Adley’s bill would forbid law clinics at both public and private colleges from suing governmental agencies, individuals and businesses for financial damages or raising constitutional issues. The clinics give college law students real-world experience while working free of charge on behalf of the public.

In the past, the Tulane University law clinic has opposed the oil, gas and utilities sector on issues of environmental regulations and violations.

One has to wonder if Senator Adley’s motives are actually his own or that of his financial backers in the well-heeled energy field. Muzzling free speech and the activities of the well-intentioned law clinics is ill-advised, and smacks of a longtime politico doing the bidding of a powerful industry which does not want inquiries into its dumping of hazardous waste and byproducts into our state’s fragile environment and ecosystems.

Our legislature has a track record of passing legislation that benefits the business community and some of the wealthiest corporations at the expense of rights of injured employees, victims of negligence and hazardous activities without adequate recourse to recover their damages.

For too long personal injury trial lawyers have been the recipients of a well-funded and well-orchestrated public mis-information campaign by insurance and business interests trying to make the ordinary citizen believe the courts are being inundated with frivilous lawsuits which result in higher insurance premiums. The term “frivilous lawsuit” has become synonymous with that of the “tort reform” ilk also backed by big business interests. The truth is, that most of the litigation in this country is between businesses and insurers suing each other, not innocent victims of auto accidents, medical malpractice, defective products, dangerous drugs and medical devices or drunk drivers trying to get their just compensation for their injuries.

As the editors concluded, there is no compelling legal principle on which the new health care law can be successfully challenged. Neither is there any factual or compelling evidence that frivilous lawsuits are clogging our court system. I was taught not to call anyone a foo,l but The Advocate calls this challenge a “fool’s errand”…and I agree. Just look at the real reason for the governor’s support for the lawsuit: Jindal’s call for campaign contributions to support his campaign for reelection and “to continue the fight for our rights against an overreaching federal government”. Now who’s fooling whom?

So why is it that one of the most important sectors of our national economy is one of the least regulated, unaccountable and most profitable industries? Because these insurers are exempt from federal anti-trust laws, and most state insurance departments have little or no control over insurance rates.

Perhaps the most telling fact is how influential these insurers are in Washington D.C. and every state capitol due to the army of well-paid lobbyists and political contributions. They use the threat of their capability of inflicting major damage to a state’s economy so they routinely get what they want legislatively. Rarely do their demands on lawmakers get challenged.

One example happened in West Virginia when all five medical malpractice insurance companies threatened to pull out of the state unless regulatory laws were repealed. The West Virginia legislature promptly caved to the political pressure and repealed the legislation which they had enacted to protect W.V. consumers. As Joanne Doroshow of the Center for Justice & Democracy recently lamented, “Doctors complain of price-gouging by their medical malpractice insurers but do not join with consumer groups to push for industry regulation.” Apparently the medical profession would rather blame the legal profession and support “tort reform” instead. They ignore the insurance industry’s own admission about the lack of savings from “tort reform”. The vice president of the American Insurance Association admitted: “The insurance industry never promised that tort reform would achieve specific premium savings.” Despite that we are constantly inundated with “tort reform” rhetoric from lawmakers and their industry backers instead of taking on the insurance companies directly.

All of us- doctors tired of high medical malpractice premiums, business owners sick of paying exorbitant property-casualty insurance premiums, homeowners who face annually increasing rates despite never having made a claim- should target the real culprit in this ever-growing problem: the insurance industry. We should urge our national lawmakers to revoke their anti-trust exemption and face competition like every other industry. We should pressure our state legislators to enact common sense regulations and actually enforce them. No one expects the insurance industry not to make a profit. What we should not expect is for that profit to be on the backs of the consumers who only want and deserve affordable insurance.

A recent Senate Special Committee on Aging report demonstrated the extent of Forest’s Lexapro marketing plan. Federal prosecutors in Boston have filed a lawsuit against Forest claiming the company illegally marketed Lexapro as well as a related antidepressant Celexa for use in children and paid kickbacks to doctors to induce them to prescribe them to children. Records indicate Forest is among the top five drug manufacturers, along with Pfizer, Eli Lilly, Novartis, and Merck in payments of money and food to doctors who prescribe antidepressants. Sen. Herb Kohl (D-WI), the chairman of the Committee on Aging is investigating these marketing tactics used by the pharmaceutical industry.

Why should we care? For example: a month’s supply of 5 mil tablets of Lexapro costs on average $87.99 compared to just $14.99 for a month’s supply of a generic version. Do the math and it’s easy to see who’s getting taken for a ride. With the majority of Americans demanding health care reform, apparently the profitable ride the drug companies have been enjoying hopefully will soon come to an end.

It was definitely a work weekend, and it was a weekend of being a servant for the Lord. By the time we arrived in Ruston on Thursday night, it was time to hit our bed which was located in one of the oldest dorms at Louisiana Tech. The air conditioning was not working properly and about 100 kids shared the restrooms and a common shower. We were awakened early Friday morning to start our busy day. I met the group I would be working with which consisted of five bright boys and girls ranging from grades 9 through 11. Our group also contained a youth minister and a handy-man from Trinity Methodist Church in Ruston. After an early breakfast at the church, we loaded ourselves and the supplies needed to rebuild a porch for an elderly woman who lived outside of Chaudrant, Louisiana. We took three vehicles, drove for approximately 30 minutes, and arrived at our destination where we met with the home owner’s daughter and son and various grandchildren, nephews, nieces, and cousins who were roaming the area.

The porch was in deplorable condition and we immediately set to work. We removed everything from the surface of the porch, took up the carpet and plywood, and then removed the old flooring itself. It was at this time that it became readily apparent that God has given all of us special talents and gifts that are different for each one of us. I didn’t have a clue as to how to start rebuilding this porch, but Mr. John Sutton, the handy man, stepped forward and took charge as it was apparent he had done this before. With his direction and expertise, we all were assigned different tasks that we worked on. By the end of the first day, we had visited with all the family members and broke bread with them, sharing our lunch and drinks. We laughed and we smiled and by quitting time, the dismantled rotten porch had a sturdy, level frame to start laying new, solid planks for a firm foundation. We said our goodbyes and returned to the dorm for a well-earned rest. We subsequently had supper and headed to Trinity Church where we heard a band and a sermon about the different gifts God has given us. We were reminded of how the body consists of multiple parts and it takes all the parts in unison to make the body work. After looking back on our day’s work, it was obvious what Jesus was talking about when he said that.

The following morning, we woke bright and early, breakfasted, and returned to our work site to meet with our new friends and to complete the porch. We continued to sweat with everyone participating in different ways. Some people visited with homeowners while others fetched and carried lumber and tools to and from the work site. Some measured boards, others cut with a skill saw. Levelers were employed and everyone hammered and screwed boards into place. It was a true team effort. Rain threatened us the entire weekend, but it turned out to be just a threat.

At the completion of our project, the homeowner came out onto the porch and expressed her thankfulness for her rebuilt porch that was now safe and sturdy for her and her family to walk and sit on and from which she could enjoy the view of her neighborhood. At that time, we all joined hands, both young and old, white and black, male and female, and we praised the Lord for placing us at this home, for letting us meet and make new friends, and for allowing us to be able to help those who needed a little help.

It was an awe-inspiring weekend to see our youth and even parents (such as myself) serving the Lord by stepping outside our regular boundaries and seeing how we help ourselves when we help others.

I have known Beth Foote since I moved to Alexandria 20 years ago on both a personal and professional level. Ms. Foote would make an exceptional jurist that all attorneys in Louisiana and throughout the country could be very proud of, not to mention the general public. Ms. Foote is intelligent, diligent, detailed, compassionate, and a tireless worker who has been “in the trenches” in trying both bench and jury trials for both plaintiffs and defendants throughout the State.

Congratulations to Senator Landrieu for making such a wise nomination and congratulations to Beth Foote on being nominated for the Federal Bench.

LSU's Paul M. Hebert Law Center

I have again been invited to serve as a faculty member for LSU Law Center’s Trial Advocacy Program, which will be taking place this week in Baton Rouge. Nearly 200 senior law students will participate in this intensive and unique, three-day program. The law students will role play and receive critiques from some of the nation’s leading experts in courtroom practices. I am excited about the opportunity to again serve as part of this select faculty, comprised of federal and state court judges, professors and prominent attorneys.

The program will present a rigorous schedule that challenges the students to develop trial skills and practice methods pioneered by the famed National Institute for Trial Advocacy. This is a great opportunity for students to get a taste of what to expect as trial lawyers. They are in their final year of law school and getting close to the point where they will be employing these skills in real cases. I have been fortunate enough to be a part of this program since its inception over 15 years ago, and I’m proud to have positively impacted the careers of thousands of attorneys from across the country.

The case, decided by 5-4 vote, found that a state court judge should have recused himself from a lawsuit against a company who was the most generous support for his election campaign. Despite repeated requests to step aside from the case, Justice Benjamin remained on the judicial panel, depriving the other side of due process and their constitutional right to a fair trial. On two occasions, Justice Benjamin was the deciding vote in West Virginia high court rulings that threw out a $50 million judgment against A.T. Massey, a unit of Massey Energy Co. The case has been sent back to West Virginia for further proceedings.

“Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case,” Justice Anthony Kennedy said in his opinion for the court.

Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined Kennedy’s opinion.

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Tort System as Regulator

We were pleased to see Forbes’ recognition of the tort system’s role in, shall we say, motivating wayward food companies to clean up their act and take responsibility for providing safe food. A closer look at the tort system’s “secondary regulatory function” reveals that foodborne illness litigation often serves as a de facto primary regulator, taking up the slack where governmental agencies may fail. In the absence of adequate federal regulatory resources, we’re fortunate to have a legal system that can act in tandem with and serve as the final safety net for consumers.

Cooperation is a Key to the Tort System’s Success

The tort system is only as effective as the attorneys working within it. Without the continued support of its seasoned professionals, as well as the fresh energy of new recruits, the system suffers. The very title of Baldwin’s Forbes article states it perfectly: “Needed: Tort Lawyers.” Those lawyers should make it a priority to nourish the system…that means share, teach, coordinate, network, encourage, inspire, and respect each other. All of that, in an atmosphere of civility and professionalism. We’re all in this “food fight” together.

My Contribution

So what are experienced tort lawyers doing – and more specifically, what am I doing – to help educate, train, and share information with other lawyers so we can keep the tort system and its regulatory function alive and well? First a little background. My foray into food and water borne illness litigation began over 20 years ago when I represented the family of an offshore worker who died as a result of an ingested pathogen that was alleged to have come from a contaminated water source on the drilling rig aboard which he worked. Since that time, our firm has helped thousands of people with problems associated with food and water borne illness. Over the course of several decades, we have handled a wide variety of such cases, including most recently hundreds of cases associated with the ConAgra peanut butter outbreak, fast food restaurant contamination, contaminated ground water involving thousands of residents, foreign matter in packaged products, and more. We are also currently representing hundreds of farmers in Multidistrict Federal litigation involving genetically modified rice.

Over the last 3 decades, I’ve prepared over 250 speeches and articles. I teach at Law Schools and Judicial Colleges.  I’ve been the president of our local Bar Association and the local chapter of the American Inns of Court. I’ve been recognized by the likes of Martindale Hubel (AV rating), the Best Lawyers of America, the Bar Register of Preeminent Attorneys, Super Lawyers, Best in the United States, and the National Law Journal for achieving one of the nation’s largest verdicts.

And what about now?  What am I currently doing? Here are a few examples:

• I will be speaking on Preemption in Minneapolis at a Federal Bar Association Symposium in June on a panel with academicians and a U.S. federal district court judge
• Trial Magazine will publish a Daubert article I co-authored in July
• I will be serving as a faculty member for the LSU Law Center’s Trial Advocacy Program in the fall, a program I’ve been part of since its inception over 15 years ago
• I am working on a peer reviewed article regarding food safety and foodborne illness litigation
• I’ll be on a continuing legal education panel this summer with the former dean of the LSU Law School and two Federal Judges to discuss recent developments in tort law
• I will be Chairing an Admiralty Symposium and a Mass Tort symposium in the fall
• I am contributing a chapter on the Multidistrict Litigation to a book (Treatise on Class Actions) that will be published by the American Bar Association

But Enough About Me…

And what of all this? Let me be the first to say it:

So what? Big deal.

There are many lawyers who quietly do the same and have achieved similar recognition. And that’s precisely my point: it’s not about big names, honors, or an egotistical sense of accomplishment. What matters is that these efforts translate into benefits for victims and a safer environment for everyone.

The Future of Foodborne Illness Tort Law

As a seasoned attorney with proven experience in many areas of tort law including the foodborne illness arena, I enjoy combining forces with colleagues to improve and strengthen the tort system. My clients — and the public — benefit from these collaborations. I encourage anyone who cares about the future of food safety to cooperate, coordinate, and communicate for the greater good of the tort system, our food system, and the future of public health.

Michelle is a resident of Rapides Parish and graduate of Tioga High School. She was presented her award at the National Conference of Law Reviews on March 19. She is scheduled to graduate in May and plans to clerk for a year for Judge Edith Jones of the 5th Circuit Court of Appeals.

We at Neblett, Beard & Arsenault salute this impressive achievement by one of Cenla’s own!

Not only did the president wipe out the former administration’s penchant for secrecy, he took the additional step of requiring federal agencies to furnish definite plans to implement a more open and transparent government within 120 days.
Sunshine Week is a national initiative to open dialogue about the importance of open government and freedom of information. FOIA became law in 1966 only after years of bitter fighting to make government more transparent.

Even with the existence of FOIA, the need for vigilance continues as the dark years of the Bush administration illustrate.

As far as openness in state government is concerned, the Sunshine Week Survey found good and bad news. Most of the important information is being left offline and unaccessible to the public. Some states are even charging taxpayers for access to records they have in essence already paid for.

In Louisiana for example, important information about inspection reports of our aging and deteriorating bridges is unavailable. When contacted about the issue, the LA DOTD advised they “had a problem with the legality of it”.

We should support efforts at all levels of government, federal, state and local to make public servants accountable to us, the taxpayers. FOIA and other mechanisms of bringing governmental, corporate and manufacturing secrets to the light of day should be championed.

The litany of corporate and governmental misdeeds made public by the scrutiny of taxpayers, ordinary citizens and concerned journalists could be listed infinitum. Defective medical devices and drugs approved for sale to the unsuspecting public, dangerous toys allowed to be sold to our children, insider deals costing taxpayers millions, corporate greed manipulating loopholes and tainted food on our grocery shelves are just a few examples of former secrets brought to public notice after it was too late for some unsuspecting victims.

If we don’t remain vigilant and resist all attempts by governments, corporations and manufacturers to retreat behind a veil of secrecy, we will only be victimized again and again.

On the one hand, he indicated that the agencies that inspect our foods and test the safety of our medicines provide us with one of the safest places in the world to buy groceries or medication. He said that Americans can trust that there is a strong system in place to ensure safety.

At the same time, he acknowledged that in recent years we’ve seen a number of serious problems with contaminated food making its way to the grocery shelves and our homes. He specifically noted the spinach outbreak in 06, the peppers salmonella outbreak in 08 and the most recent peanut butter outbreaks.

On the one hand, while he applauds our system, he recognizes that there has been an alarming trend with troubling statistics. For example, the average number of outbreaks from contaminated produce or other foods has grown to nearly 350 a year up from 100 a year in the early 90’s. He attributes this, in part, to the laws governing food safety in America that have not been updated since the time of Teddy Roosevelt.

According to the President, the FDA is underfunded and understaffed. He says the agency only has the resources to inspect 7,000 of the 150,000 food processing plants and warehouses each year. This means that some 95% go uninspected, and he concludes this is a hazard to public health and unacceptable.

It’s good to see this problem front and center on his radar screen; hopefully he will take meaningful action.

The real question is whether or not the FDA has become so large and unwieldy that it should be totally overhauled and broken into separate agencies.

Obviously, the underfunded structure and oversight ability of the current FDA needs drastic change. There have been too many defective drugs and medical devices, tainted food and dangerous toys allowed to enter the marketplace.

After all of the recent tainted peanut butter, lettuce and peppers scares, some in Congress think a separate food agency is necessary. If the FDA is given additional oversight over tobacco, their workload will only increase.

We should be encouraged that the president has carefully considered and chosen such bright and capable nominees for this important post. Congress needs to take the additional step of adequately funding the FDA so it can get about the business of protecting all of us.

Both are Harvard educated professionals with vast experience and should being welcomed changes to an agency that is struggling. The FDA is underfunded and unprepared to timely take the appropriate action to protect the public against food contamination and dangerous drugs.

The Government Accountability Office and the congressionally chartered National Academy of Science’s Institute of Medicine criticized the agency’s abilities to keep unsafe products off the market and respond effectively to observed hazards.

During a Congressional hearing, Dr. David Graham, a 20 year employee of the FDA, testified that the FDA is “broken” and has “let the American people down.” While discussing the Vioxx example, he concluded that “the FDA, as currently configured, is incapable of protecting the America public against another Vioxx. He explained… “We are virtually defenseless.”

It will be interesting to see how the new FDA chiefs deal with these problems. Some suggest we need centralization of the regulatory process. Others suggest a single food safety agency. There apparently is no shortage of ideas and proposals. And we also see legislative relief on the horizon.

Rep. Dingell has introduced the Food and Drug Administration Globalization Act, designed to increase the FDA’s enforcement power. Senator Dick Durbin has introduced The FDA Food Safety Modernization Act. Hopefully all of this will lead to a healthier food system.