Tort Claims in Louisiana
Raw Oysters
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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
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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?
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State Warning
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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.
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Where Does the Warning Have to be
Posted??
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Section 23:006-4 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?
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Gregor v. Argenot Great Central Insurance
Co., 851 So.2d 959 (La. 2003)
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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
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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
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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. "
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Court's Analysis
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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?
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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
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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?
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Hepatitis in Bathhouses
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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?
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