The Louisiana Supreme Court issued a unanimous decision clearing the way for the City of Lafayette to issue bonds to finance its Fiber-to-the-Home (FTTP) Project. As described by the Court, FTTH technology delivers telecommunications services via fiber optic cables to every home and business in the covered area. In contrast, a more traditional system delivers services to a distant point, with the remaining distance to each home and business being covered by technically inferior and bandwidth-limiting copper (telephone) wires. The decision ends eighteen months of litigation, starting after the citizens of Lafayette voted 62% to 38% in a July 16, 2005 election to issue up to $125 million in bonds for the Project. Project opponents filing suit to block the bond issuance included the incumbent cable and telephone companies, as well as two Lafayette residents. For additional news articles relating to the decision, see http://www.theadvertiser.com/apps/pbcs.dll/article?AID=/20070223/NEWS01/702230321/1002 and http://www.2theadvocate.com/news/6008236.html

Continue Reading Louisiana Supreme Court Approves Lafayette’s Fiber-to-the-Home Bond Ordinance

On January 31, 2007, a Louisiana district court in Cameron Parish set aside a jury verdict from two months earlier that awarded $57 Million for wetlands losses allegedly caused by decades of surface water discharges of produced water. In its January 31, 2007 Ruling of the Court in the Dore Energy, Corporation v. Carter-Langham, Inc., et al case, the court concluded that the landowner could not sue the sublessee under the mineral lease at issue because the sublessee had concluded its operations under that lease prior to the Louisiana Mineral Code becoming effective.   The court found the landowner-plaintiff had no privity of contract with the sublessee-defendant. The court also found that Act 312 of the 2006 Regular Session of the Louisiana Legislature applied to the plaintiff’s claims, reversing an earlier procedural ruling in the case. Act 312 creates certain procedures in lawsuits involving claims of contamination resulting from activities associated with oilfield sites or exploration and production sites. The court ordered the case stayed and ordered that appropriate notices be given to the state of Louisiana as required by Act 312.    Further developments in the case are likely.

On February 2, 2007, the Louisiana Supreme Court vacated [Footnote] two decisions out of the Louisiana Third Circuit (Lake Charles), Taylor v. Clement and Arrington v. Galen-Med., Inc. et al. Taylor/Arrington garnered much attention in September 2006 when the Third Circuit declared Louisiana’s medical malpractice cap, La. R.S. 40:1299.42(B) (a statute that has survived countless constitutional challenges since its enactment in the mid-1970s), unconstitutional. The Third Circuit reasoned that the $500,000 cap on damages did not provide the plaintiffs with “an adequate remedy” when considering the purported diminution of the cap over time due to inflation. The adequate remedy challenge to the constitutionality of a statute is derived from Article I, Section 22 of the Louisiana Constitution. Under current law, the $500,000 cap does not include future medical care costs and related expenses; it does, however, include pain and suffering, lost wages and other damages.

Continue Reading Louisiana Supreme Court Vacates Third Circuit Decision Declaring Medical Malpractice Cap Unconstitutional

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

As most are aware, the Third Circuit Court of Appeal in Lake Charles recently ruled the medical malpractice cap unconstitutional.  The decision will be reviewed by the Louisiana Supreme Court, a process that could take anywhere from three to twelve months.  In the meantime, the cap is still applicable.

By comparison, the majority of states have some form of cap on noneconomic damages according to the National Conference of State Legislatures as of 2005.  Louisiana is one of those states.  Ten states cap nonecomomic damages for medical malpractice claims with caps ranging from $150,000 to $1 million.  Twenty-two states have some form of cap on noneconomic damages, although not specifically limited to medical malpractice claims.  Out of these 32 states, 11 also have a form of cap on punitive damages.

A minority of states either constitutionally prohibit limits on damage awards, have state supreme court decisions finding such caps unconstitutional, prohibit caps on damages by statute, or simply have no limitations.  Whether Louisiana joins the minority of states depends on the ruling of the Louisiana Supreme Court.  We will continue to monitor the proceedings with the Louisiana Supreme Court and report any future ruling as soon as it is available.

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 Regulations, and Rapides denied obsolescence as a matter of “standard operating procedure.”

In its decision, the LTC held that when using the cost approach to value pipeline properties, the decision to adjust for obsolescence rests with the “sound discretion” of the assessor, but once the assessor makes the decision, he must use the service factor formula to calculate. By denying the writ, the Supreme Court allows the LTC to circumvent the constitutional and statutory requirements of ad valorem property taxation based upon fair market value, statewide uniformity, and the proper application of the cost approach.

On November 3, 2006, the United States Court of Appeals for the Eleventh Circuit, in the case of Gulfcoast Medical Supply v. Secretary, Department of Health and Human Services, issued an opinion that a certificate of medical necessity (“CMN”) does not unequivocally establish that durable medical equipment (“DME”) meets the reimbursement test of “reasonable and necessary”, as required by Medicare Part B. In the first case of its kind in any federal court of appeals, the Eleventh Circuit held that the Secretary of the Department of Health and Human Services (“DHHS”) may require a DME supplier to submit additional evidence beyond the CMN in order to establish the medical necessity of the item for reimbursement.

Continue Reading Certificate of Medical Necessity (CMN) May Not Be Enough To Prove Item “Reasonable and Necessary”