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Tort Claims in Louisiana

Tort Claims in Louisiana. 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. The Oyster Industry.

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Tort Claims in Louisiana

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  1. Tort Claims in Louisiana

  2. 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

  3. The Oyster Industry • 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. • Where does it have to be posted?

  5. The Sanitary Code • 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?

  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?

  7. The Claims • Who did the plaintiff sue? • What was the comparative fault assessment? • Why was DHH assessed so much fault? • Why did the Supreme Court reduce it? • What is the plaintiff's negligence theory against the state? • What is the state's defense? • How does plaintiff attack this defense?

  8. 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 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 • What federal case did the court adopt as a standard? • What was the real negligence of DHH? • Does this violation put people at real risk, or is it just technical? • Was the restaurant also liable? • Bad oysters or bad warning?

  10. 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 would you need to know to tell if the state could be liable for not closing a bed?

  11. Bathhouses - redux • 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 if the statute says the government shall protect the public? • What about the bathhouses that are still open? • What does the public assume from government inaction?

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