Tort Claims in Louisiana

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Tort Claims in Louisiana
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Raw Oysters

• What do oysters eat?
• Hepatitis A - traditional
• Liver disease
• some die
• vibrio vulnificus - the new threat
• acute liver disease and failure
• various other nasty vibrios
• This is why God made deep fat fryers

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The Oyster Industry and Warnings

• Did they support the reporting regulations?
• What was their concern?
• What would you tell them as a products liability
  lawyer?
• How did their position affect the final form of
  the law?
• What should it really say?
• Is this like fugu - puffer fish - sushi?

4
State Warning

• THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW
  SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN
  PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF
  THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE
  DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY
  COOKED.

5
Where Does the Warning Have to be Posted??

• Section 23006-4 of the Sanitary Code requires
  that all "establishments that sell or serve raw
  oysters must display" a prescribed warning "at
  point of sale." The establishment has discretion
  in determining what method may be used to convey
  the warning because the warning can be conveyed
  by a sign, menu notice, table tent or other
  clearly visible message.
• What is the critical language?

6
Gregor v. Argenot Great Central Insurance Co.,
851 So.2d 959 (La. 2003)

• What happened to plaintiff?
• Preexisting illness?
• What if he did not have a preexisting illness?
• Where was the sign posted?
• Where did plaintiff eat?
• Did he see the sign?

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The Claims

• Who did the plaintiff sue?
• What was the comparative fault assessment?
• What is the plaintiff's negligence theory against
  the state?
• What is the causation issue?
• Why was DHH assessed so much fault?
• What is the state's defense?
• How does plaintiff attack this defense?

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State Immunity

• Sovereign immunity was abolished
• How does this change the construction of the
  immunity provision as compared to the
  construction of the FTCA?
• The Discretionary Authority Statute
• "Liability shall not be imposed on public
  entities or their officers or employees based
  upon the exercise or performance or the failure
  to exercise or perform their policymaking or
  discretionary acts when such acts are within the
  course and scope of their lawful powers and
  duties. "

9
Court's Analysis

• The Court's use of Berkowitz is confusing.
• It rejects the Fowler's court's reliance on
  Berkowitz because the LA statute is different
• It then appears to use an analysis that is
  consistent with Berkowitz and other FTCA cases in
  its resolution of the case
• How is this case like Berkowitz?
• What is the role of the regulation?
• How is the agency arguing that the reg does not
  apply?

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What was the Real Negligence of DHH?

• Did it really allow inspectors to decide what
  point of sale meant?
• What does the court assume - probably correctly -
  about what the inspector did?
• What was the negligence by the department?
• Was the restaurant also liable?
• Bad oysters or bad warning?
• How did the court modify the allocation of fault?

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Public Health Risks

• Does the health department have a duty to warn
  about risks it knows of?
• What if it warns physicians, but not the public?
• Should it be liable for not abating a risk to the
  public?
• What about testing the oyster beds?
• What did the health department find about the
  origin of the oysters in this case that should
  worry you?

12
Hepatitis in Bathhouses

• Data from health studies in the mid-1970s showed
  a huge risk of hepatitis b in bathhouses
• Should the health department have warned the
  public?
• Should they have closed down the bathhouses?
• What about AIDS in the bathhouses?
• What if the statute says the government shall
  protect the public?
• What does the public assume from government
  inaction?