Louisiana and Katrina Litigation Issues
Raw Oysters
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What do oysters eat?
Hepatitis A - traditional
 Liver disease
 some die
 some have chronic liver disease
 many of those get liver cancer
vibrio vulnificus - the new threat
 acute liver disease and failure
The Oyster Industry
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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?
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.
Where does it have to be posted?
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?
The Claims
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What is the plaintiff's negligence theory against
the state?
What is the state's defense?
How does plaintiff attack this defense?
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 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. "
The Sanitary Code
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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?
Court's Analysis
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What case did the court adopt as a standard?
How do you use that standard in this case?
Does this violation put people at real risk, or is it
just technical?
Was the restaurant also liable?
 Why?
 Bad oysters or bad warning?
St. Marks - redux
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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 does the public assume from government
inaction?
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?
 How would you need to know to tell if the state
could be liable for not closing a bed?
Graci v. United States, 456 F.2d 20 (5th Cir.
1971)
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Where was the flood?
What caused it?
Which Corp project is being attacked?
What was the purpose of this project?
Why is it inherently risky?
Flood Control Act of 1928
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What happened in 1927?
What are the immunity provisions and what do
they apply to?
Why did Congress provide this immunity?
Court's Analysis
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Did the Flood Control Act of 1928 apply in this
case?
What standard would you apply in determining the
government's liability?
What is the government's main defense?
Florida East Coast Railway Co. v. United
States, 519 F.2d 1184 (5th Cir. 1975)
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What was the purpose of the project?
Was the flooding due to levee failure?
What was the ruling as to the Corp?
What was the role of the levee district?
Did it share in the federal immunity?
Central Green Co. v. United States, 531
U.S. 425 (2001)
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Even if the project has a flood control purpose,
the Act does not grant immunity if the damage
was not related to a flood.
So, if they drop a load of dirt on your house while
building the levee, do they have to pay?
Levee Issues in Katrina
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What are the negligence claims against the Corp?
Against the levee district?
What are the Corp's immunity claims?
 Are any of the damages not covered by the
Flood Control Act?
 What are the purposes of the canals?
What are the Corp's discretionary authority
defenses?
Saden v. Kirby, 660 So.2d 423 (La. 1995)
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New Orleans Sewerage and Water
 2 big pumps, one little one
 underground power line for big pumps
 generator to run one big pump
 power line for big pumps went down
 was still down when flood occurred 3 months
later - finally fixed 6 months after the fault
Was this negligence?
Plaquemines Parish Government
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Build an emergency dam to prevent water from
running into their parish
Found that this did not cause damage because
the water had stopped rising before they built the
dam
Was this a negligence claim at all?
 What you have argued?
Pumps in Katrina
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Why are there pumps in New Orleans?
Why did they shut down the pumps during
Katrina?
What is the city's Berkovitz's defense for shutting
down the pumps?
What facts raise the specter of Saden?
Flood Insurance Digression