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Farmers file suit claiming saltwater intrusion from damaged Leland Bowman Lock
Source Posted: Feb 7, 2012 9:43 PM by Maddie Garrett
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Roughly 45 Acadiana farmers are filing a lawsuit against a barge company for damaging the Leland Bowman locks in the Mermentau Basin. They are claiming that the damaged locks are letting too much saltwater into their farmland and hurting agriculture.
Crawfish, rice and cattle are all in jeopardy this year because of too much saltwater in the Mermentau basin.
“The saltwater is just damaging the eco-system,” said attorney Joseph Joy, III.
Joy is representing many of the farmers in the lawsuit. He said Canal Barge Company should be held responsible for the damages to property and profits the farmers are facing, after one of its barges struck one of the Leland Bowman gates in September.
“And that’s the problem, every time they open the locks, salt water is rushing in and it’s essentially contaminating everything,” explained Joy.
But you have to ask, is the blame being pointed in the right direction? That’s because the Army Corps of Engineers has said the salinity in the Mermentau Basin was already high before the damage at the locks because of extreme drought conditions.
The Corps of Engineers gave a statement in November, saying while the damaged locks are part of the problem, they aren’t a major factor.
“And a lot of people are trying to blame the damage from the lock on this problem, you had problems before the lock was damaged,” said Chris Accardo, Chief of Operations in New Orleans for the Army Corps of Engineers.
Meanwhile, the damaged gate is supposed to be re-installed in March.
Farmers could seek millions of dollars in damages from Canal Barge Company. The company did respond to the lawsuit, giving this statement:
“We are aware of the lawsuits that have been filed as a result of the incident at the Leland Bowman lock on September 30, 2011, and we take the allegations very seriously. As a Louisiana company, we are aware of the importance of complying with the procedures established by the U.S. Coast Guard and the Corps of Engineers while transiting the lock system. Our preliminary investigation of the matter shows that our vessel followed the applicable Coast Guard navigational rules, Corps of Engineers locking procedures, and the specific instructions of the Corps’ Lock Operator at all times. Because the matter is now in litigation, we cannot offer any further comment at this time, but we will certainly respond to the lawsuits in due course.”
Dead Crawfish in the Atchafalya Basin
Source Posted: May 9, 2010 9:26 AM by Melissa Hawkes
Mike Bienvenu has been fishing for crawfish in the Atchafalya basin, since 1973–but he fears his way of life is coming to an end.
“We used to catch a boat load of crawfish with 150 cages, now we have to run 700 or 800,” Bienvenu said.
It takes so many cages now because there’s no oxygen in the water. He said when he checks traps he often finds dead crawfish.
“The crawfish, the fish…everything suffers, the whole system,” he said.
Bienvenu said the poor water quality can be credited to oil and pipeline companies who started drilling for oil in the basin in the 1960’s.
“They were supposed to return the dirt back into the canal and they never did,” he said.
Joseph “Buzzy” Joy is defending more than 80 fisherman in the case against the oil companies. He says the problem started when companies dug on the bottom of the basin to make room for barges to get through.
“The dredges went in there to dredge the water ways deeper so tug boats and barges could get in to the basin and the drill site at any time of the year,” Joy said.
As they dug, they threw dirt on either side of the waterway creating “spoil banks.”
“Unfortunately when they finished they didn’t take down the spoil banks,” he said.
Now there are dozens of spoil banks left behind. They’re blocking the natural flow of the water throughout the basin, which is causes the crawfish to die.
“It’s about damages, I mean that’s what it’s about,” Bienvenu said. “I mean we lost out for the last 20 years we’ve lost out.”
The case has been moved to federal court, but a trial date has not been set.
Opelousas man wins oilfield case
Monday, May 3, 1999
Article: Opelousas man wins oilfield case
By: Laura Ayo, Staff Writer
Lafayette – Gerry Quirk hopes a $1 million federal judgment he won recently will send a message to area physicians who perform “substandard” independent medical examinations.
“I hope it brings them back to their oath,” Quirk said. “I hope it helps … remind them of why they became doctors – to help people, not just make money.”
Quirk’s experience in August 1994 with Dr. J. Frazer Gaar, an Opelousas orthopedic surgeon acting as an IME, or independent medical examiner, for Quirk’s insurance company, let both parties to federal court in late April.
When a week-long trial ended, a six-person federal jury found that Gaar provided “substandard” care in his total evaluation of Quirk, also of Opelousas.
And the jury awarded Quirk, his wife Rose, and their three sons, now ages 17, 12, and 11, more than $1 million in damages.
Quirk’s attorney, Joseph Joy III, and other Lafayette attorneys said the outcome of the civil case will change the way certain independent medical examiners operate.
“Doctors are going to be a lot more careful when they read MRI or CAT scans,” Joy said. L “When the radiologist says something is wrong, they’ll be more inclined to send out for a second opinion. They’ll spend more time with the person.”
He also believes physicians acting as IMEs will ask patients to come back for follow-up examinations.
“They’re going to be a whole lot more careful to be reasonable and logical in their decisions because if they’re not, they can be sued,” agreed Lafayette attorney Kenneth Dejean, who was also familiar with the case and its outcome, also said the judgment will mean that IMEs will thoroughly examine patients.
“Not all of them, but certain groups of these doctors have gone to untold ends to … give a satisfactory answer to the person paying them,” Dejean said. “This case is going to open IMEs’ eyes and make them realize, ‘I do have a responsibility to this person. If I find something wrong that merits further tests, I need further tests, or if I don’t know, I need to say I don’t know,’ as opposed to dishing out an opinion. It’s a substantial decision.
Quirk had spent 13 years working as a pipe fitter on offshore oil rigs. On June 5, 1993, he injured his back on a job.
Quirk’s treating physician, Dr. Stuart Phillips of New Orleans, recommended surgery for a herniated disc.
But the insurance company that provided employers’ liability coverage for the company Quirk worked for refused to authorize the surgery. The company wanted Quirk to be seen by an independent medical examiner.
The IME, Dr. Clifton Shepperd of Lafayette, said he was not opposed to the surgery,, but would not personally perform the operation at that time, court documents showed.
Because of the conflicting medical opinions, Gray Insurance Co. sent Quirk to Gaar in August 1994, for a second independent medical exam.
Quirk said he tried to tell Gaar about his problems during the exam, which took less than 15 minutes.
“I felt like a car dummy,” Quirk said. “He checked me out, but anything I had to say, he wasn’t interested in. I felt like I was there for him to make his two bits.”
Joy, Quirk’s attorney, said the physician didn’t discuss his findings with Quirk.
But Gaar reported to the insurance company that Quirk’s MRI and CT scans were “within normal limits” for a man of Quirk’s age, that he didn’t need back surgery and could return to work, Joy said.
“When I walk into a doctor’s office, I don’t expect to be treated differently than someone (the doctor) is treating or just seeing once or twice,” Quirk said
During the trial, Joy argued that the insurance company used Gaar’s report to deny treating physician Phillips’ request for surgery And Quirk’s worker’s compensation benefits were terminated.
By December 1995, Quirk was still iin pain and having other medical problems related to the back injury. Phillips declared a medical emergency and performed the surgery.
But Quirk was left with permanent injuries, Joy said, that make him unemployable. When Quirk walks, he bends forward at the waist. Joy argued at the trial that the delay in Quirk’s surgery worsened his condition.
Gaar and his attorney, Marc Judice, did not return phone calls from the Daily Advertiser.
However, court documents outlining Gaar’s defense said Gaar denied all allegations of negligence in the paperwork.
The documents also said Quirk’s insurance company initially denied Quirk’s request for surgery, despite the treating physican’s recommendation in favor of the operation. And the documents said the insurer continued to deny the requests after Gaar examined Quirk and two more physicians supported surgery.
“Further, Dr. Gaar did not participate in the decision of Gray Insurance Co. to either provide or withhold benefits and/or medical treatment of Quirk,” the documents said.
The jury cleared the insurance company of negligence in its administration of medical treatment for Quirk, or for causing his injuries.
Instead, it assessed 100 percent of the fault to Gaar, finding that he provided “substandard care in his total evaluation” of Quirk and that his conduct was “a cause of injury” to Quirk.
“This is a tremendous change of precedent from the past,” attorney Armentor said.
Doctors were ‘insulated’
He said doctors who have done IMEs in the past have been “insulated” from liability because, as an IME and not a treating physician, they are essentially rendering a second opinion.
But the jury’s decision, Joy explained, was based on an instruction by presiding U.S. District Judge Richard Haik, that a physician-patient relationship existed between Quirk and Gaar in the IME setting.
“They’ll have to talk to patients now about what their opinion is and what their recommendation is,” Joy said.
Armentor said the Quirk case was also unique in that several physicians testified for Quirk.
“That just doesn’t happen,” he said. “Doctors protect one another.”
Dr. Michael Heard, another orthopedic surgeon in Lafayette, was one of three physicians who served on a medical review panel in connection with Quirk’s case. The panel decided 2-to-1 Gaar did not fail to meet the appropriate standard of care, according to trial testimony transcripts.
He testified about the panel’s discussions and “concern” the other two doctors expressed about “finding for” Quirk, according to the transcripts.
“In addition to expressing their opinion, I don’t think the disc is ruptured, there was some concern about ruining Dr. Gaar’s reputation,” Heard testified. “Finding against Dr. Gaar, opening Pandora’s box, finding against the doctor, finding him guilty of malpractice. And this was expressed during the panel.”
Heard testified that if the panel found Gaar “guilty,” it would “open Pandora’s box and make all independent medical examiners liable and responsible for their opinions and recommendations,” the transcripts showed.
He said the physicians were worried about setting a court precedent.
“They didn’t want to open this precedent for the IME examiner who they felt was protected no matter what he said, and no matter what bad consequence happened from his opinion and recommendations which is what happened in this particular case,” he testified. “No matter what happens, they’re not liable or responsible.” They have no liability or responsibility. And I felt that was morally wrong.”
For that reason, Heard said he decided to “break the conspiracy of silence.”
“… in this case, I felt that the plaintiff, Mr. Quirk, was not treated fairly because this is a black and white issue,” Heard testified. “The disc was ruptured.”
Heard said he had always found for the doctor during medical reviews until the Quirk case. He also admitted under cross-examination by Judice that IMEs give second opinions and treatment recommendations, rather than treat patients.
Changes hoped for
While many doctors are thorough, Quirk said he hopes his case will prompt changes among those who “get away with quick evaluations.”
“I hope it opens up doctors’ eyes where they take their time to see if patients are in pain, rather than worry about what the insurance company wants,” said Mrs. Qirk, who was awarded $50,000.00 for loss of consortium.
“I hope it opens up insurance companies’ eyes that they can’t hire doctors to give them what they want,” she added. “I’m glad it might help other people in situations like this. … It might not change insurance companies or doctors. But at least patients will know they have more rights than they used to have.”
Although the jury awarded the Quirk family $1,071,000. The amount is subject to a $500,000 cap in connection with the Patient’s Compensation Fund.
Joy said that means his clients, pending the outcome of appeals, should get $500,000 plus the jury’s aware of $126,000 for future medical expenses and interest.
Helicopter crash landing due to tail rotor spider bearing failure, lumbar back fusion, Large settlement
Plaintiff was a passenger in a helicopter which crash-landed in Patterson, Louisiana after having lost tail rotor control. The NTSB and other experts examined the aircraft which was totally destroyed and found that the tail rotor spider bearing failed and was currently under an FAA Airworthiness Directive in connection with specialized maintenance and periodic testing of the bearing due to previous complaints of failure.
Plaintiff originally filed suit against the helicopter operator and Eurocopter, Inc., (Marseilles, France). Toward the end of discovery deadlines, plaintiff and the operator settled. Thereafter, plaintiff and the operator filed suit against the bearing manufacturer, La Réunion Aérienne (Turin, Italy). Shortly before trial, and during depositions in Turin, Italy, La Réunion Aérienne furnished documents that were never produced by the defendant, Eurocopter, Inc. These documents showed that the defendant, La Réunion Aérienne had previously advised Eurocopter, Inc. that the tail rotor spider bearing utilized by Eurocopter, Inc. was a “shelf” bearing and that its continued use in Helicopters posed “. . . a concrete risk of failure”. Due to the failure of Eurocopter to provide complete disclosure and documentation, plaintiff and operator filed a motion to strike the witnesses and defendants of Eurocopter, Inc. The trial Judge struck all expert witnesses scheduled to testify on behalf of Eurocopter, Inc. Shortly thereafter, a confidential settlement was completed with all defendants.
Randy Comeaux v. Tex-Air Helicopters, Inc., et al.
No. CV00-1339-LO, U. S. District Court, W. D. of La
Defect Found in Gas Tanker – Million Dollar Settlement
A leading manufacturer of manholes for aluminum gas tankers settled a product defect suit As part of a larger legal settlement with other co-defendants, Betts Industries, Inc. settled a suit which alleged that a defective manhole as well as three venting devices, and a Betts-patented clamping bond led to explosions when a tank truck rolled in a crash. The accident occurred when the gas tanker truck hit the rear-end of an illegally parked flatbed truck. The driver and passengers of the tanker went off the highway and rolled with the truck. Ensuing explosions caused by leakage in the vents and manhole resulted in serious burn injuries suffered by persons in a number of vehicles.
According to Joseph R. Joy, III, who represented three burn victims, his clients recovered from the owner of the tanker and Betts Industries, Inc. a total settlement of $1.3 million. Joy notes that the settlement with Betts was achieved before trial due to his acquisition of test films produced for the federal government. The test films showed that the Betts devices, as well as most other manufacturers’ vents and manholes, leak during rollovers. This is a violation of the Motor Carrier Safety Act which specifically requires that the integrity of such devices on gas tankers be maintained in rollovers. While no estimates of the number of similarly equipped and thus potentially hazardous tanker was offered by Betts. Joy notes that the expert testified that it uses the Betts devices on all of its tank trucks unless otherwise specified.
Jones Act: General Maritime Law: Excessive weight of object lifted; Duty to provide mechanical aid or additional personnel: Back Injury.
The Fifth Circuit Court of Appeals affirms without opinion a bench award of $272,460, plus 7% interest from the date of trial, for permanent total disability stemming from the back injury sustained by a 37-year-old drilling rig floorhand earning $15,000 per year. The trial court had previously found that the employee’s assigned task of lifting a 135-pound mud pump cover was beyond his individual physical capacity, thus rendering the vessel owner negligent and the vessel unseaworthy; however the employee’s failure to request additional aid was held 30% contributorily negligent.
Plaintiff’s duties as floorhand on a movable drilling rig required that he keep the mud pumps in working condition. While inspecting a clogged pump, he removed its 135-pound cover and injured his back. Plaintiff underwent five myelograms and four surgical procedures, including a laminectomy and disc removal. The injury rendered plaintiff totally and permanently disabled, and he brought a personal injury suit under the Jones Act and general maritime law.
The trial court, relying on the testimony of plaintiff’s bio-engineering expert, found it unsafe for one man to handle a weight of 135 pounds and held that failure to provide plaintiff with sufficient assistance constituted negligence of the vessel owner and rendered the vessel unseaworthy. The trial court stated that “The vessel owner should know what is a safe or unsafe lift rather than leave the safety precautions to the option of each seaman,” the court determined that defendant was “negligent as a matter of law in failing to ascertain that mechanical aids were necessary to perform the task in question, in failing to have aids readily available and in failing to instruct the plaintiff to use them.”
Young v. Diamond M Miller Co., U.S. District Court, Western District of
Louisiana, Docket No. 77-0687; appealed to U.S. Court of Appeals for the Fifth
Circuit, Docket No. 80-3380.
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