Kean Miller

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The U.S. Supreme Court granted Exxon Mobil Corporation’s (“Exxon Mobil”) Petition for a Writ of Certiorari (2006 WL 1786680, 75 USLW 3009, 6/29/2006) and vacated the punitive damages award granted in the Grefer suit. See, Exxon Mobil Corporation v. Grefer, Joseph, et al., 05-1670 __ S.Ct. __, 2007 WL 559870 (2/26/2007).

Plaintiffs claimed that their property had been contaminated with naturally occurring radioactive material (“NORM”) as a result of the pipe cleaning operations conducted thereon. A jury rendered judgment for the plaintiffs and awarded $56.145 million in compensatory damages, $145,000 in general damages, $56 million in restoration costs, and $1 billion in exemplary/punitive damages. The Louisiana Fourth Circuit Court of Appeal affirmed the awards of compensatory damages, general damages, and damages awarded for restoration costs, but reduced the $1billion award for punitive damages to $112.290 million.Continue Reading Grefer Judgment Vacated by Recent U.S. Supreme Court Decision

The Office of Inspector General (“OIG”) recently determined that Louisiana’s Medical Assistance Programs Integrity Law (“MAPIL”) does not meet certain requirements outlined in Section 6031 of the Deficit Reduction Act of 2005 (“DRA”). Section 6031 of the DRA provides a financial incentive to states who enact laws that establish liability to the state for individuals and entities that submit false or fraudulent claims to the state Medicaid program, if the state’s law satisfies certain requirements outlined in the DRA. If the Office of Inspector General (“OIG”) determines that a state false claims act meets the enumerated criteria under the DRA, then the state will receive a 10-percent increase in its share of Medicaid fraud recoveries from state actions brought under the state act. To date, the OIG has reviewed laws enacted in 10 states and determined that seven states’ laws, including MAPIL, do not comply with the DRA requirements.
Continue Reading OIG Reviews 10 State False Claims Acts, Louisiana Act Falls Short

The Louisiana First Circuit Court of Appeal ruled on December 28, 2006 that a CRNA may not rely on a “statement” issued by the Louisiana Board of Nursing that a CRNA may perform pain management procedures even if under the direction and supervision of a physician. A CRNA had asked the Louisiana State Board of Nursing for its opinion on whether a CRNA could perform pain management procedures. The Louisiana State Board of Nursing issued a “statement” which provided that the CRNA could perform procedures such as peripheral nerve blocks, epidural injections and injection of local anesthestics, if under the direction and supervision of the physician.
Continue Reading Court Concludes the Louisiana State Board of Nursing Improperly Released a “Rule” Affecting the Scope of Practice of CRNAs

In Burford v. Cargill, Incorporated, 2007 WL 81667 (W.D. La. 1/9/07), a class action brought on behalf of a putative class of all United States dairy farmers, plaintiffs sought a temporary restraining order from the district court to prevent the defendant from contacting putative class members to settle individual claims. The court has not yet determined whether a class should be certified.

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.”Continue Reading Federal District Court Allows Defense Contact With Putative Class Members

On November 17, 2006, the United States Court of Appeals for the District of Columbia Circuit vacated the Federal Energy Regulatory Commission’s Standards of Conduct as applied to interstate natural gas pipelines. These Standards of Conduct, which are set forth in Order No. 2004 and codified at 18 CFR Part 358, govern the relationship between an interstate natural gas pipeline and various affiliates. The Court found that FERC’s effort to expand the pre-existing standards of conduct beyond relationships between an interstate natural gas pipeline and its marketing affiliates was not supported by record evidence. It is not clear if or when the Commission will revisit Order 2004 and how it will attempt to address the infirmities cited by the Court. It is worth noting that the current Chairman of the Commission, Joseph Kelliher, issued a strong dissent when Order 2004 was originally enacted and argued in favor of keeping the Standards of Conduct applicable only to marketing affiliates of interstate pipelines.
Continue Reading D.C. Court of Appeals Vacates FERC Standards of Conduct for Interstate Natural Gas Pipelines

The Louisiana Supreme Court recently denied the writ application of Crosstex LIG, LLC relating to its 2005 ad valorem property tax disputes with Rapides and Ouachita parishes. Crosstex had appealed the values because Ouachita adjusted for obsolescence but did not use the service factor formula set forth in the Louisiana Tax Commission (“LTC”) Rules and…

In Susan Orillion v. Crawford, 2005-0559 (La. App. 1 Cir. 9/1/06), 2006 WL 2521450, Orillion disputed the imposition of Louisiana individual income taxes on prejudgment interest received in connection with an automobile accident in 1988. The state paid its half of the damage award judgment in connection with the accident, with accrued judicial interest. Relying on tax laws current at the time, the Orillions paid no state or federal income taxes on their damage awards.

As described by the court, “The issue of whether prejudgment interest was taxable under 26 U.S.C.A. §104(a)(2) came to the forefront in federal court beginning with an unpublished case arising out of Michigan, entitled Kovacs vs. C.I.R., 25 F.3d 1048 (6th Cir. 1994), cert. denied, 513 U.S. 963, 115 S.Ct. 424, 130 L.Ed.2d 338 (1994). It was quickly and subsequently followed by a series of cases that held that prejudgment interest was not excluded from taxation under 26 U.S.C.A. §104(a)(2).” Thus, beginning in 1994 the treatment of prejudgment interest for federal tax purposes became clear. Orillion, however, contended that La. R.S. 47:46 precluded the imposition of the Louisiana individual income tax on prejudgment interest. In pertinent part, La. R.S. 47:46 provides, “gross income does not include: * * * (2) the amounts of any damages received (whether by suit or agreement) on account of personal injuries or sickness * * *.”Continue Reading State Income Tax on Prejudgment Interest? No, Says First Circuit

The Centers for Medicare and Medicaid Services (“CMS”) recently issued an advisory opinion on November 6, 2006 regarding the physician recruitment exception in the federal physician self-referral law, commonly know as the Stark Law. CMS specifically addressed whether a physician who would spend up to 20% of their time practicing outside of the recruiting hospital’s geographic service area would meet the relocation requirement of the physician recruitment exception to the Stark Law.

Under the proposed recruitment arrangement, the recruiting hospital would provide the following loans to the physician directly:

(1)      A loan for the payment of the physicians moving and relocation expenses, which would be forgiven after 1 year;

(2)      A loan equal to the physicians first year medical malpractice premium not to exceed $10,000.00, which would be forgivable over 3 years; and

(3)      A loan to repay the physicians medical school loans, which would be forgivable over a 3 year period.

The recruiting hospital would provide no other compensation that either the practice to the physician is joining or to the physician in connection with the proposed recruitment arrangement. In addition, the forgiveness of the loans would be based on the physician meeting certain service and other commitments.Continue Reading CMS Issues Advisory Opinion Regarding the Physician Recruitment Exception to the Stark Law

From Naked Ownership (hey, it’s a genuine Louisiana legal phrase), a law blog maintained by Al Robert, Jr., Ernest Svenson, Raymond Ward, and Todd Slack, comes this post on changes to the Uniform Rules governing Louisiana Courts of Appeal. A copy of the new rules can be viewed here. 

As e-discovery continues its relentless assault…