Welcome to the law firm of Huber, Slack, Thomas & Marcelle, LLP. Our firm is comprised of lawyers with experience litigating complex civil and criminal cases throughout the Gulf South.
Our lawyers have tried hundreds of cases—from district courts to federal United States Circuit Courts of Appeal —and represent a broad spectrum of expertise and perspectives. While we’ve litigated complex civil and criminal cases—including large class-actions —we never forget who is at the heart of our work: our clients. And so, we’re committed to providing counsel that’s clear, client-centered, and communicative.
A coalition of 21 states, including Louisiana, sued the U.S. Department of Labor Tuesday over a new rule that would make about 4 million higher-earning workers eligible for overtime pay, slamming the measure as inappropriate federal overreach from the Obama administration.
“Once again, the president has circumvented Congress and attempted to legislate through executive mandate. Like Obamacare before it, this latest overreach will force employers to hire less people and cut hours of their existing workers,” Louisiana Attorney General Jeff Landry said in a statement the Republican posted on his website. “This red-taped bureaucratic edict will especially hurt the Louisiana workforce in the education, retail, government, health, hospitality and professional service industries. For their sake and the sake of federalism, I have joined attorneys general from across the country to stop this job-killer.”
Republican Nevada Attorney General Adam Laxalt filed the lawsuit in U.S. District Court in Eastern Texas, urging it to block implementation before the regulation takes effect on Dec. 1. Laxalt, a frequent critic of President Barack Obama’s policies, said the rule would burden private and public sectors by straining budgets and forcing layoffs or cuts in working hours.
The measure would shrink the so-called “white collar exemption” that exempts workers who perform “executive, administrative or professional” duties from overtime and minimum wage requirements.
It would more than double the salary threshold under which employers must pay overtime to their white collar workers. Overtime protections would apply to workers who make up to $913 a week, or $47,476 a year, and the threshold would readjust every three years to reflect changes in average wages.
“This long-awaited update will result in a meaningful boost to many workers’ wallets, and will go a long way toward realizing President Obama’s commitment to ensuring every worker is compensated fairly for their hard work,” the Labor Department said in May when it announced the new rule.
Business groups say the changes are too much and too fast, especially as states continue to recover from the recession.
Other plaintiffs include Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin.
ADVOCATE STAFF AND WIRE REPORT, originally appearing SEP 20, 2016.
ALLIANCE, La. (AP) – The oil industry has left a big footprint along the Gulf Coast, where a Delaware-sized stretch of Louisiana has disappeared.
But few politicians would blame Big Oil for ecosystem abuse in a state where the industry employs up to 300,000 people and injects $73 billion into the economy.
Following the lead of Gov. John Bel Edwards, Louisiana political orthodoxy is being turned upside-down as prominent leaders of both parties join lawsuits seeking billions of dollars for environmental improvement projects.
Down in the pancake-flat bayou, it’s not easy to see what made so much of the coast sink into the Gulf of Mexico.
Even when you climb onto the levee, buzzing with dragonflies, that keeps the old delta farming community of Alliance from being swallowed, all that’s visible is marshland, stretching toward a green horizon.
But land’s end is much closer now, and what remains has been disrupted. Access canals carved by the oil industry run straight as arrows, rusting signs warn of underwater pipelines and abandoned drilling platforms sink into the muck. As the Alliance refinery billows with fumes, the surrounding pastures are slowly sinking.
Louisiana remains the nation’s second-largest crude oil producer and oil refiner after Texas, but the industry has been on the defensive since Edwards, a 49-year-old lawyer and Democrat, ended eight years of Republican leadership last November.
Publicly, he joined a campaign by local governments suing to hold the industry at least partly responsible for Louisiana’s loss of 1,900 square miles of coast since the 1930s. Privately, he pushed for a pre-trial settlement to resolve all their claims.
“Our coast is in crisis,” Edwards wrote in a letter to oil executives after their initial meeting in May, calling for an “amicable solution” to avoid years of litigation.
He was soon seconded by New Orleans Mayor Mitch Landrieu, whose family of Louisiana Democrats long supported Big Oil. Landrieu accused former state leaders of allowing the industry to cripple “in a generation or two what Mother Nature built in 7,000 years,” and said the damage has spread “through the marsh like an infection.
In July, Vermilion Parish, deep in Louisiana’s “Oil Patch,” became the fourth local government to file claims against Exxon, Shell, Chevron and dozens of other corporations. The agency overseeing flood protection for New Orleans also is suing. Republicans have joined in, from GOP-led parishes to Attorney General Jeff Landry.
“It’s absolutely new,” pollster Bernie Pinsonat said. “The oil companies are taking it seriously because you’re talking about billions and billions of dollars.”
This political shift can be traced to Hurricane Katrina, which shocked the nation and exposed the dire state of ecology in the Mississippi River’s delta. Katrina alone tore up about 60 square miles of marsh around New Orleans in 2005.
At issue are oilfields like the one in Alliance, in Plaquemines Parish, where oil companies are accused of routinely abandoning open waste pits, carelessly dumping toxic brine and oilfield waste onto the marsh and interrupting the delta’s ebbs and flows by dredging thousands of miles of canals that weren’t filled back in.
The oil industry blames the Army Corps of Engineers, whose levees deny the delta its natural deposits of silt and sand while channeling the Mississippi River out to sea. It also blames the clear-cutting of coastal forests more than a century ago, shipping channels that have sliced up the delta and even the invasive nutria, an oversized marsh grass-eating rodent.
“It’s just such a vague attempt by the plaintiffs to throw a blanket over an entire industry and hold it singularly responsible for a problem that’s got multiple causes,” said Robert Meadows, a Chevron lawyer.
The legal case requires analyzing thousands of coastal drilling permits and oil leases, putting prices on the unmitigated damage caused by each company, and then dueling over demands for compensation.
Scientists generally agree that between 30 percent and 40 percent of wetlands loss is attributable to drilling and its associated activities, said John Day, a Louisiana State University scientist and expert on the delta’s problems.
“The factual basis is terribly strong: If I were a plaintiffs’ counsel, I’d put on a five-day slide show narrated by geologists and hydrologists and wetlands scientists, and it would be devastating,” said Oliver Houck, an environmental law professor at Tulane University in New Orleans.
Geologist Sherwood Gagliano, who has studied the coastal crisis since the 1960s, contends that extracting millions of barrels of oil and gas from below the surface has caused vast swaths of the coast to sink.
“It’s like an Atlantis oilfield,” Gagliano said. “There are well-heads sticking out of the water. Abandoned production platforms now completely submerged. Oilfields developed on land are now under 5 or 10 feet of water. And that is happening all the way across the coast.”
But F. Rivers LeLong Jr. calls the lawsuits a hypocritical “shakedown cruise” by the same governments that have long profited from drilling.
“They aren’t the good guys any more than the oil companies were,” said LeLong, whose father started the Kenmore Oil Co., which is named as a defendant because it worked the Alliance field before going out of business in 1973. “To act as though they were victims in the process is a fairly laughable characterization.”
What’s gone is gone, but the politicians hope to keep hundreds of other square miles from disappearing. They’re envisioning huge projects to divert sediment flows from the Mississippi River and build up marsh flats, barrier islands, ridges and swamp forests.
It would cost between $50 billion and $100 billion, and Louisiana doesn’t expect to have more than $25 billion to spend.
Suing oil companies “is probably the only new potential source of revenue,” said Mark Davis, who directs Tulane University’s Institute on Water Resources Law and Policy. “Before you tax anybody, you’re going to be required, I think, to show that you’ve tried every other alternative. Is there anybody who owes dollars that have not been collected for this purpose?”
Originally reported by Cain Burdeau of the Associated Press on August 5, 2016.
The U.S. Food and Drug Administration said it will require a new “black box warning” label for Essure, an implantable permanent contraceptive device. A black box warning in the labeling of products is “designed to call attention to serious or life-threatening risks,” according to the FDA website.
Monday’s announcement comes after more than 5,000 women filed grievances with the FDA between November 2002 and May 2015, complaining of unintended pregnancies, miscarriages, stillbirths and severe pain and bleeding after an Essure implantation.
Approved by the FDA in 2002, Essure is a permanent form of birth control in which a coil is non-surgically placed into a woman’s fallopian tubes. Scar tissue is supposed to form around the device to prevent sperm from reaching eggs and fertilizing them, thus preventing pregnancy.
The FDA also called upon Bayer, which makes and markets Essure, to conduct surveillance that will assess “risks of the device in a real-world environment,” and said the agency will use the results of that study to “determine what, if any, further actions related to Essure are needed to protect public health.” The company is required to follow more than 2,000 women for at least three years. The study will not be limited to women being implanted with Essure but will be comparing women with Essure to women who select other methods of sterilization, such as surgery.
The FDA expects Bayer to submit a study protocol within 30 days and the company is required by law to begin the study within 15 months, according to Dr. William Maisel, FDA deputy director for science and chief scientist at the agency’s Center for Devices and Radiological Health. If Bayer does not, the FDA can declare the device misbranded.
The company will also be required to submit interim reports on the study including data and analysis. The FDA expects the first such report will be available within a few months of when the trial begins.
When reached for comment, Bayer provided the following response: “Essure is an important permanent birth control option with a positive benefit-risk profile. Bayer will continue to work closely with the FDA to support the continued safe, effective and appropriate use of Essure.”
‘The FDA truly failed these women’
Reaction to the FDA announcement was swift and uncomplimentary.
“We are outraged that it appears as if the FDA is going to leave Essure on the market,” said Essure Problems, a support group for women who say they have been damaged by the device. “Take the device OFF the market and revoke PMA [premarket approval]. Do not continue to allow more women to be harmed.”
“It’s unbelievable that it took the FDA since September to make just two recommendations with no enforcement measures and ask the manufacturer to perform another study while leaving Essure on the market,” said Rep. Mike Fitzpatrick, a Republican from Pennsylvania who has called for the FDA to revoke its approval of Essure. “It’s been done. The evidence is all there: Tens of thousands of injured women and hundreds of fetal deaths.”
“I feel as if the FDA truly failed these women,” said Madris Tomes, a former FDA contractor whose business, Device Events, analyzes FDA public data. “My hope was that they would recommend a recall. How can we trust the FDA to make good decisions regarding safe and effective devices?”
Last week, Fitzpatrick and Tomes provided the FDA with raw data showing a total of 303 fetal deaths among women who used the device. The FDA said Monday that it put the number at 294. Previously the agency said that number was only five.
Tomes said she found the additional cases by using a different method of analysis than the FDA.
“Most of the story of what happened and all the side effects, those are going to be in the narrative,” Tomes said. “So we searched for keywords in that narrative that women and their doctors would use, such as fetal death, miscarriage, still birth, stillborn and ectopic pregnancies.”
“I actually think the 303 number is conservative,” Tomes added, “because some of these women have had multiple miscarriages, they’ve had multiple pregnancies, after confirmation, but I only counted them once.”
Fitzpatrick said, “I believe Congress must.”
He vowed to present a number of legislative actions to the House and Senate, including working to block government agencies, such as the U.S. Department of Veterans Affairs, from purchasing the device; introducing new legislation that would remove “blanket civil liability protections” that keep women from suing Bayer; and seeking passage of an act that would revoke Essure’s FDA approval.
In its press release, the group Essure Problems also called for Congress to act. “While we continue to encourage women to file their adverse event reports with the FDA, our focus will be on Congress and the E-Free Act. We are disappointed but not surprised the FDA has once again chosen to side with industry rather than protect patients of a failed medical device.”
“The FDA continues to believe that this should remain available,” Maisel of the FDA said Monday.
FDA requires new checklist
In addition to the black box warning, the FDA is requiring a patient decision checklist be signed by patients and doctors before the device is implanted. This will include agreeing to a test three months after implantation to make sure the device is properly in place and functioning as intended. A checkup at that time is already recommended by the device maker, Bayer.
In the past, Bayer has said the device is 99% effective at permanently preventing pregnancy. It blames the unintended pregnancies on patient error, suggesting patients may have been lax in following up with their doctors for three-month checkups to make sure the device was working, or lax at using backup birth control during the first three months.
In September, the agency held a hearing in which some of those who filed complaints described what they went through. The FDA also heard from Bayer and health care providers about the existing body of safety data for Essure.
On a call with reporters Monday, Maisel said the agency review of all available information on the the device, which was conducted to support Monday’s announcement, also assessed possible clinical trial misconduct in the original clinical trial data. However, he said no misconduct was found and any allegations of that are unfounded.
The FDA said its actions will increase understanding of the risks associated with the device for patients and doctors.
“They also reflect our recognition that more rigorous research is needed to better understand if certain women are at heightened risk of complications,” Maisel said.
The new warning label requirement announced Monday has a 60-day comment period to incorporate feedback from patients and the industry before finalizing it and adding it to the packaging.
Original story by CNN.
Jacqueline Fox passed away in the fall, but her voice recently came alive in a St. Louis courtroom.
In an audio deposition, the Birmingham, Ala., native who died at age 62 recounted 35 years of using Johnson & Johnson products containing talcum powder, including the manufacturing giant’s trademark baby powder and its Shower to Shower body powder. Fox had used them for feminine hygiene, and she believed they were what ultimately killed her.
More than three years ago, she was diagnosed with an ovarian cancer that proved fatal. Fox was among more than 1,200 women from across the country who were suing Johnson & Johnson for failing to warn consumers of the dangers associated with talc, the mineral used in baby powder.
On Monday, her case became the first in which monetary compensation was awarded.
A Missouri jury has ordered Johnson & Johnson to pay Fox’s family $72 million in actual and punitive damages. One of Fox’s lead attorneys, Jim Onder, told the St. Louis Post-Dispatch that $31 million will go to the Missouri Crime Victims’ Compensation Fund.
The suit’s other defendant, talc producer Imerys Talc America, has not been faulted.
“We have no higher responsibility than the health and safety of consumers and we are disappointed with the outcome of the trial,” Johnson & Johnsonsaid in a statement Tuesday. “We sympathize with the plaintiff’s family but firmly believe the safety the cosmetic talc is supported by decades of scientific evidence.”
Johnson & Johnson is expected to appeal the verdict. The award — which is made up of $10 million in compensatory damages and $62 million in punitive damages — will probably be lessened in appellate courts, Stanford University law professor Nora Freeman Engstrom told the Associated Press.
According to the St. Louis Post-Dispatch, one male juror and nine female jurors voted in Fox’s favor; two men voted against her.
One juror, 50-year-old Jerome Kendrick, told the Post-Dispatch that he was swayed by internal company memos presented at trial.
“They tried to cover up and influence the boards that regulate cosmetics,” he said, adding “They could have at least put a warning label on the box but they didn’t. They did nothing.”
One memo from a company medical consultant likened ignoring the risks associated with “hygenic” talc use and ovarian cancer to denying the link between smoking cigarettes and cancer — in other words, “denying the obvious in the face of all evidence to the contrary,” the Associated Press reported.
Another document noted that sales were declining as more people became aware of the health risks, and included strategies for making blacks and Hispanics the highest users of talcum powder, Onder said, as the Post-Dispatch reported.
Fox was African American.
The New Jersey-based company faces many more lawsuits related to talcum products it has made household names.
Marvin Salter, Fox’s son, told the AP that using Johnson & Johnson “became second nature, like brushing your teeth.”
But a routine act eventually became insidious, Fox’s attorneys argued.
A pathologist found that Fox’s ovaries were inflamed from talc, which then turned into cancer.
While studies have associated regular talc use with ovarian cancer for decades, the American Cancer Society notes that there is no definitive research on whether asbestos-free talc — the kind widely used in consumer products — causes ovarian cancer:
Findings have been mixed, with some studies reporting a slightly increased risk and some reporting no increase. Many case-control studies have found a small increase in risk. But these types of studies can be biased because they often rely on a person’s memory of talc use many years earlier.
Officials in Florida, Alabama, Mississippi and Louisiana announced an $18.7 billion settlement with BP on Thursday that resolves years of litigation over the 2010 Gulf of Mexico oil spill.
According to Louisiana Attorney General Buddy Caldwell, more than $6.8 billion will be paid to the state of Louisiana. He said $5 billion would be for natural resource damage, $1 billion would be for economic losses, $787 million in Clean Water penalties via the Restore Act, and he said Louisiana would receive total reimbursement for attorneys’ fees and other expenses.
The settlement announcement comes as a federal judge was preparing to rule on how much BP owed in federal Clean Water Act penalties after millions of gallons of oil spewed into the Gulf. Individual states also were pursuing litigation. Most of those penalties were to be distributed among the states for environmental and economic restoration projects along the Gulf Coast.
The settlement money will be used to resolve the Clean Water Act penalties; resolve natural resources damage claims; settle economic claims; and resolve economic damage claims of local governments, according to an outline filed in federal court Thursday morning.
In arguing against such a high penalty, BP has said its spill-related costs already were expected to exceed $42 billion – even without the Clean Water Act fine. It’s also unclear how much BP will end up paying under a 2012 settlement with individuals and businesses claiming spill-related losses.
Costs incurred by BP so far include an estimated $14 billion for response and cleanup and $4.5 billion in penalties announced after a settlement of a criminal case with the government.
In 2012, BP reached the settlement with plaintiff’s lawyers over economic and property damage claims arising from the spill. In its first-quarter earnings report for 2015, BP said it could estimate at least a $10.3 billion cost. But it also stressed that the cost could be higher, depending on how many legitimate claims were filed by a recently passed deadline.
Earlier this year, a federal judge in New Orleans concluded the third phase of a civil trial pitting the oil giant against the federal government. He had already made two key rulings: that BP acted with “gross negligence” in the rig explosion that resulted in the spill; and that 3.19 million barrels of oil – nearly 134 million gallons – spewed into the Gulf as a result. BP had appealed both those rulings, which set the stage for the a possible multibillion-dollar Clean Water Act penalty.
Article originally published on WWL 870.