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Category: Environmental Concerns

  • The Advocate Highlights Jeff Berniard’s Expertise in Smitty’s Supply Explosion Case

    Fire and smoke rise from a chemical plant following the Smitty’s Supply explosion in Tangipahoa Parish.
    The Advocate recognized attorney Jeff Berniard for representing families impacted by the Smitty’s Supply chemical plant explosion and fire.

    The Advocate recently recognized Attorney Jeff Berniard and the Berniard Law Firm for their role in representing families displaced by the Smitty’s Supply explosion and fire in Tangipahoa Parish. Read the full Advocate article here.

    The feature highlights Berniard’s track record of success in large-scale litigation. Over his career, he has served as class counsel and lead counsel in numerous high-profile cases, including lawsuits involving chemical leaks, defective products, insurance bad faith practices, and environmental disasters.

    His legal experience includes being appointed to plaintiff steering committees and class counsel roles in major cases such as:

    • Deepwater Horizon Oil Spill (MDL 2179) – Representing victims of one of the largest environmental disasters in U.S. history.

    • Chinese Drywall Litigation (MDL 2047) – Representing homeowners across Louisiana and beyond who faced toxic building materials.

    • Insurance Bad Faith Class Actions – Representing over 70,000 policyholders after Hurricanes Katrina and Rita.

    The Advocate’s recognition underscores the trust that courts, the media, and affected families place in Berniard’s ability to advocate for justice in the aftermath of industrial and environmental disasters.

    “Our mission has always been to stand up for people against powerful companies and insurers,” Berniard said. “Being recognized in The Advocate for our work on behalf of Tangipahoa Parish residents is a reminder of why we fight these battles every day.”

    You can contact the Berniard Law Firm’s office today to talk about your legal rights as a result of the Smitty’s Fire and lawsuits. Call our office today at 504-521-6000.

    See Also: Attorney Jeff Berniard Featured on WGNO for Leadership in Smitty’s Supply Class Action Lawsuit

    What You Need to Know About the Smitty’s Supply Explosion and Fire in Tangipahoa Parish

  • Berniard Law Firm Takes Legal Action for Families Displaced by the Smitty’s Supply Fire

    Thick smoke and flames rising from the Smitty’s Supply lubricant plant in Roseland, Tangipahoa Parish, after the August 22, 2025 explosion and fire.When the Smitty’s Supply facility erupted in flames on August 22, 2025, residents within a one-mile radius were ordered to evacuate. Families were forced from their homes, many for several days, unsure of when it would be safe to return. In the aftermath, thick soot, oily residue, and chemical contamination settled on homes, vehicles, and property—leaving long-term damage and raising serious questions about insurance coverage.

    The Berniard Law Firm has filed a class action lawsuit against Smitty’s Supply, Inc. seeking justice for affected residents. The petition alleges negligence, gross negligence, nuisance, trespass, and strict liability, arguing that Smitty’s failure to properly store and manage dangerous chemicals directly caused the disaster.

    Residents have reported:

    • Difficulty cleaning soot and ash from their homes and vehicles.

    • Property losses and decreased home values.

    • Health effects such as headaches, stomach aches, respiratory irritation, and anxiety.

    • Out-of-pocket expenses for relocation, cleanup, and repairs.

    While many homeowners will turn to insurance for relief, coverage disputes are likely. Insurers may attempt to minimize payouts or deny claims by pointing to exclusions for chemical damage, pollution, or industrial accidents. The lawsuit filed by the Berniard Law Firm seeks to ensure that residents are not left carrying the financial burden of Smitty’s negligence.

    Our legal team is actively investigating claims and working to protect the rights of those affected. If you or someone you know was displaced or suffered losses from the Smitty’s fire, you should understand both your legal and insurance rights.

    For a free consultation, contact the Berniard Law Firm today at (504) 521-6000 or online at GetJeff.com

  • Sewage Spill Showdown: Cedar Lodge’s Fight for Justice Against Fairway View Apartments

    A picturesque pond, once teeming with life, transformed into a murky, foul-smelling mess. The culprit? Alleged sewage contamination from a neighboring apartment complex. This is the story of Cedar Lodge Plantation’s battle against Fairway View Apartments in Baton Rouge, Louisiana, a legal fight that highlights the complexities of environmental disputes and property damage claims.

    The Contamination Crisis:

    In 2012, Cedar Lodge discovered their pond had been contaminated with sewage, evidenced by high levels of fecal coliform bacteria. The source was traced back to the adjacent Fairway View Apartments. Cedar Lodge’s plans to develop their property into a residential and commercial community were shattered, leading them to sue the apartment owners and their sewage treatment contractor.

    Legal Twists and Turns:

    • Expert Witness Drama: The district court initially excluded Cedar Lodge’s environmental expert, Suresh Sharma, from testifying. This decision was later overturned on appeal, except for opinions related to specific federal standards.

    • Summary Judgment for the Defendants: The district court granted summary judgment to Fairway View Apartments, dismissing Cedar Lodge’s claims. The court reasoned that there was insufficient evidence of damage, even though contamination had occurred.

    • Appeal and Partial Reversal: The Court of Appeals partially reversed the district court’s decision, finding that there were genuine issues of material fact regarding Cedar Lodge’s negligence and nuisance claims. The case was remanded for further proceedings.

    Key Takeaways:

    • Environmental Disputes and Property Rights: This case underscores the importance of environmental responsibility and the rights of property owners to be free from contamination caused by neighboring entities.

    • The Role of Expert Witnesses: The admissibility of expert testimony can significantly impact the outcome of a case. The appeals court’s decision to allow Sharma’s testimony demonstrates the importance of carefully evaluating an expert’s qualifications and the relevance of their opinions.

    • Damages in Environmental Cases: Determining damages in environmental cases can be complex. While regulatory standards are important, they don’t necessarily dictate the extent of damages a property owner can recover.

    The Fight Continues: The legal battle between Cedar Lodge and Fairway View is far from over. The case has been remanded to the district court, where a jury will decide whether Fairway View is liable and what damages, if any, should be awarded to Cedar Lodge.

    Additional Sources: CEDAR LODGE PLANTATION, L.L.C., v. CSHV FAIRWAY VIEW I, L.L.C.; CSHV FAIRWAY VIEW II, L.L.C.; CAMPUS ADVANTAGE, INCORPORATED; SEWER TREATMENT SPECIALISTS, L.L.C.,

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Toxic Spills: Petroleum Corporation Releases Millions of Gallons of Toxins Harming Many in Calcasieu Parish and Appellate Court Affirms Trial Court’s Approval of Settlement Agreement in Property Contamination Lawsuit

  • Expert Witnesses Key To Establishing Damages From Industrial Fire

    In a world where news headlines often feature calamitous industrial disasters, it’s hardly surprising to find legal battles trailing in their wake. The following case involves multiple individuals who filed lawsuits against the owner of a facility in Iberia Parish, Louisiana, that had a large fire. 

    A fire at a facility owned by Multi-Chem Group caused multiple explosions, which released chemicals. Following the fire and explosions, multiple people filed lawsuits against Multi-Chem and others, alleging they had been exposed to hazardous materials. The multiple lawsuits were consolidated into three groups based on the distance the injured party was located from the fire source. At trial, the parties presented expert testimony about whether the plaintiffs were exposed to hazardous materials from the Multi-Chem fire and if they suffered damages due to the exposure. The trial court held that the plaintiffs had established exposure and awarded damages to the three groups. The damages included medical expenses, general damages, and mental anguish related to the fear of developing cancer. Multi-Chem filed an appeal. 

    On appeal, Multi-Chem argued the trial court erred in admitting and excluding certain expert testimony. Article 702 of the Louisiana Code of Evidence governs expert testimony. At trial, the trial court evaluated the expert witnesses’ relevant credentials when deciding whether and to what extent to credit the expert witnesses’ testimony. The court also analyzed the underlying data the experts used as the basis for their opinions. Therefore, the appellate court found Multi-Chem’s argument that the trial court erred in which expert testimony it admitted and excluded lacked merit. 

    Multi-Chem also argued the plaintiffs did not establish their exposure caused their damages. Mutli-Chem claimed the expert acknowledged that sampling of the air did not reveal hazardous chemical levels. However, the expert also testified the chemicals could have caused harm by adhering to and absorbing into the particulate matter from the fire. The expert also testified some of the at-issue chemicals could cause future injuries, including cancer. Based on the expert witness’s testimony, the appellate court concluded the trial court did not err in finding the plaintiffs established general causation.

    Multi-Chem also argued the trial court awarded excessive and unsupported damages. When appellate courts review a trial court’s award of general damages, it considers whether the trial court abused its discretion when assessing and awarding damages. See Purvis v. Grant Parish Sch. Bd. The appellate court reviewed testimony from witnesses in the different groups of plaintiffs about what they had suffered due to the fire and related chemical exposure. The appellate court deferred to the trial court’s determinations that these witnesses’ testimony was credible and held the trial court’s award of damages was supported by the record. However, the appellate court did reverse damages awarded to certain plaintiffs for fear of developing cancer because the relevant witnesses did not testify about their fear of developing cancer, so there was a lack of supporting evidence. 

    When dealing with a complex lawsuit, a good lawyer can advise you on needed expert testimony and help identify qualified expert witnesses. As seen here, testimony from the expert witnesses was essential for the plaintiffs to prevail on their claims and support the damages they were awarded on appeal.

    Additional Sources: Robert J. Broussard, et al. v. Multi-Chem Group, LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Expert Witnesses: Exposure to Radioactive Materials: Substantiating Injury Claims with Evidence and Expert Witnesses

  • Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

    We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

    Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia. 

    Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed. 

    Exxon contended Mulkey’s claims were barred by the Louisiana Workers’ Compensation Act (LWCA). Mulkey claims she successfully alleged an intentional tort, an exception to the LWCA. To establish this, an employee must show the employer “1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” See Cador v. Deep South Equipment Co., 166 So.3d 344, 347 (La. Ct. App. 2015). 

    A plaintiff is allowed to show malice, intent and knowledge as part of the claim. The record showed Exxon knew of the risks of benzene exposure. Specifically, its potential to cause cancer. Mulkey showed Exxon employees knew of these problems. Even before Mulkey Sr. began working at Exxon, Exxon knew of benzene’s effect on the blood. Exxon knew prolonged exposure to benzene was incredibly dangerous. Despite this, Exxon exposed Mulkey to the benzene without warning him of its potential impact on his body. Mulkey thus alleged the exposure was without Mulkey Sr.’s consent, and exposure was done with intent. 

    The Louisiana Court of Appeal for the First Circuit found Mulkey’s claim sufficient in proving the element of intent for a tort action. Mulkey provided enough facts to support these findings. Exxon’s immunity under the LWCA therefore did not apply. The trial court’s judgment was reversed and remanded for further proceedings. 

    This case is an important example of why it is imperative to have the necessary evidence required to state a claim. If a party does not have evidence to prove all elements of a claim, their lawsuit might be dismissed for lack of cause of action. Luckily, the plaintiff here was able to prove there was prior knowledge of the effects of benzene exposure. This evidence successfully proved the elements of the case. A lawyer who does his due diligence can successfully state a claim. 

    Additional Sources: MICHAEL MARTIN MULKEY, SR. versus CENTURY INDEMNITY COMPANY, et. al. 

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova

    Other Berniard Law Firm Articles on Benzene and Workers’ Compensation: Workers’ Compensation Suit Claiming Benzene Exposure Caused Non-Hodgkin’s Lymphoma Fails

  • Louisiana Engineering Company Not Liable for Trampled Worker in Geismar Plant Explosion

    A chemical plant explosion, sudden and dangerous, causes chaos when the workers try to escape. During that exodus, a worker is trampled by his colleagues as they attempt to flee. Who then bears responsibility for the injuries caused by this trampling? Is it the other workers? Is it their managing company? Is it the owner of the chemical plant?

    Just outside Geismar, Louisiana, multiple injuries resulted from a chemical explosion at the William Olefins plant. As a result, the numerous injured parties filed lawsuits against several defendants for those injuries. The defending parties included the Chicago Bridge and Iron Company collective (“CB&I”). One of the plaintiffs was Ken Haydel, whom CB&I had hired to work in the Olefins plant. Haydel alleged that he was pushed down and trampled by other CB&I workers following the explosion and that CB&I is responsible for the “intentional acts” committed by their employees within the scope of their employment. 

    A hearing occurred at the trial court on CB&I’s motion for summary judgment. CB&I sought to evade specific legal claims Haydel made before trial. The trial court granted CB&I’s motion for summary judgment, and Haydel appealed the trial court decision. 

    A motion for summary judgment can be granted after sufficient discovery so long as the party moving for the motion can show no factual dispute for the court to assess. See LSA-C.C.P. art. 966(A)(3). If the moving party can show that they are entitled to judgment as a matter of law, the court’s grant of summary judgment is appropriate. See Smith v. Our Lady of the Lake Hospital, Inc. 93-2512 (La. 7/5/94), 639 So. 2d. 730, 750. 

    In Louisiana, workers’ compensation is usually the sole remedy for an on-the-job injury unless an intentional act is involved. See LSA-R.S. 23:1032(B). The Louisiana courts have previously determined that employers are only liable for such intentional acts done by employees, even if at the worksite during business hours if the act was done according to the employee’s job. See Boudreaux v. Papa Bear’s Pizza, LLC, 2016-1173 (La. App. 1st Cir. 4/26/17), 220 So. 3d. 84,89. Courts consider various factors to analyze the extent of the connection between the act and the job.

    In focusing on whether CB&I was liable for the allegedly intentional harm to Haydel, the court of appeals upheld the dismissal of Haydel’s claims and affirmed summary judgment for CB&I. The primary basis of this decision was that Haydel did not prove with enough specificity that the CB&I employees acted under their CB&I employment when they injured the plaintiff. The court of appeals agreed with both the trial court and CB&I that the mere fact that the trampling occurred on the business premises during working hours is not sufficient to cast vicarious liability on CB&I for the acts of its employees. Additionally, as the trial court found, the facts do not show that CB&I had any part in causing the explosion at the root of this accident. 

    Haydel did not present any arguments against the trial court’s factual findings. The court of appeals affirmed the trial court’s determination that CB&I employees attempting to flee a dangerous explosion was motivated by personal safety concerns rather than CB&I business interests, thus not rising to the level of connection required between intentional act and job. CB&I sufficiently showed that there is no factual dispute as to the claim of vicarious liability–Haydel did not present facts showing CB&I’s responsibility for his injuries, so the motion for summary judgment was appropriately awarded. 

    Haydel’s insufficient factual evidence led to the dismissal of his claims. The casting of vicarious liability on the employer for the acts committed by its employees has particular requirements; it is not enough that the conduct occurred at work, during work. It must be clear on the record that the behavior was done in accordance with the employment, in furtherance of the employer’s interests. Haydel did not show any connection between his injuries and his colleagues’ CB&I employment, a necessary aspect of CB&I’s alleged liability.

    This case demonstrates the complexity of presenting claims to a court. One must choose their attorney wisely and ensure they have the experience to go to trial. 

    Additional Sources: Higgins v. Williams Energy Partners, L.P.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Vicarious Liability of Employers: Bienville Parish Auto Accident Raises Questions of Vicarious Liability

  • Houma Residents Injured by Termite Treatment Shut Out of Court for Failure to Offer Qualified Expert Witnesses

    Expert testimony is one tool litigants can use to prove their arguments in a court of law. Expert witnesses are highly credible individuals with advanced knowledge in a particular field in a lawsuit. The testimony of experts is meant to assist the court in understanding the evidence in matters of fact. But not just anyone claiming to be an expert can testify on behalf of a litigant. As homeowners Blake and Courtney Freeman learned in a painful way, the testimony of six expert witnesses they offered was denied admissibility because it failed to meet Louisiana’s standards for expert testimony evidence.

     The Freeman family purchased a home in Houma, Louisiana, which at the time contained prior termite damage previously treated by Fon’s Pest Management. In 2010, the Freemans began renovating their kitchen and discovered additional termite damage in the kitchen cabinets. As a result, Fon’s Pest Management again treated the Freemans’ home on two separate occasions by drilling holes in the floor, injecting termiticide into the soil beneath the floor, and using spot treatments of termiticide around the house. The spot treatment chemical contained fipronil, a colorless, odorless neurotoxin. Following Fon’s Pest Management’s treatments, the Freemans began to experience health problems that they believed were caused by the termiticide used in their home. As a result, the Freemans moved out of their house and filed an action against Fon’s Pest Management for damages due to injuries caused by the exposure to fipronil. 

     In support of their theory of recovery, the Freemans relied on the expert testimony of three toxicologists, an engineer, an industrial hygienist, and a professional counselor. Fon’s Pest Management filed motions in limine, arguing that none of the expert’s testimony should be admitted into evidence because they failed to meet the required legal standard for experts. A motion in limine is filed by a party who seeks to have the court limit or prevent certain evidence from being presented by the opposing party at trial. These motions, usually filed before the commencement of a trial, are handled outside of the jury’s hearing. The trial court granted Fon’s Pest Management’s motions to exclude the Freemans’ expert testimony and subsequently granted Fon’s Pest Management’s motion for summary judgment.

     On appeal, Louisiana’s First Circuit Court of Appeal reviewed the U.S. Supreme Court’s four-factor “Daubert Test” used to determine whether an expert’s testimony should be accepted into evidence. The factors include: (1) whether the theory or technique has been tested; (2) whether it has been subject to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 593-94 (1993). Additionally, the Court noted that expert testimony is subject to Louisiana’s rules of evidence. For expert testimony, the Louisiana Code of Evidence states that if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, then the testimony will be admissible to the court. See La. C.E. art. 702. In examining the record, the Court noted that none of the experts offered by the Freemans had the requisite knowledge of fipronil, none wrote any peer-reviewed articles on the effects of pesticides on humans, none had conducted studies reviewed by other experts, and none could point to any biological data supporting the Freemans’ claims. Accordingly, the Court affirmed the trial court’s exclusion of the Freemans’ expert testimony and granted summary judgment in favor of Fon’s Pest Management.

    The Freemans’ situation exemplifies the importance of retaining an expert attorney experienced in litigation involving expert witnesses. By failing to offer even one expert the court deemed qualified to present testimony in favor of their theory of recovery, the Freemans lost the opportunity to have their day in court. 

     Additional Sources: FREEMAN v. FON’S PEST MANAGEMENT, INC.

     Written by Berniard Law Firm Blog Writer: Gina McKlveen

     Additional Berniard Law Firm Articles on Expert Testimony: Baton Rouge Medical Malpractice Claim Dismissed Due to Lack of Expert Testimony; Medical Malpractice Case Dismissal Affirmed for Lack of Expert Testimony in Split Decision

  • Petroleum Corporation Releases Millions of Gallons of Toxins Harming Many in Calcasieu Parish

    What happens when the same wrongdoer injures several people? Typically, in cases like this, the court may consolidate the actions to promote the efficient use of judicial resources. However, these cases may be complex and lengthy and require expert testimony, as exemplified by the following lawsuit out of Lake Charles, Louisiana.    

    CITGO Petroleum Corporation’s (“CITGO”) Calcasieu Parish Refinery released millions of gallons of slop oil and wastewater into the Calcasieu River, subsequently contaminating over 100 miles of coastline and taking six months to clean. Slop oil is extremely flammable, poisonous, and listed on the Toxic Substances Control Act inventory. On the same day as the spill, CITGO’s steam lines became submerged and released hydrogen sulfide and sulfur dioxide from several stacks in illegal concentrations for approximately twelve hours. The wind allowed those toxic emissions to reach the surrounding community. 

    The plaintiffs, in this case, assert various injuries as a result of their exposure to the toxic chemicals and emissions released by CITGO. The Louisiana Fourteenth Judicial District Court found in favor of thirty-four plaintiffs. CITGO then appealed the judgment awarding damages to twenty-two plaintiffs based on causation and duration of damages. 

    The first of several issues brought to the Court of Appeal in this case involved causation. In toxic tort cases, the plaintiff must establish both general and specific causation. See Berzas v. Oxy USA, Inc., 699 So.2d 1149 (La. Ct. App.1997). General causation asks whether a substance can cause a particular injury or condition to the public. Specific causation asks whether a substance caused the individual’s injury. See Knight v. Kirby Inland Marine, Inc., 482 F.3d 347 (5th Cir. 2007). 

    CITGO asserted that expert testimony was necessary to prove both types of causation in toxic tort cases. The Court of Appeal found that the plaintiffs did provide expert testimony that established both general and specific causation. The plaintiffs did so through the testimony of an occupational and environmental health physician and epidemiologist, a certified industrial hygienist, a physician of general medicine and occupational and environmental medicine, and a board-certified physician in family practice. 

    The next issue presented in this case involved exposure to slop oil. CITGO’s Material Safety Data Sheet stated that breathing the gas or vapor from slop oil may impact health, causing significant nose, throat, respiratory tract, and lung irritation, respiratory paralysis, nervous system depression, or even death. Additionally, it may cause eye irritation, skin irritation, lung damage, or intestinal upset if ingested. One of the plaintiffs’ expert witnesses demonstrated that even short periods of exposure led to detrimental health effects. 

    The Court of Appeal found that the District Court was provided with significant circumstantial evidence that linked the plaintiffs’ exposure to CITGO’s spills. The District Court judge also took into consideration the plaintiffs’ pre-existing conditions exacerbated by their exposures. The Court of Appeal found no manifest error on the part of the District Court in finding that the plaintiffs did establish causation between their exposure to slop oil and their subsequent symptoms.

    The third issue was related to the exposure to hydrogen sulfide and sulfur dioxide air release. According to a CITGO chemical engineer and investigator, hydrogen sulfide was released by both the slop oil spill and the submerged stacks. The District Court heard further testimony that these chemicals resulted in serious health concerns for those exposed to a certain concentration. The Court of Appeal found that the plaintiffs who claimed exposure to the chemical releases were all within a few miles of one another. Therefore, each of the plaintiffs were successful in proving a causal link between their injuries and their exposure to the two chemicals.

    Next, CITGO asserted the District Court erred in awarding damages to the plaintiffs for symptoms lasting longer than the durations to which their medical experts testified. Under Louisiana law, however, it was within the District Court’s discretion to consider the testimony of each plaintiff when assessing general damages, as the relevant injuries do not have common denominators and must be considered on a case-by-case basis. See Glasper v. Henry, 589 So.2d 1173  (La. Ct. App. 1991). The Court of Appeal emphasized the law that the trier of fact can accept or reject an expert’s findings or conclusions. La. C.E. art. 702. 

    This case involved many complicated concerns and assertions involving dangerous chemicals and several plaintiffs. With such lawsuits, it is crucial to hire an experienced lawyer to help find trusted experts and strategize the best course of action. 

    Additional Sources: EMMA BRADFORD, ET AL. VERSUS CITGO PETROLEUM CORPORATION, ET AL. 

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on the CITGO disaster: Workers Injured During a 2006 Calcasieu Parish Oil Spill Finally Compensated

  • An Examination of Interlocutory Appeals and Collateral Order Doctrine

    In April 2010, an offshore drilling rig, the Deepwater Horizon, exploded and sank into the Gulf of Mexico. Eleven workers died and crude oil from the well spilled into the Gulf for months after the accident. The result was a mass of litigation involving multiple defendants. In order to deal with the extensive facts and individuals involved in this case, like many other cases, the parties can appeal just one issue of the case if the lower court denies or grants a judgment on that particular issue.

    Normally, a decision must be a final one in order to be appealed. That generally means that the case has concluded and the lower court has rendered a judgment. That way, the appeals court considers all of the facts involved, but can still allow the lower court to do most of the fact analysis. However, there are some occasions where an appeal on just one issue is allowed. This is known as an interlocutory appeal, and it falls under the collateral order doctrine. The collateral order doctrine assumes that some decisions are “final in effect although they do not dispose of the litigation.”

    In order to use the collateral order doctrine, the lower court must have 1) conclusively determined the disputed question, 2) resolved an important issue that is completely separate from the final decision in the case, and 3) the issue must also be effectively unreviewable on appeal in a final judgment. “Effectively unreviewable” means that the court of appeals will have no way to review the decision of the lower court once the lower court makes a decision on this particular issue. Generally, if the decision could be appealed in some other way than the interlocutory appeal, then the court will not use the interlocutory appeal.

    In the oil spill case, parties assumed that one worker in particular held a great deal of information because he was the BP Well Site Leader on duty aboard the rig at the time of the accident. However, the Site Leader had an undisclosed medical condition that prohibited him from testifying or answering written questions. The Site Leader explained his medical condition to the judge on two separate occasions, but did not disclose the information to the parties.

    Since the parties believed that he was such a valuable witness, they really wanted to obtain information from him. As such, another judge ordered an independent doctor to examine him and ordered the Site Leader to produce his medical records to the independent doctor. The Site Leader protested because he was concerned about sharing his personal information. This order is a discovery decision, and discovery decisions are appealable after the final decision of the court based on the use of inadmissible evidence.

    One of the Site Leader’s major arguments, however, was that releasing his personal medical information would cause a great deal of harm to him personally, and there is no method on appeal to reverse that type of harm. Nonetheless, the court determined that district courts can “burden litigants in ways that are only imperfectly reparable by appellate reversal of the final district court judgment.” Therefore, even though there may be harm that cannot be reversed for the Site Leader, the court will still allow the medical information to come in because the final verdict could change on appeal if the information is removed later. To use another example, the court explains that even if the information is privileged, that does not make it appropriate for an interlocutory appeal.

    The court only briefly considered the rights of the Site Leader and his concern about protecting his personal information. In that discussion, they explain that they weighed the costs of sharing his information with the benefits of having his testimony at trial and determined that the benefits outweighed the costs.

    As result, the court determined that it could not use the collateral order doctrine and that the interlocutory appeal was inappropriate. Therefore, the court dismissed the appeal and allowed the bulk of the case to continue in the lower court.

    Civil procedure issues can be a delicate balance between protecting the case and protecting the individuals involved in the case.

    (more…)

  • Louisiana’s Act 312 and its Impact on the Environment and Oil Exploration

    La. R.S. 30:29 (“Act 312”) was in enacted in 2006 and became effective in June of that year. Act 312 provides a procedure for the remediation of oil field sites as well as oil exploration and production sites. Generally, remediation is “the action of remedying something, in particular of reversing or stopping environmental change.” Before the Louisiana legislature enacted Act 312, most remediation requirements were through private party contracts; therefore, Act 312 did not change the normal trial procedures established by the Louisiana Code of Civil Procedure.

    The Louisiana Supreme Court recently discussed Act 312 at length, explaining what it did change, in a case involving the Vermilion Parish School Board. The Court explained that Act 312 was enacted because of serious concerns with the state of the land and ground water after an area was used for oil exploration and production. Parties would use the land and ground water under a mineral lease for several years, and leave the property in terrible shape by the time that they were done. Mineral leases allow the parties to contract for only the minerals or the potential oil that is located on that property. The party with the mineral lease, then, does not rent the entire property, but just the ability to find minerals or oil within or upon that property.

    Before Act 312, parties could still sue if one party left the land in terrible shape. Occasionally, however, it does not make sense economically to force a party to fix the land they damaged. Instead, the renting party would have to give the “landlord” the difference between the value of the land when they received it and the value of the land when it was returned after the lease, under a tort law theory. However, the person who owned the land, the “landlord,” was not required to use the funds to fix damage done to the land. As a result, property that had serious environmental problems often went without remediation because the landlord was not required to fix it. This creates health and safety concerns for the general public.

    When parties file under Act 312, a notice is sent to the Louisiana Department of Natural Resources, Commissioner of Conservation (“DNR”) and the attorney general. The court cannot issue a judgment unless this notice is filed. After the notice is filed, the DNR and the attorney general can intervene in the case if they so choose; they also retain the ability to bring an independent action through civil or administrative means. Then, the matter proceeds to trial as any normal case would.

    At the trial, the fact finder will determine if there actually is any environmental damage and whether the defendant or defendants were responsible for that damage. If the fact finder finds that there is environmental damage and the defendant is responsible, then the defendant is required to form a “remediation plan.” The remediation plan is submitted to the court for approval; the plaintiff is allowed to submit a suggested remediation plan to the court as well.

    Then, the DNR will hold a public hearing on the submitted remediation plans. The DNR will then determine the most feasible plan to accomplish the remediation of the environmental damage, keeping the health, safety, and welfare of the public at large in mind. After they approve the plan, the plan is sent to the court for further review. Within a certain time frame, parties can submit alternations, comments, or new plans to the court during this time as well. Unless the parties prove that another plan is more feasible, the court will allow the plan approved by the DNR to move forward. In addition, the court will determine how much of the damages amount will be required to be used exclusively for remediation. Then, the legally responsible parties will deposit funds into the court’s registry for remediation purposes.

    One of the many issues in the case involving the Vermilion Parish School Board was whether private parties could seek additional damages apart from the required remediation funds. The Court determined that Act 312 specifically provided that private parties would not be limited by the remediation plan. That is, if they wanted to seek damages beyond what would be required to correct the environmental damages, such as punitive damages (damages that are meant to punish the offending party), then Act 312 did not limit them from doing that.

    The Berniard Law Firm specializes in oil claims, including their effects on the environment. If you have questions about Act 312 or think your mineral lease has been violated, contact The Berniard Law Firm today.