BP Oil-Spill Settlement Approval Upheld by Appeals Court

Approval of BP Plc (BP/)’s $9.2 billion partial settlement of private-party claims from the 2010 Gulf of Mexico oil spill was upheld by a U.S. appeals court.

Objectors said the settlement was unfair and couldn’t be approved because it inconsistently compensated victims with the same types of economic injuries. London-based BP asked the court to delay approval until a dispute over the payment of claims is resolved in the company’s favor.

The U.S. Court of Appeals in New Orleans today upheld U.S. District Judge Carl Barbier’s December 2012 endorsement of the accord.

“We cannot agree with the arguments raised by the objectors or BP,” U.S. Circuit Judge W. Eugene Davis said today in a 2-1 ruling. “Neither class certification nor settlement approval are contrary” to federal law, the court said.

The April 2010 Macondo well blowout and the explosion that followed killed 11 workers and set off the worst offshore oil spill in U.S. history. The sinking of Transocean Ltd. (RIG)’s Deepwater Horizon drilling rig and the spill led to hundreds of lawsuits against BP and its partners and contractors.

The company settled with most private plaintiffs in March 2012, just before a non-jury trial was to begin on liability for the incident and on whether BP or its contractors, Halliburton Co. (HAL) and Transocean, acted with gross negligence.

Loss Claims

The accord resolved economic-loss claims for multiple classes of businesses and property owners in Louisiana, Alabama and Mississippi and in parts of Texas and Florida. It excluded claims of financial institutions, casinos, private plaintiffs in parts of Florida and Texas, and residents and businesses claiming harm from the Obama administration’s moratorium on deep-water drilling prompted by the spill. It also didn’t cover claims by governments.

BP initially valued the economic-loss settlement at $7.8 billion. It later revised that estimate to $9.2 billion, according to an Oct. 29 company regulatory filing.

Barbier gave final approval to the settlement in December 2012, certifying the case as a class action, or group lawsuit. Multiple groups of plaintiffs subsequently appealed, contending it couldn’t be a class action because all victims weren’t treated the same.

The case is In re Deepwater Horizon-Appeals of the Economic and Property Damage Class Action Settlement, 13-30095, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

The lower-court case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, 10-md-02179, U.S. District Court, Eastern District of Louisiana (New Orleans).

Jury Links Commonly Used Talc Powder To Ovarian Cancer

A federal jury has found that talcum contained in Johnson & Johnson powder products contributed to a woman’s ovarian cancer.  The jury found on that Johnson & Johnson failed to warn consumers of the link between ovarian cancer and the use of talc-based body powder for feminine hygiene.

Deane Berg, a resident of Sioux Falls, who was diagnosed with ovarian cancer in 2006, filed the lawsuit. The 56-year-old berg used talcum-based products for hygiene purposes for about 30 years, including J&J’s shower to shower body powder.

Attorney R. Allen Smith, Jr., one of Berg’s lawyers, said his client never would have used the products in the manner she did if she had seen a warning.  “The first time she heard about the risk was after her diagnosis,” Smith said.  Smith of Ridgeland, Mississippi, filed the very first talcum ovarian cancer lawsuit in 2009.

The verdict comes shortly after the Mississippi Attorney General’s office launched an investigation into Johnson & Johnson’s promotion of talcum powder products used for feminine hygiene.

The jury did not award Berg monetary damages nor did it agree that Johnson & Johnson’s products are defective without a warning label

Medical Studies Link Talcum Powder to Cancer Risk

A recent study conducted by Dr. Margaret A. Gates and funded by the National Cancer Institute and the National Institutes of Health, focused on talc ovarian cancer, found a 36-41% increase in ovarian cancer related to use of talc.  The study advised women to immediately stop using the product.

A June report published in the medical journal cancer prevention research, and based on data collected covering about 2,000 women, found that women who use powder containing talc may have a 20% to 30% greater risk of ovarian cancer.

Medical Experts Testify

Mr. Smith is working with the two of the foremost medical experts on the subject of talc and ovarian cancer (Daniel Cramer, MD and John Godieski, MD).  Dr. Cramer, who has studied the connection between talc and cancer for 30 years told jurors that talc probably was a contributing factor in 10,000 cases of ovarian cancer each year.

Doctors analyzed berg’s cancer tissue, found talc using a scanning electron microscope and concluded that body powder was the cause.

Attorneys To Expand Talc Related Cancer Investigation

This talcum powder lawsuit may be first of many other talc related cancer lawsuits that are to be investigated and filed by attorney Smith and his associated group, the Talc Litigation Group.

Talc Products Affected

Numerous other talc products are impacted by the lawsuit;

•Johnson’s ® baby powder

•Shower to Shower® absorbent body powder

•and all other talcum powder products.

What Do I Do If I Think I May Have Been Injured?

Regardless of where you live, contact Chhabra & Gibbs P.A. to review your case and ensure that you are properly evaluated by a qualified medical expert.

No Mississippi Nursing Home without Violations Since 2010

Of Mississippi's 205 nursing homes, not one has had a clean safety record in the past three years. Since 2010, nursing homes in the state have amassed over 4,500 violations from the U.S. Centers for Medicare and Medicaid Services.

It should be noted that these numbers reflect facilities that accept Medicare and Medicaid, however, not all nursing homes do. Facilities that are not certified to accept federal assistance programs are typically very small, private homes. Mississippi's long-term-care ombudsman, a post in the Department of Human Services, stated that the state's systemic failure is the result of low wages and inadequate training among nursing home personnel.

She further stated that many employees of Mississippi nursing homes make minimum wage, with no benefits, and could often make more at local casinos. Certified nursing assistants, for example, make an average of $24,600 a year in Mississippi, which is more than a fast food cook but less than a blackjack dealer at a casino.

Nursing homes that accept Medicare and Medicaid are subject to inspections at least once per year, along with unannounced inspections if there are any complaints filed. Facilities are also required to promptly report all incidents, no matter how seemingly trivial, to authorities. Certified nursing assistants must undergo and pass a 100-hour training course to be employed.

Overall, Mississippi nursing homes average about eight violations per nursing home. In the most recent Nursing Home Report Card, issued by the advocacy group Families for Better Care, the state earned a "D."

The systemic pattern of health and safety violations can have dire, often gruesome consequences for the state's elderly. In November 2010, an employee at Highland Home in Ridgeland, Mississippi found a resident hanging from her wheelchair's lap belt by the neck. The patient had low muscle tone and poor cognitive skills, and the belt's manufacturer specifically warned against its use in patients with these ailments.

The resident survived that incident, after which the facility switched her to a crotch restraint, despite manufacturer's recommendations that it be used only for patients with adequate posture. On New Year's Eve 2010, the same resident was found hanging from her wheelchair from the crotch restraint; the staff made no changes to her care plan and continued using the restraint, without regular monitoring.

At least three other residents at Highland Home suffered similar incidents, suggesting a pattern of inadequate monitoring and negligent care plans. Other serious problems noted at Highland are common among other nursing homes throughout the country: staff dropping residents while moving them, failing to follow physician's orders, unnecessary sedation, isolation and theft. Highland racked up $635,000 in 2011, the highest of any facility in Mississippi.

The most common violation in Mississippi was failure to control the spread of infection in nursing homes, with nearly 315 violations. Second was failure to keep adequate clinical records. Golden Age Nursing Home in Greenwood has the highest number of deficiencies in the state, with 53 since 2010. Six violations occurred in 2012 after an employee was caught stealing residents' painkillers.

I’m hurt but I want to Keep my Job

Unfortunately, many people who decide to hire a lawyer in a workers’ compensation case wait until something bad happens.  Quite often, people wait until they are terminated before seeking a free consultation.  This is a big mistake.  Unfortunately, in Mississippi, you cannot sue your employer for wrongful termination that arose out of a workers’ compensation claim.  There is some good news though.  If you get fired after a workers’ compensation injury, it provides you with valuable evidence to help make your claim for permanent disability but there are certain things that you must do to establish this claim effectively.  You should consult an attorney immediately if you have been terminated to help preserve all rights you may have. 

If you get a lawyer soon after your injury, sometimes the attorney can take certain measures to help protect your job.  People naturally feel that lawyers will make things worse, but our experience is that this is not the case.  If you are loyal to your employer and like your job and if you feel the insurance company is paying you all the benefits you are entitled to, you should get some advice immediately BEFORE things start to get bad.  If you wait until things get bad, it is usually too late.  When all the correct steps and measures are taken, you will be in the best position to protect your job and protect your relationship with the employer that you are loyal to.  More importantly, you will be in the best position to protect your rights.       

Rogen K. Chhabra

Can I choose my Own Doctor?

Yes, but hurry.  The recent change to the Workers’ Compensation Act takes away the right to choose your own doctor if you treat with the company choice for more than 6 months or if you have a surgery.

Many times when people are hurt on the job, they are sent to the company doctor.  What people don’t realize is that they are entitled by law to choose their own physician and the company has to pay for it.  Companies will often ask you to sign a form saying that you accept the company doctor as your choice.  Signing this form is a mistake.  People are often fooled into thinking that they will have to sign the form to get treatment.  This is simply not true.  If the company wants you treated by the doctor of their choice, they have to pay for it and you don’t have to accept that doctor as your choice of physician.  You can reserve your right to go to your choice of physician as long as the treatment provided is reasonably and medically necessary. 

Companies will often also pay a nurse to go along with you to your doctor visits.  These are called “nurse case managers.”  You have the right to seek treatment by a doctor without interference in your so-called “management” by a company paid nurse.  If you have been asked to sign a choice of physician form or if a nurse has been going along to your appointments with you, you should consult an attorney immediately to determine what your rights are and to help make sure that you get the best available medical treatment paid for by the company. 

Rogen K. Chhabra 

How many weeks am I entitled to be paid if I get hurt at work?

There are two types of disability payments, temporary and permanent.  The law allows up to 450 weeks of payments total up to the state maximum for the year of the injury.  The maximum for an injury occurring in 2013 is $202,104.  The benefits generally start as weekly or bi-weekly checks until the temporary period ends and the permanent period begins.  The change from temporary to permanent usually occurs when a person reached Maximum Medical Improvement (MMI).  This is normally determined by the treating physician when they feel that treatment has reached a plateau (unfortunately this does not always mean complete healing and leaves a permanent disability).

There are also two types of permanent injury.  The first is known as scheduled member.  This would be a body part like an arm, leg, finger, eyeball, etc.  The second is whole body.  This would be like the head, back, neck, brain, etc.  If you have a permanent injury, the way it is paid is completely different in a scheduled case than a whole body case. 

Some differences:

In a scheduled member case, even if you go back to work without restrictions, you will be entitled to minimum compensation if you have an impairment rating assigned by a doctor.  There are no minimums in a whole body case even with a severe rating.

In a whole body case the restrictions and ability to return to work will be the more important factors in determining loss of wage earning capacity which equates to compensation.

Whole body cases are limited to 450 weeks, while scheduled member cases are limited to 200 weeks of compensation, or less, depending on the body part that is injured.

Some similarities:

Often a check for permanent disability looks exactly like a check for temporary disability.  The weekly benefit amount does not change.

Also, it is possible to get permanent disability in a lump sum all at one time, but the way to go about it depends on the type of injury.

These concepts can be difficult and legalistic.  You should expect your insurance company to be nice in hopes that you don’t get armed with legal advice from an experienced lawyer.  You should NOT expect your insurance company to give you accurate legal advice as to what your permanent disability claim is worth.  You should never try to navigate through these issues without getting some free advice on what it is really all about and how it applies to your particular case.

Rogen K. Chhabra 

I fell and hurt myself on a property isn’t the owner/operator at fault? Actually, you could be wrong.

Just because you slipped or tripped and fell on someone's property doesn't mean that they are automatically responsible for your injuries. In a slip and fall case, the law requires you to show that the business or property owner knew or should have known about the dangerous condition before the accident. If you are unable to show that the business or property owner knew or should have known about the condition on the property, your case can be dismissed. Proving that an owner should have known (i.e. had constructive knowledge) about a dangerous condition is usually difficult.

In order to assist in showing constructive knowledge, you should immediately take these simple steps to preserve evidence: 

• Immediately report the accident and the dangerous condition to the property owner, store manager, or other person in charge.

• Be sure to identify cameras in the area. The presence of cameras may be helpful to you case in that they can be used to help determine how long a substance has been present.

• Use your phone to take pictures of dirty tracks, footprints or anything that helps to show that substance had been on floor for an extended period. If you are unable to photograph the condition, be sure to take extensive notes about the size, shape, color and location of the substance.

• Identify where the closest employee would have been stationed in comparison to the substance.

• Obtain the names and addresses of anyone who may have witnessed the fall.

If you or a loved one has been injured in a slip and fall, contact our office for a free, confidential consultation.

Ashley L. Hendricks