threatened to occur; and

?        that the particular form of communication at issue is abusive in that it threatens the proper functioning of the litigation.

Judge Hicks noted past forms of such “abuse” included: (a) communications seeking to coerce putative class members into excluding themselves from litigation; (b) false, misleading or confusing statements; and (c) communications that seek to undermine cooperation with or confidence in the class counsel.

Judge Hicks ultimately concluded that communications by the defendant seeking offering settlements to putative class members might be allowed if “coupled with a notification or cautionary statement concerning the pending litigation above the signature line….” Such notification or cautionary statement must “sufficiently apprize any potential class member (who is presented with the general receipt and release) of the pendency of this putative class action and sufficiently describe the nature of the claims which he is releasing by signing the release, but the language in the notice should not rise to the level of a solicitation for Plaintiff’s counsel.”  He further required this notice to be in bold capital letters. He then ordered the parties to draft such a notice for his approval.

The decision clearly presumes a measure of freedom for defense counsel to contact putative class members, and places the burden upon plaintiffs’ counsel to show that such contact is, or threatens to be, abusive.

Cautionary note: the district court judge will review the magistrate's ruling, if objected to, and an appeal could follow. The decision is far from final.

You should also be forewarned that, according to acronymfinder, there are thirty-two (32) different applications for the acronym "CAFA," including the "Canadian Association of Freediving and Apnea." But I digress.

On October 7, 2004, a tractor-trailer struck the Columbia bridge on the Ouachita River in Caldwell Parish. The bridge was closed (and I think it's still closed). Plaintiff brought a class action on November 28, 2005, on behalf of "all persons and businesses that resided or worked in Caldwell Parish on October 7, 2004, and were affected by the closure of the Columbia bridge." (Here's a somewhat pensive related news blurb.) Among other consequences of the accident, the Louisiana Art and Folk Festival was cancelled.

CAFA created the concept of "balanced diversity" in class actions, vesting federal courts with subject matter jurisdiction, notwithstanding some common citizenship between plaintiffs and defendants, so long as at least one "member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. 1332(d)(2)(A).

Two other requirements are necessary to allow "balanced diversity:" (a) the putative class must consist of 100 or more members (28 U.S.C. 1332(d)(5)(B)); and (b) the matter in controversy, as among the putative class, must exceed $5,000,000 (28 U.S.C. 1332(d)).

No one disputed that the statutory elements for balanced diversity were present in Robinson.

There are two exceptions to otherwise-proper balanced diversity jurisdiction under CAFA - the "Home State" exception and the "Local Controversy" exception.

Under the "Home State" exception, if a defendant is sued in its home state and two-thirds or more of the class members are from the defendants' home state, federal jurisdiction does not lie. That exception did not apply in Robinson.

Plaintiff Robinson focused her argument on the "Local Controversy" exception. This exception to jurisdiction requires a showing of four factors:
a) more than 2/3 of the class are citizens of the forum state;
b) the conduct of at least one in-state defendant forms "a significant basis of the asserted claims," and the members of the class seek significant relief from that defendant;
c) the principal injuries were incurred in the forum state; and
d) no other class action suit asserting the "same or similar factual allegations" has been filed within three years of the filing of this lawsuit.

The court zeroed in on factor (b). The only Louisiana defendant was the truck driver. Magistrate Hayes examined the legislative history and determined that the following inquiries would determine whether plaintiffs were seeking "significant relief" from the individual driver:
a) how many members of the class were allegedly harmed by his actions;
b) comparison of the relief sought between all defendants; and
c) the defendant's ability to pay a judgment.

The court concluded that Mr. Gaston was "small change," and that "plaintiffs will seek most of that relief [$5,000,000] from those who are capable of paying it," the out-of-state defendants, all national companies.

"We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana's major port cities --- New Orleans, Baton Rouge and Lake Charles -- and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients." said Gary A. Bezet, managing partner of the 121-lawyer firm.

Michael A. McGlone, Charles R. Talley, Glenn P. Orgeron, Lisa A. Easterling, Bradley J. Schlotterer, and Lawrence J. Hand, Jr. join the firm as partners in the New Orleans office. The firm also welcomes Karen Waters Shipman, Stephen C. Hanemann, Jamie Domilise Henry, Kelly B. Green, and Michael J. O'Brien as associates. Heather Ashman Johnson joins the firm as of counsel. All were formerly with Lemle & Kelleher, LLP of New Orleans.

About the New Partners:

Michael A. "Mike" McGlone joins the firm as a partner in the New Orleans office. He is the senior-most Admiralty and Maritime lawyer in the firm. He has extensive experience in admiralty and maritime law, maritime litigation, marine insurance, personal injury defense, allisions, collisions, and appeals. Mr. McGlone, a native of New Orleans, received his J.D. from Loyola University Law School in 1975 where he was a member of the Loyola Law Review. He earned his B.A. in Business Administration, cum laude, from Loyola University in 1972. Upon graduation from law school, he served as a law clerk to the Hon. Herbert W. Christenberry of the United States District Court for the Eastern District of Louisiana.

Charles R. "Chuck" Talley joins the firm as a partner in the New Orleans office. He practices in the Admiralty and Maritime and Oil & Gas practice groups. He has particular experience in admiralty and maritime law, personal injury defense, property damage claims, appeals, Corbello litigation, and oil & gas law. Mr. Talley received his J.D. from Florida State University in 1981 where he was a member of the Florida State University Law Review and served as Articles and Notes Editor. He earned B.A., magna cum laude, from Vanderbilt University in 1978.

Glenn P. Orgeron joins the firm as a partner in the New Orleans office. A native of New Orleans, he practices in the Admiralty and Maritime and Construction practice groups. He has particular experience in construction law, consumer credit issues, and product liability litigation. Mr. Orgeron is a Lieutenant Colonel (Retired) in the United States Marine Corps. He has served in a variety of legal positions for the United States Marine Corps, including assignments as Deputy General Counsel, Assistant General Counsel, and General Counsel in wide range of jurisdictions including Hawaii, Japan, the Indian Ocean, Washington, D.C., California, and Panama. During his military career, Mr. Orgeron handled all aspects of felony criminal trials and administrative law litigation matters and advised the staffs of the Chief of Naval Operations, Joint Chiefs of Staff, and major operational commanders on worldwide international and operational law. Prior to his 20-year military career, he served as an electrical engineer with the NASA Manned Spacecraft Center in Houston on the Apollo XI Lunar mission and on the Apollo Lunar Rover development team. Mr. Orgeron received his J.D. from the Tulane University Law School in 1978 and his Master of Legal Letters in International Law from The George Washington University in 1983. He earned his Master of Science in Electrical Engineering from Louisiana State University in 1970 and his Masters of Science in Administration from The George Washington University in 1975. Mr. Orgeron earned his B.S. in Electrical Engineering from Tulane University in 1968.

Lisa A. Easterling joins the firm as a partner in the New Orleans office. She practices in Construction and Litigation groups. Ms. Easterling has extensive experience in complex commercial construction matters, construction defect cases, mold litigation, and Fair Credit Reporting Act litigation. Ms. Easterling received her J.D. from the University of Mississippi Law School in 1992 where she was a member of the Mississippi Law Review. After law school, she served as a judicial law clerk to the Hon. George Arceneaux, Jr. , the Hon. Henry A. Mentz, Jr. and the Hon. Veronica D. Wicker, all of the United States District Court for the Eastern District of Louisiana. She earned her B.S. in Journalism, with honors, from the University of Southern Mississippi in 1988.

Bradley J. Schlotterer, a native of New Orleans, joins the firm as a partner in the New Orleans office. He practices in the Admiralty and Maritime practice group. Following law school, Mr. Schlotterer served as a federal law clerk to the Hon. G. Thomas Porteous, Jr. at the United States District Court for the Eastern District of Louisiana. Mr. Schlotterer received his J.D. from the LSU Law Center in 1995. He earned his B.S. in Finance from Louisiana State University in 1991.

Lawrence J. Hand, Jr. joins the firm as a partner in the New Orleans office. He practices in the Energy, Pipeline and Toxic Tort practice groups. Mr. Hand has extensive experience in energy law, regulation and litigation, insurance coverage and litigation, toxic tort litigation, contract litigation, and complex commercial disputes. He has particular experience in complex legal representation of interstate and intrastate natural gas pipelines, natural gas gathering companies, crude pipelines, natural gas processors, power generators, marketers and distributors, oil and gas producers, chemical manufacturers, and aluminum manufacturers. Mr. Hand also represents life insurers, regional banks, malpractice insurers, and general liability insurers. Mr. Hand received his J.D., cum laude, from the Loyola University School of Law in 1995 where he was a member of the Loyola Law Review. He earned his B.A. in Secondary Speech and Communication Education from the University of New Orleans in 1991.

About the New Attorneys:

Karen W. Shipman joins the firm as an associate in the New Orleans office. She practices in the Admiralty and Maritime practice group. She has particular experience in admiralty issues involving a wide variety of admiralty and oil & gas issues, including Jones Act, personal injury, oil and gas exploration, well blowouts, cargo damage, vessel collisions, and barge damage. She also has experience in construction law, consumer credit reporting, and general personal injury litigation. Following law school, Ms. Shipman served as a contact attorney in New York City. Upon her return to New Orleans, she served as a judicial law clerk to the Hon. Fredericka H. Wicker of the Twenty-Fourth Judicial District Court for the Parish of Jefferson. Karen received her J.D., cum laude, from the Tulane University School of Law in 1998 with a Certificate of Specialization in Admiralty Law. She earned her B.A. in Anthropology and Human and Natural Ecology from Emory University in 1993.

Stephen C. Hanemann joins the New Orleans office as an associate attorney. He practices in the Admiralty and Maritime practice group. He has extensive experience in a wide variety of admiralty issues, including Jones Act, personal injury, oil and gas exploration, pipeline spills, drilling accidents, well blowouts, cargo damage, ship collisions, ship allisions, vessel groundings, lift boat and jack-up rig accidents, vessel liens, sunken barges, vessel mortgage filings, product liability, redhibition, commercial lease agreements, and other commercial litigation issues. Mr. Hanemann received his J.D. from the Loyola University School of Law in 2002. He earned his B.A. in French from the University of Texas at Austin in 1999.

Jamie Domilise Henry joins the New Orleans office as an associate attorney. She is a native of New Orleans and practices in the Admiralty and Maritime practice group. Ms. Henry received her J.D. and her Bachelor's Degree in Civil Law from the LSU Law Center in 2002. She earned her B.A. in Biology (1998) and English (1999) from the University of Mississippi.

Kelly B. Green joins the New Orleans office as an associate attorney. She practices in the Admiralty and Maritime practice group. Ms. Green received her J.D. from the Tulane University School of Law in 2003. She earned her B.A. in Political Science from Mary Baldwin College in 2000.

Michael J. O'Brien joins the New Orleans office as an associate attorney. A native of New Orleans, he practices in the Admiralty and Maritime practice group. He has extensive experience in a wide variety of admiralty issues, including Jones Act and personal injury defense, maritime litigation, oil and gas exploration, drilling accidents, well blowouts, cargo damage, ship collisions, ship allisions, vessel groundings, lift boat and jack-up rig accidents, vessel mortgage filings, product liability, redhibition, as well as premesis liability, construction defect litigation and appeals. Michael received his J.D. from Loyola University in 2001 where he received the Joseph Rault Award for excellence in Admiralty and Maritime Law. He earned his B.A. in Political Science from Iowa State University in 1998. He attended Iowa State on a NCAA football scholarship.

Heather Ashman Johnson joins the New Orleans office as of counsel. A native of New Orleans, Ms. Johnson practices in the Admiralty and Maritime practice group. She has served as Counsel for Brown & Root, Inc. in Houston, Texas and as a General Attorney with the Saudi Arabian Oil Company in Saudi Arabia. She has particular experience in complex commercial maritime issues including all aspects of international sales contract negotiations, chartering activities, downstream joint ventures, and in the negotiation of multi-million dollar cargo damage claims. Ms. Johnson received her J.D. from the University of Pennsylvania Law School in 1981 and a Master of Laws, with distinction, from the Tulane University School of Law in 1983. She earned her B.A. in Political Science, summa cum laude, from Newcomb College in New Orleans in 1977.

About the Admiralty and Maritime, Construction and Energy Law Groups:

Kean Miller represents a wide range of clients in admiralty and maritime issues in Louisiana. Our lawyers have extensive experience in the shipping, marine insurance, tugs and towage, drilling rigs, and oil & gas exploration. Our offices are located in major port cities throughout Louisiana, including New Orleans, Baton Rouge, and Lake Charles, Louisiana. Our Admiralty and Maritime team has significant experience in personal injury defense, property damage claims, appeals, and oil & gas law. We offer clients detailed admiralty experience with regard to activities in the "oil patch" involving the exploration, development, production and transportation of oil and gas. We represent numerous clients in "brownwater" and deepwater (or "bluewater") matters throughout the Gulf Coast region. Many members of the team are involved at a leadership level in the Maritime Law Association, the Greater New Orleans Barge Fleeting Association, the Marine Index Bureau, Mariners Club Port of New Orleans, and the maritime and admiralty sections of the Louisiana State Bar Association and the American Bar Association. We represent our clients before all state and federal courts, governmental regulatory and administrative bodies, and in complex litigation. We serve as counsel to local, national and international oil and gas producers, vessel owners and operators, shipyards, drilling contractors, service companies, brokers, barge lines, and underwriters.

Kean Miller represents many of Louisiana's most successful construction businesses and Fortune 500 companies in construction law matters. We handle legal issues in connection with contract interpretation, including drawings, specifications, change orders and back charges, lien rights and remedies, contract disputes and litigation. In addition, we have substantial experience in the Private Works Act, the Public Works Act and the Miller Act. Our lawyers assist industry clients with issues involving performance and payment, bid and retainage bond rights, liability and responsibility. On behalf of our clients, we have negotiated with owners, general contractors, subcontractors, architects, laborers, material men, bond companies, suppliers, architects, attorneys, bankruptcy trustees, bankers, and public officials.

We also represent clients in lawsuits, arbitration, mediation and alternative dispute resolution proceedings. Recently, we have represented clients in lawsuits involving insurers of engineers and building owners, and suits for and against sub-contractors and architects.

Kean Miller has represented the Louisiana energy industry since its earliest presence in the state. Many of the firm's national and international chemical and refining clients came to our predecessor firm in the 1920s for assistance in the acquisition of land for their first Louisiana sites. As these companies expanded in Louisiana, so did the variety and complexity of their legal needs. Today, these energy clients continue to rely on Kean Miller for their legal services based on our understanding of the complex needs of their industry, our knowledge of their business, and our Louisiana know-how.

Kean Miller has extensive experience in energy law, regulation and litigation. We have particular experience in complex legal representation of interstate and intrastate natural gas pipelines, natural gas gathering companies, crude pipelines, natural gas processors, power generators, marketers and distributors, oil and gas producers, chemical manufacturers, and aluminum manufacturers.

About Kean Miller:

With more than 120 lawyers, Kean Miller serves the legal needs of Louisiana businesses and Fortune 500 companies. The firm maintains two offices in Baton Rouge, and full service offices in New Orleans, Lake Charles and Plaquemine, Louisiana. Kean Miller is the largest law firm in the Greater Baton Rouge region. The firm serves clients in numerous industries including energy, petrochemical and chemical, technology and telecommunications, shipping and transportation, drilling and exploration, pipelines, media and advertising, financial services, insurance, gaming, government and education, health care, manufacturing, real estate, retail, construction and leasing. The firm combines the talent and expertise of its lawyers into multi-disciplinary client and industry teams. These teams are comprised of seasoned legal professionals from a variety of disciplines who are equipped to identify legal and business needs and to develop superior service strategies that provide unmatched support to the client.

For more information, contact Steve Boutwell at 225.389.3736, or steve.boutwell@keanmiller.com

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 793-795 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

Katrina has already spawned a hurricane of lawsuits. These suits include: suits by individuals who claim they were injured by hazardous substances that leaked from storage facilities, refineries, or pipeline facilities; suits by individuals who claim that oilfield production and pipeline activities caused wetland damage that exacerbated the effects of hurricane Katrina; and suits by individuals who claim faulty levees caused the widespread flooding that followed in the days after Katrina made landfall. All of these suits have a common thread: each will require the courts to determine whether the damages sued upon resulted from nature's fury or human blunder.

Louisiana, like many other states, recognizes the general principle that an "act of God" can be a complete defense to liability for negligence and strict liability claims. Louisiana courts have generally used a consistent definition of the term "act of God," but the application of that definition in the context of a specific event has not always been consistent or clear, particularly when the issue of contributing human fault is at play.

Read the entire article here: Download file

The past twenty years has seen a dramatic increase in the volume of mass tort and other forms of complex litigation. As the volume of litigation has grown, so too have the burdens on the judiciary and the litigants. To address this growing problem, it is imperative that modern adjudicatory tools be adopted to achieve the goal of securing the just, speedy, and inexpensive determination of every action. One such case management tool that has developed in the context of mass tort litigation - but that can be equally effective in other types of litigation - is the Lone Pine Order.

In the ensuing twenty years, other courts have gradually become aware of the usefulness of case management orders that require, as a prerequisite for continued prosecution of the suit, the production of objective evidentiary support capable of making a prima facie showing on the key elements of the plaintiffs' claims. See, e.g., Cherry v. Air Products and Chemicals, Inc., No. 85-447 (Ct. Common Pleas, Delaware County, Pa., Order dated June 17, 1987) (emergency personnel and others who responded to a fire at a dumpsite claimed injuries from chemical exposure, and the Court, unhappy with the failure of routine discovery to yield results, stayed all discovery pending plaintiffs' production of expert opinions that each plaintiff's exposure to the site caused his particular illness); Adinolfe v. PJP Landfill, No. L-066549-86 (Sup. Ct., Hudson County, New York, Order dated August 21, 1987), reported in 2 Toxics Law Rptr. 506, September 30, 1987 (approximately 80 residents near a landfill sued 1717 defendants alleged to have contributed waste to the site, alleging personal injuries from fumes and smoke. The trial court ordered the plaintiffs to file "certificates stating as to each defendant, and in specific detail, the factual nexus between each defendant's conduct and/or activities and the damages and injuries alleged by each plaintiff." The plaintiffs' failure to file most of the certificates, and the inadequacy of those filed, resulted in dismissal of the case without prejudice); Pannick v. New Jersey, No. L-86-5162 (Sup. Ct., Mercer County, New Jersey, Order dated April 28, 1989), reported in 4 Toxics Law Rptr. 117, July 5, 1989 (parents of a cancer-stricken child alleged that more than two dozen defendants had contaminated their well water and thus caused the cancer. The court ordered plaintiffs to show a causal connection, with medical expert testimony, between the injuries and specific contaminants); Eggar v. Burlington Northern Railroad Co., 1991 U.S. Dist. Lexis 19240, No. CV 89-159-BLG-JFB (D. Mont., Order dated December 18, 1991) (railroad workers claiming damages from exposure to hazardous substances on the job; court requires each plaintiff to submit a physician's affidavit diagnosing specific illnesses, identifying the substances which "to a reasonable degree of medical certainty" caused the illnesses, and the scientific and medical basis for the physician's opinion). Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 500 (9th Cir. 1994) ("[o]ut of concern that plaintiffs might not be able to demonstrate a causal connection between their workplace chemical exposure and their injuries, the district court issued a case management order consolidating the twenty-seven cases for pretrial purposes. The order required plaintiffs to submit affidavits describing their exposure to the chemicals they claim harmed them, and affidavits from physicians listing each plaintiff's specific injuries, the particular chemical(s) that in the physician's opinion caused each injury, and the scientific basis for the physician's conclusions.")

More recently, the United States Fifth Circuit Court of Appeal expressly approved the use of a Lone Pine order to get control of mass tort litigation. In Acuna et al. v. Brown & Root, et al., 200 F.3d 335 (5th Cir., 2000), approximately 1,600 plaintiffs in two separate actions filed suit claiming they were exposed to and injured by the defendants' uranium mining and processing activities. Some of the plaintiffs worked in uranium mines or processing plants while others alleged exposure to radiation or uranium dust or tailings through contract with family members who worked in the mines or through environmental factors, such as wind and groundwater. To get early control of the litigation, the district court issued pre-discovery scheduling orders that required plaintiffs to establish certain elements of their claims through expert affidavits. Specifically, the affidavits had to identify, for each plaintiff: (1) the injury or illness suffered by the plaintiff; (2) the materials or substances that caused the injury; (3) the facility thought to be the source of the materials or substances; (4) the dates or circumstances and means of exposure to the materials; and (5) the scientific and medical bases for the expert's opinions. The plaintiffs responded by submitting approximately 1,000 form affidavits from a single expert. The form affidavit generally identified illnesses and effects that can occur from exposure to uranium, stated that the relevant plaintiff suffered from some or all of these illnesses, and stated that the expert had reviewed the plaintiff's medical data and concluded that exposure to uranium and its byproducts had reached clinically significant doses. The affidavits also generally listed all of the mining facilities covered in the lawsuit as responsible for causing each plaintiff's exposure, and identified the routes of exposure as including inhalation, ingestion, and direct skin contact.

The court found that the affidavits did not comply with the pre-discovery order and gave the plaintiffs an additional month to comply. Plaintiffs then submitted additional affidavits. Although some of the plaintiffs were identified as having specific diseases, specificity was not provided as to the other elements required in the order. As a result, the district court dismissed the case, and the plaintiffs appealed.

On appeal, the plaintiffs argued that the pre-discovery orders requiring expert support for the details of each plaintiff's claim imposed too high a burden for the early stage of the litigation. The Fifth Circuit rejected the argument and affirmed the dismissal of the case. The Court recognized that "Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation." 200 F.3d at 339. It held that such orders "... are issued under the wide discretion afforded district judges over the management of discovery under Fed.R.Civ.P. 16." ( Id.) Addressing the argument that the order was required too early in the litigation, the Court noted that the order simply required that information which the plaintiffs should have developed as part of their pre-filing obligation to make a reasonable inquiry as to the evidentiary support for their allegations. The court explained:

... Neither the defendants nor the court was on notice from plaintiffs' pleadings as to how many instances of which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries. It was within the court's discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.

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The scheduling orders issued below essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed.R.Civ.P. 11(b)(3). Each plaintiff should have had at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries. (Id.) (Internal citations omitted).

The Court's recognition that, at their core, Lone Pine orders simply require production of that which plaintiffs ought to have obtained before filing suit points to a problem that is all too common in complex litigation - a vague petition followed by onerous discovery requests and time consuming litigation as the plaintiffs attempt to use "discovery" to do that which should have been done before suit was filed. In this regard, the opinion in Acuna can be viewed more broadly as a reminder to litigants that the "reasonable inquiry" requirement of Rule 11 is not simply window dressing - it is a real obligation, and the Lone Pine order can be used to enforce it.

The critical point to remember with Lone Pine orders is that whatever perceived burdens they place on the plaintiffs must be weighed against the burdens protracted litigation will impose on the court system and the defendant. They do not, as plaintiffs often argue, unfairly require the plaintiffs to prove their case before proceeding with the lawsuit. They merely require plaintiffs to define their claims clearly and to demonstrate that there is some competent evidentiary support to justify proceeding with time consuming, burdensome, and complex litigation.

Thus, Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center's Manual for Complex Litigation. The Manual for Complex Litigation discusses several key management issues that should be employed in managing complex litigation, all of which can be effectuated through a carefully considered Lone Pine-type Order.

First, the Manual recognizes and encourages courts to use "... the numerous grants of authority that supplement the court's inherent power to manage litigation." (Manual for Complex Litigation, Fourth, §10.1.) One of these specific grants of authority is Federal Rule Civ. Proc. 16(c)(12), which encourages courts to adopt "special procedures" to manage appropriate cases. It provides:

(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to

(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems....

Second, the Manual recognizes that effective judicial management is "active" and "substantive." (Id., at § 10.13.) The management should be "active" in the sense that the judge will anticipate crucial issues before they arise "... rather than await passively for counsel to present them." (Id.) It should be "substantive" by allowing the court to become familiar with the key substantive issues at an early stage so that the court can make informed rulings on issue definition and narrowing. (Id.) To accomplish this, the court should seek specific information and require the attorneys, at the earliest possible stage, to "... describe the material facts they intend to prove and how they intend to prove them." (Id., at § 11.33.)

Third, the Manual recognizes that the best time to adopt "special procedures" to manage potentially difficult or protracted litigation is during the very early stages. "Judicial supervision is most needed and productive early in the litigation." (Id., at §10.1.) One of the key components of effective litigation management is a plan that requires the early identification of the key material facts and legal issues that will dictate the direction of the litigation. As recognized by the Manual for Complex Litigation, "[t]he sine qua non of managing complex litigation is defining the issues in the litigation. The materiality of facts and the scope of discovery (and the trial) cannot be determined without identification and definition of the controverted issues...." (Id., at §11.31.)

An effective Lone Pine order accomplishes all of these goals. The two-fold requirement that plaintiffs identify specifically their injuries and produce some form of objective evidence of causation has the effect of quickly defining where the critical litigation issues will lie. This, in turn, allows the court, very early, to determine how pre-trial motions and discovery should be scheduled, and gives the court the type of concrete information it will need to address discovery disputes that inevitably arise in complex litigation.

Although plaintiffs often complain that the orders are one-sided, they are only "one-sided" to the extent that the law places the burden of proof on the plaintiff in litigation. Plaintiffs control the timing of when a lawsuit is filed, so it is not unreasonable to require the initial production of concrete information to be provided by the plaintiffs.

Furthermore, plaintiffs often lose sight of the fact that effectively responding to a Lone Pine order can help their own cause immeasurably. An effective response communicates to the defendant and to the court that the plaintiffs have "done their homework" and are prepared to present an effective case. This can foster early and meaningful alternative resolution methods that might not otherwise be undertaken until long after the parties have spent considerable time and money.

Thus, Lone Pine orders should viewed as more than tools to "weed out" baseless claims at an early stage of litigation. Creative variations of the Lone Pine order should be used more frequently as a case management tool in complex litigation to help define issues, streamline discovery, and allow the court to take control of the litigation at the earliest possible stages.

About the Author:

Glenn M. Farnet is a partner in the Baton Rouge office of Kean Miller. He joined the firm in 1991 and practices in the commercial litigation, class action and toxic tort defense groups. Glenn has more than 14 years of experience in toxic tort defense litigation, product liability defense litigation, class action defense litigation, and commercial litigation. He advises clients on litigation strategy and class action litigation management. Glenn has particular experience in class action litigation involving consumer products, computers and software, chemical exposures, mass torts arising from releases or catastrophic accidents, as well as product liability litigation. He can be reached at 225.382.3431 or glenn.farnet@keanmiller.com

Those with the temerity to tackle the forbidding labyrinth of Louisiana class action law -- and the foresight to gauge the daunting nature of the task ahead -- may wish to consult the eminently useful Practical Digest of Louisiana Class Action Decisions, compiled by the Honorable Thomas F. Daley, Louisiana Fifth Circuit Court of Appeal, Gerald E. Meunier, of Gainsburgh Benjamin David Meunier & Warshauer, and Kean Miller's own Charles S. McCowan, Jr. The editors have compiled and organized a formidable array of excerpts from the most recent Louisiana Supreme Court and appellate court decisions, organized by topic. Of course, class action litigation defies neat categorization and predictability, and courts all too often resort to nostrums in lieu of hard analysis. However, whatever your class action issue, you are likely to find a quote or two "on point," and a wealth of cases to dig into for enlightenment. Resting serenely amidst the turgid prose on adequate representation, typicality, and predominance are some nifty deep South-themed photographs. Look for quiet touches of ironic humor in the juxtaposition of pictures and nearby text. Very quiet touches.

Here is a link to the digest in pdf format.

For many years, Louisiana litigators have faced the often confusing issue of what to do when the court hands you an unfavorable interlocutory judgment. Do you file an application for a supervisory writ or do you file an appeal?

Well, help is finally on the way. House Bill 226 was passed by the Louisiana Senate on Tuesday, June 21, 2005 and sent to Governor Blanco for her signature. The bill, among other things, amends La. Code Civ. Proc. 2083 to eliminate the right to appeal an interlocutory judgment that may cause irreparable injury and provides that appeals of interlocutory judgments are now allowed only when expressly provided by legislation. Unless there is a specific statute granting the right to appeal the interlocutory judgment, you simply need to file a writ application and do not have to worry that an appellate court will later say you should have filed an appeal.

For those who have faced this issue in the class action certification context, HB 226 also amends La. Code Civ. Proc. 592(A)(3)(b) to provide that a court ruling on the issue of class certification (an interlocutory ruling) may be appealed as of right.

If signed by the Governor, the changes will take effect on January 1, 2006.

In-house counsel who are employed in Louisiana but are not licensed to practice law here have until July 1, 2005 to file an application for limited licensure to practice under the Louisiana Supreme Court's new In-House Counsel Rule.

Licensure pursuant to the In-House Counsel Rule is discretionary and is not a matter of right. The license issued pursuant to this rule only authorizes the lawyer to practice exclusively for the employer filing the affidavit submitted with the application. The license is automatically terminated if the lawyer's employment with the employer filing the affidavit is terminated. If the lawyer's employment is terminated but the lawyer is immediately thereafter employed by another employer who files an affidavit, the limited license shall be reinstated. A limited license is valid for four years from the date of issuance. The limited license may be renewed for a successive four year period by filing a written application required by the Committee at least 90 days prior to the expiration of the current license. The application for renewal shall be accompanied by a non-refundable fee.

A lawyer admitted pursuant to the In-House Counsel Rule is required to pay the annual disciplinary assessment required of attorneys admitted to practice three years or more in Louisiana, and State Bar Association annual dues during the period of the limited license. The in-house counsel must also comply with the Louisiana Continuing Legal Education requirements.

If you have questions about the In-House Counsel Rule, please contact us, or the Louisiana Committee on Bar Admissions.

The Honorable Thomas F. Daley
Louisiana Fifth Circuit Court of Appeal

Charles S. McCowan, Jr.
Kean Miller Hawthorne D'Armond McCowan & Jarman, LLP

Gerald E. Meunier
Gainsburgh, Benjamin, David, Meunier & Warshauer

Download the 2004 Digest.

To receive a copy of the upcoming 2005 digest, send an e-mail to: client_services@keanmiller.com

Several high-profile law firms have continued to file class action lawsuits against non-profit hospitals. The basis of these class action suits is that these hospitals have failed to meet their charity care requirements because of certain billing and aggressive collection practices against uninsured patients. Through mid-July, thirty-one lawsuits have been filed in federal court against nearly 300 hospital facilities in fifteen states including Louisiana. The lawsuits also name the American Hospital Association as a conspirator.

A couple of somewhat related events that preceded these lawsuits included an action earlier in the spring by the Illinois Department of Revenue against a non-profit hospital and hearings in June by Congress on hospital billing practices. The Illinois Department of Revenue revoked the tax exempt status of a local non-profit hospital based on several collection practices of the hospital and requested payment of property taxes in excess of one million dollars. In June, the U.S. House of Representatives Ways and Means Committee on Oversight held hearings to examine hospital billing practices for both tax-exempt and "other" hospitals.

These suits filed in federal court, which are seeking class action status, have been primarily brought against tax-exempt hospitals. According to the law firms that have brought these suits, these "tax-exempt hospitals" include hospitals that are county-owned through hospital authorities or are faith-based and hospital facilities that are leased to not-for-profit hospital corporations. The suits provide that these hospitals have received a federal tax exemption as a "charitable" institution under § 501(c)(3) of the Internal Revenue Code and have also received state and local income, property and sales tax exemptions.

The suits are generally brought on behalf of uninsured patients, which have been described in the suits to include individuals who do not (or cannot afford) health insurance or who are indigent and are not eligible for Medicare or Medicaid benefits. Some of the allegations in these lawsuits include that the hospital is breaching its agreement with the U.S. Government and state and local governments in return for its tax-exempt status by:

1. Failing to provide emergency room care to uninsured patients without regard to their ability to pay;

2. Charging uninsured patients an undiscounted cost for medical care at inflated rates from the actual cost while providing the same services to insured patients of private insurance companies for significantly lower prices;

3. Providing discounted medical care to its employees and entities connected to its Board of Directors;

4. Allowing for non-charitable for-profit physician groups and service providers to derive profits from use of its tax-exempt hospital; and

5. Engaging in aggressive efforts to collect medical debt from uninsured patients through aggressive lawsuits, liens, and garnishments.

An interesting allegation in the suits concerns the use of facilities of a tax-exempt hospital to derive a profit by physician groups. In the suits, the complaint argues that physician groups and other service providers are essentially deriving a profit in the tax-exempt hospital's facilities that are supposed to be operated actually and exclusively for charitable purposes under 26 U.S.C. § 501(c)(3). This suits state that section 501(c)(3) prohibits charitable tax-exempt property to be used for non-charitable purposes.

Several of these suits also contain allegations regarding conflicts of interest and improper financial gains by hospital board members. The complaints state that hospitals' board members have interlocking conflicts of interest with their hospitals and may profit directly from the current practices of the hospital that are contrary to the hospital's charitable purpose.

It will be interesting to see what affect these law suits may have on the billing and collection practices of hospitals, including both non-profit and for-profit hospitals. Besides concerns with meeting its charitable purpose, tax-exempt hospitals (and all hospitals) need to consider other federal statutes that may adversely affect the hospital because of its billing and collection practices. For example, Section 1128(b)(6)(A) of the Social Security Act permits the OIG to exclude from participation in Federal Health Care Programs any provider or supplier that submits bills or requests for payment to Medicare or Medicaid for amounts that are substantially more than the provider's or supplier's usual charges. The OIG has also commented that the Federal anti-kickback statute does not prohibit discounts to uninsured patients who are unable to pay their hospital bills; however, discounts offered to underinsured patients potentially raise a significant concern under the anti-kickback statute.