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State attempts unsuccessfully to suppress discovery in CNSI civil suit; Greenstein offers to waive attorney-client privilege

Posted in Attorney General, Courts, DHH, Governor's Office, Guest Columnist, Judges, Lawsuits, Media on December 15, 2014| 8 Comments »

By Robert Burns, Guest Columnist

Most of the media headlines entailing Bruce Greenstein, Gov. Jindal’s former head of the Department of Health and Hospitals (DHH), have centered around his recent indictment for alleged false testimony during his confirmation hearing and alleged false statements made to a Louisiana grand jury convened by Attorney General Buddy Caldwell to delve into possible misconduct entailing the awarding of the state Medicaid contract to Client Network Services Incorporated (CNSI).  Less noteworthy in the news media, but a matter in which Louisiana Voice has taken a keen interest, is the civil trial taking place in Judge Tim Kelley’s courtroom entailing CNSI’s claim of wrongful termination of its contract for which it seeks millions of dollars in alleged damages.

During a hearing in early 2014, Judge Kelley repeatedly sought the status of any Federal investigation into alleged wrongdoing regarding the awarding of the contract.  Very reluctantly, David Caldwell, Assistant Attorney General, admitted that the Feds had closed their investigation but emphasized that the State of Louisiana was proceeding forward and emphasized to Judge Kelley that “The AG’s Office has encountered other instances in which the Feds closed an investigation but we continued and ultimately obtained indictments.”

The parties are now in the discovery phases of the civil trial. Attorney Lewis Unglesby, along with Michael McKay and Justin Lemaire, is representing CNSI, and some very intriguing accusations have been bantered about in court hearings. Among those accusations, conveyed at an October 28, 2014, hearing, is that Attorney General Investigator Scott Bailey   met with and potentially improperly coached CNSI whistleblower Steve Smith into changing his testimony, resulting in contradictory depositions.  It was also at that hearing that David Caldwell, in attempting to defend the visits with Smith by his office and relaying to Judge Kelley that “We didn’t do anything wrong,” emphasized, “We’re not trying to rig a civil case.”

Perhaps Caldwell may indeed not be trying to “rig a civil case” and genuinely seeks only to prosecute Greenstein for his alleged perjury; however, based on a hearing in Judge Kelley’s courtroom today (Monday, December 15, 2014), it appears equally apparent that the State of Louisiana is prepared to fight tooth and nail to prevent CNSI’s lawyers from advancing discovery in the civil trial toward the plaintiff attorneys’ goal of a trial sometime in 2015.

To that end, today’s hearing entailed the fact that CNSI’s lawyers have scheduled a deposition of Stephen Russo, legal counsel for the Department of Health and Hospitals for tomorrow (Tuesday, December 16, 2014).  The State’s attorneys, led by Justin O’Brien, sought to block the deposition on multiple fronts including attorney-client privilege.

Throughout Greenstein’s testimony before the grand jury, he repeatedly emphasized that Russo serves as the personal legal attorney for the head of the DHH and thus served as Greenstein’s personal attorney during his tenure as head of the agency.  As such, Unglesby relayed to Judge Kelley that any attorney-client privilege had unequivocally been waived through Greenstein’s grand jury testimony. Unglesby said Greenstein was present in court and would be more than happy to state to the court that he waived any attorney-client privilege. O’Brien also indicated to Judge Kelley that the intended line of questioning by Unglesby was overly broad. Unglesby, however, countered that argument by holding up a small folder and relaying his intent to be laser-focused on the pertinent discussions between Russo and Greenstein during the critical period entailing the awarding of the contract.

On two separate occasions, Unglesby made brief reference to material in Greenstein’s grand jury transcript. O’Brien objected and asked that Judge Kelley order the courtroom cleared since statements were about to be made regarding grand jury testimony. Unglesby countered by relaying that the AG’s Office had, and he emphasized that Caldwell may have “likely acted illegally” in doing so, made the grand jury transcript public. Grand jury secrecy, therefore, was no longer an issue. Judge Kelley concurred and emphasized that he’d even read the grand jury testimony accounts in the newspaper and therefore would not be clearing the courtroom.

At one point, O’Brien wanted to introduce into evidence a document that he said would demonstrate that John McLindon, Greenstein’s attorney, had provided contradictory statements.  Judge Kelley relayed he’d be happy to look at anything as long as opposing counsel had seen it first.  When O’Brien presented a copy to McLindon, he (McLindon) immediately relayed, “That was filed under seal.”   Upon hearing that, Judge Kelley relayed that, if the document was filed under seal, nobody, including him, should be looking at it.

Judge Kelley informed Unglesby that it would not be necessary to have Greenstein waive any attorney-client privilege at the day’s proceeding and ruled that the deposition could proceed as scheduled.  Judge Kelley was very specific in justifying his ruling in relaying that, in the court’s view, attorney-client privilege had certainly been waived, and he further emphasized that the intended scope of the deposition was in conformity with Louisiana Code of Civil Procedure in terms of not being overly broad nor designed to harass the deponent.

O’Brien asked Judge Kelley to stay his order pending a writ being filed with the First Circuit Court of Appeal.  Judge Kelley relayed, “I’m not staying anything.  If you take issue with my ruling, you can file that with the First Circuit, but I want to be understood on this matter.  In the court’s view, this matter is clear.  It’s straightforward.  The court views this matter as being very clear and I want it into the record that’s the court’s view.”  After O’Brien sought for Judge Kelley to reiterate that he felt it was clear (which Judge Kelley did reiterate), he pulled out a pre-drafted order and asked if Judge Kelley would sign it for the Frist Circuit to consider a stay on his ruling.  Judge Kelley relayed that, upon filing, O’Brien could bring the document back up for him to sign (even relaying he could interrupt court if necessary due to the urgency of the matter).

Assuming the First Circuit doesn’t grant a stay, it sure would be interesting to be able to sit in on tomorrow’s deposition.  The one thing that was evident today is that the State’s attorneys clearly fear Unglesby being able to question Russo about that critical timeframe and communications he had with Greenstein entailing the awarding of the contract.  Based on Greenstein’s willingness to show up at today’s hearing and relay that he’d be happy to formally waive any attorney-client privilege, it seems obvious that Greenstein and McLindon feel they will likely reap a spillover benefit from the deposition entailing Greenstein’s criminal defense.

So, even though the big headlines of the CNSI contract awarding and cancellation may entail Greenstein’s indictment, the far more intriguing aspect of that contract appears to be playing out in the CNSI civil trial in Judge Kelley’s courtroom.  Stay tuned folks, Louisiana Voice will keep readers informed as further court hearings transpire.

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Bienville Parish grand jury to continue investigation of sexual abuse of female residents of New Bethany Home

Posted in Corruption, Courts, State Agencies, State Police on December 15, 2014| 8 Comments »

A state grand jury will reconvene in Arcadia in Bienville Parish on Thursday, Dec. 18, to continue its investigation of charges of molestation and rape brought against the former operator of a home for girls by former residents of the facility who say they the victims of sexual abuse by the minister in the 1970s and 80s, LouisianaVoice has learned.

One victim has already testified before the grand jury recessed for several weeks because a grand jury member underwent knee surgery.

Because grand jury testimony is secret, we normally would not report this type information, but a self-described survivor of the alleged abuse has already gone public with the information on social media.

Word of the grand jury probe comes almost exactly a year after seven former residents of New Bethany Home for Girls arrived in Arcadia from four separate states to file formal charges against Rev. Mack Ford. The 2nd Judicial District Attorney’s office presumably has been investigating those claims since the seven converged on the office of Bienville Parish Sheriff John Ballance a year ago to file their charges.

One source told LouisianaVoice that two witnesses had agreed to testify in exchange for immunity from prosecution. It was not immediately known if the two were former employees of New Bethany or members of Ford’s family.

Because grand jury testimony is secret, we normally would not report this type information, but a self-described survivor of the alleged abuse has already gone public with the information on social media.

Although only two of the six former residents who flew in from North Carolina, Nevada, Florida and Texas on Dec. 6, 2013, claimed to been sexually abused while living at the home, the others said they were there to lend moral support to the two, one of whom was said to be terminally ill with an inoperable brain tumor.

Allegations about beatings, handcuffing and other forms of punishment of girls at the home first came to light when the Baton Rouge Advocate began an investigation of the home in 1974. Editors, however, quickly killed the investigation before any stories could be written and the issue lay dormant until the late 1980s when the Louisiana Department of Health and Human Resources began looking into abuse allegations. In 1988, the state raided the unlicensed home located south of Arcadia on LA. 9 and removed 29 girls from the facility.

Simultaneous to that raid, the Bethel Home for Wayward Children in Lucedale, Mississippi, was closed down by officials in that state. Six months after the New Bethany raid, however, it remained open and was not closed down until 1998.

There were claims of girls at New Bethany having to clean toilets with their bare hands, being locked in isolation with only a bucket for a toilet, girls being handcuffed to their beds and being made to stand all day with no restroom breaks, beatings with wooden dowels, PVC pipe, paddles, belts and limbs.

A state game warden, interviewed by the Advocate in 1974, said he would take confiscated deer that had been killed illegally by hunters to the home. “On one occasion,” he said, “Ford asked if he could have my handcuffs.”

The public face of New Bethany, however, was quite different. Girls’ quartets clad in long dresses were frequently paraded before church congregations to sing, figuratively and literally, the praises of New Bethany in efforts to generate “love offerings” from church members.

The claims of physical abuse and rape are not new to the Independent Fundamentalist Baptist (IFB) Church with which New Bethany and Ford were affiliated.

The First Baptist Church of Hammond, Indiana, received a great deal of notoriety over the sexual trysts two of its ministers had with female church members over a period of several years. Their misconduct was subsequently repeated at other churches where they ministered.

And when their behavior was revealed, it was the women victims who were required to stand before the congregation and apologize and ask forgiveness for tempting the men, who invariably went unpunished and indeed, continued to receive near idol status from the congregation.

Likewise, group homes where abuse has been documented tend to receive devout support from area churches. Instead of asking those who run the homes to explain their behavior, their accusers are routinely treated as pariahs while the accused are welcomed as heroes at church rallies on their behalf.

Adherents to IFB dogma, for example, discourage intermarriage or even any contact with those of other religious beliefs, distrust government, favor home schooling, and believe that spankings should commence as early as 15 months of age.

Tampa Bay Times reporter Alexandra Zayas last year was allowed to do what the Advocate refused to do. She wrote a lengthy investigative series on claims of physical abuse at several group homes in Florida. http://www.tampabay.com/faccca/

Just as she found in Florida and as had been found earlier in Texas, Louisiana homes are unlicensed and unregulated by the state, thus allowing the operators free rein in the areas of discipline and education—so long as it is done in the name of religion.

The group homes employ the same textbooks that rely heavily on the Accelerated Christian Education (ACE) and BJU (Bob Jones University) Press curricula—the same resources used by many of Louisiana’s voucher and charter schools being approved by the Louisiana Department of Education. The textbooks eschew traditional science and history courses, choosing instead to apply Old Testament interpretations in their teachings.

New Bethany is situated in a secluded spot deep in the piney woods south of Arcadia where the children’s screams could not be heard. Its remote location kept the facility out of the public eye and allowed Ford to give outsiders a look on his own terms—at church services, in a controlled environment, where the neatly scrubbed girls would sing and give emotional testimonials about past drug abuse and promiscuity (many of those “testimonials” contrived by Ford) and how New Bethany had turned their lives around—all orchestrated for the maximum emotional impact so as to extract “love offerings” from those in attendance.

Ford resisted state inspections, claiming that he accepted no state funding and that he was not licensed by the state and was therefore not subject to state regulations under the doctrine of separation of church and state.

On one occasion a state inspector did manage to breach the normally chained front gates of New Bethany but that inspector died suddenly a short time later.

Ford used his death as evidence of God’s intention to protect New Bethany from state regulations, saying that the inspector had been struck down by God and a similar fate would likely await other state inspectors.

Besides the Arcadia home, Ford and his family also ran homes for boys in Longstreet in De Soto Parish and in Walterboro, S.C. One by one, the homes were eventually shut down by authorities, the Arcadia home in 1998 (some reports indicate that New Bethany boarded girls there as recently as 2004), but only after inestimable mental, spiritual and physical damage had been inflicted on hundreds of children, many of them in their early teens.

It was not immediately known how many others of the seven have been called to testify before the grand jury.

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State employees, retirees (LA VERITE) seeking contributions to finance litigation against state, Jindal over OGB fund raid

Posted in Civil Service, Courts, DOA, Governor's Office, Health Care, Lawsuits, OGB, Office of Group Benefits, Privatization, Retirement on December 11, 2014| 13 Comments »

 

A group of state employees and retirees is attempting to raise funds to finance a lawsuit against Gov. Bobby Jindal and the Division of Administration over the pirating of nearly a quarter-billion dollars of the Office of Group Benefits (OGB) reserve fund.

LA VERITE (French for Truth, but also an acronym for Louisiana Voices of Employees and Retirees for Insurance Truth and Equity) is soliciting donations to help pay the legal fees required to file and to pursue the litigation to prevent Jindal from dipping further into what once was a reserve fund of more than $500 million in order to balance his perpetually out-of-kilter state budget.

Below is a letter LouisianaVoice received from LA VERITE which is self-explanatory:

GIVE YOURSELF A CHRISTMAS GIFT –

INVEST IN YOUR FUTURE

 DONATE TODAY TO SUE BOBBY JINDAL AND

STOP THE OGB HEALTH PLAN CHANGES THAT WILL KEEP YOU AND YOUR FAMILY FROM HAVING AFFORDABLE INSURANCE AND HEALTH CARE

Are you ready to join the fight to stop Bobby Jindal’s illegal destruction of the Office of Group Benefits?  You can be a part of the challenge to Bobby Jindal’s plan to prevent state employees and retirees from having decent, affordable, comprehensive health insurance.

 PLEASE DONATE WHATEVER YOU CAN AFFORD TO LA VERITE’ SO WE CAN FILE A LAWSUIT TO STOP THE CRIPPLNG INCREASES IN OUT-OF-POCKET (YOUR POCKET) COSTS OF THE NEW HEALTH INSURANCE PLANS TAKING EFFECT ON MARCH 1, 2015. 

 We cannot file the lawsuit until funds have been raised to do so.

 Please send a check or money order as soon as possible to:

LA VERITE’

7575 Jefferson Hwy. #35

Baton Rouge, LA  70806

 HELP STOP THE ILLEGAL AND IMMORAL THEFT OF

YOUR HARD EARNED MONEY.

Jindal plans to balance the state budget on us – state employees and retirees.  Can you afford to pay for his giveaways to his rich friends through tax breaks that have drained the state budget?  We will be paying for Jindal’s corrupt practices long after he is gone.  See the news story below:

From The Advocate: ‘State budget saving report brings questions’:

Marsha Shuler Dec. 08, 2014

The Jindal administration is two-thirds of the way toward achieving savings called for in the state’s $25 billion budget for the current fiscal year, officials told a legislative committee Monday….The administration updated the committee on goals contained in the Governmental Efficiencies Management Support report released in June. The overall report, submitted by private consultants Alvarez & Marsal, identifies more than $2.7 billion savings or revenue generating ideas that the state will implement over the next five years across all areas of operations…. About $1 billion of the savings is expected to come from the state Office of Group Benefits which provides insurance to some 230,000 state employees, teachers, retirees and their dependents. Changes are currently underway, including increased premiums and shifting more out-of-pocket expenses to plan members.

*****************************

After years without merit increases, some state employees finally received a raise last year, and most received a four percent raise Oct. 1. Our paychecks would be approximately 20 percent more if we had received regular merit increases during the Jindal years. While Jindal pretends not to raise taxes, we state employees are being taxed in effect, to fund tax breaks for the very wealthy.

THERE WILL BE NO RAISE IN 2015 DUE TO THE CURRENT FISCAL CRISIS – A HUGE DEFICIT THIS FISCAL YEAR. Drastic mid-year budget cuts will soon be announced to attempt to deal with THE LOOMING $1.4 BILLION DEFICIT NEXT FISCAL YEAR.

Jindal has privatized OGB and raided the trust fund, so now we are facing increased premiums, imposition of deductibles where none existed before, and confusing plans that have been repeatedly changed so we cannot understand the coverage….all designed to further punish hardworking, dedicated public servants.  After withholding our merit increases for years Jindal now plans to impose crippling increases in our healthcare costs that most of us cannot afford.

Jindal and Kristi Nichols have refused to abide by the requirements of the Louisiana Administrative Procedures Act (APA) – actions which the Attorney General has ruled illegal, meaning their OGB agenda is not legal. They are thumbing their noses at the law, and jeopardizing the wellbeing of almost a quarter of a million Louisiana citizens. Help stop the most corrupt administration in modern state history from carrying out their plan to cause further financial harm to you and your family.

*********************

LA VERITE’ is a group of state employees and retirees seeking to bring a lawsuit to prevent Jindal and Kristi Nichols from forcing us into poorly designed, expensive health plans that we cannot afford.  Anyone can join LA Verite’ – in fact, you already belong if you are an active or retired Louisiana state employee.

LA Verite’ is French for TRUTH, and stands for LouisianA Voices of Employees and Retirees for Insurance Truth and Equity.

Contact us at LA.Verite2015@outlook.com

Remember: as a civil servant, you have the right to participate in activities concerning issues that impact you.  You may publicly support or oppose issues other than support of candidates or political parties (Civil Service General Circular Number 2014-021).  We have also consulted a state ethics attorney who assures that we are within our rights.  This effort is legal and ethical.

However, be assured that your donation to LA VERITE’ to help fund the OGB lawsuit will be kept confidential.  Your identity will not be made public.  Donations are not tax deductible.

Please share this information with co-workers.  Forward the email or print it out and pass it on.  Truth and equity in 2015!

 

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On 50th anniversary of Ferriday civil rights killing, read journalist Stanley Nelson’s Concordia Sentinel series

Posted in Courts, Media on December 10, 2014| 5 Comments »

Every journalism student in America should be making a pilgrimage to Ferriday, Louisiana, on this date to sit at the feet of and learn from Stanley Nelson, 59-year-old Editor of the Concordia Sentinel, a small weekly newspaper (circulation about 5,000) that serves up mostly local news, wedding announcements, obituaries and sports to the residents of Concordia Parish. http://chroniclingamerica.loc.gov/lccn/sn87090135/

For those of you unfamiliar with the geography of Louisiana, Concordia Parish lies directly across the river from historic Natchez, Mississippi. Vidalia (not the home of the onion by the same name—that’s Vidalia, Georgia) is the parish (county) seat and Ferriday sits a little more inland in the heart of the rich delta that provides a living for the area’s soybean and cotton farmers.

Ferriday is the home of Jerry Lee Lewis, Jimmy Swaggart, Mickey Gilley, network television news anchor Howard K. Smith and Gen. Claire Chennault—quite a résumé for a town of fewer than 3500 residents (3,453 to be precise).

Clayton is another small town in the mostly farming-reliant parish and is best known as the home of the family cemetery of Jerry Lee Lewis, who son is buried there.

Nelson, a native of nearby Sicily Island, is a 1977 graduate of Wiley Hilburn’s journalism program at Louisiana Tech University in Ruston. That was just about the time the late John Hays, who would become a pretty fair investigative reporter in his own right, was getting cranked up with his controversial Morning Paper in Ruston.

Nelson began his newspaper career at the Hammond Daily Star before moving back home to work at the Sentinel, the quintessential hometown paper. He could not have chosen a better mentor in the person of the late Sam Hanna, a legendary name in Louisiana newspaper lore (his son Sam Jr. now runs the family newspapers in Ferriday, West Monroe, and Winnsboro).

But make no mistake, Stanley Nelson has put his own indelible mark on the Sentinel.

In 1964, prodigal son Jerry lee, whose  marriage to his 13-year-old cousin caused a scandal that temporarily derailed his promising rock and roll career, had begun an improbable comeback by re-branding himself as an equally adept country music artist with songs like How’s My Ex Treating You?, What Made Milwaukee Famous Has Made a Loser Out of Me and She Even Work Me up to Say Goodbye. Nelson was eight years old at the time.

Jerry Mitchell, writing for the Clarion-Ledger in Jackson, Mississippi, wrote last April that shortly after midnight on Dec. 10, 1964, exactly 50 years ago today, Frank Morris, a black shoe repair shopkeeper, was asleep on a cot in the back of his store when he heard glass breaking. http://www.clarionledger.com/story/news/2014/04/26/small-town-editor-compelled-solve-mystery/8235145/

“He bolted to the front of the store and saw two men, one pouring gasoline on the outside of the building and the other holding a shotgun,” Mitchell wrote.

As a lit match dropped into the gasoline instantly turned the little shop into an inferno, the man behind the shotgun ordered Morris back into the building. By the time he exited the rear of the building, his feet were bleeding, his hair was on fire and the only remnants of clothing remaining were the elastic waistband of his boxer shorts and the shoulder straps of his undershirt.

Morris lived long enough to talk to the FBI but told agents he didn’t know his attackers.

The Justice Department, however, was too preoccupied with three earlier civil rights murders to actively pursue Morris’s killers. Only a few months earlier, the bodies of three civil rights workers had been discovered buried in a levee at Philadelphia, Mississippi (Neshoba County), and Attorney General Robert Kennedy directed the FBI’s efforts to solving those murders.

So why was Frank Morris killed? A couple of theories exist and both are plausible for the time. One says because he was the only shoe repair shop in town and because families then could generally afford only a single pair of shoes, both blacks and whites patronized his shop. He waited on whites, particularly white women, outside, on the porch of his store. Still rumors started by local Ku Klux Klan members said he flirted with the white female customers. Another story has it that Morris refused to repair a deputy sheriff’s boots at no charge and in so doing, offended the white lawman.

In February of 2007, Nelson who by then was editor of the Sentinel, heard the name of Frank Morris for the first time when the Justice Department released a list of victims’ names from unsolved killings during the civil rights era.

He wrote what he believed at the time would be his only story about the killing. Two hundred stories later, he is still writing. http://coldcases.org/category/publication/concordia-sentinel

Along the way, Nelson in 2010 was named one of three finalists for the Pulitzer Prize. He was nominated by LSU in the category of Local Reporting. His own book deal is now in the works after a novel based on his dogged pursuit of the killers of Frank Morris as well as at least four other victims in Concordia Parish and in nearby Natchez hit the bookstores earlier this year. Dr. Charles Colvin, the physician who treated Morris, also died when the airplane in which he was a passenger collided in mid-air with another aircraft at the Concordia airport in 1970.

The 784-page book, Natchez Burning, was written by Natchez resident Greg Iles and is the first of what is scheduled to be a trilogy by the author.

Nelson, while flattered that Iles based his book’s character on him, says there is little in common between himself and the book’s protagonist Henry Sexton, editor of the fictional Concordia Beacon. “He has a much more adventurous life than me,” Nelson was quoted in the Clarion-Ledger article. “He is a musician, has a girlfriend and is tech savvy—that’s something I don’t know a damn thing about.”

Frank Morris becomes Albert Norris in Natchez Burning and another murder victim, Joe-Ed Edwards, killed on July 12, 1964, is Joe Louis Lewis in the book. Similarly, the Silver Dollar Group, a real-life Klan offshoot, shows up in Iles’ book as the Double Eagles, from gold dollars known by that name.

“I thought that 2007 story would be my only one on the subject,” Nelson told LouisianaVoice. “But then the FBI reopened the case and the Southern Law Poverty Center got involved as did the Syracuse University College of Law, LSU journalism students, the Center for Investigative Reporting in San Francisco, and civil rights attorney Janis McDonald.”

Nelson said “scores of people,” including Jay Shelley of the Manship School of Mass Communications at LSU, have helped him in his pursuit of the killers, most of whom died as suspects before charges could be brought against them. One exception is Silver Dollar Group member James Ford Seale who, in 2007, was finally convicted in connection with the deaths of the three civil rights workers in Neshoba County, Mississippi. Seale was the only member of the Silver Dollar Group to spend a day in prison.

“All of the sheriffs and district attorneys have had these as cold cases all this time and did nothing,” Nelson said. “It’s their responsibility to investigate cold cases. One could also blame the FBI for not being more diligent, but thank God for the FBI or nothing would have ever been done. We tend to blame others but we all are to blame for this,” he said.

But when all is said and done, everything done in these cases comes back to a single person: Stanley Nelson. http://www.hannapub.com/concordiasentinel/frank_morris_murder/

Some local residents were not pleased with his digging up old bones—literally and figuratively—but Nelson said the Hanna family stood behind him all the way. “Yes, I’ve been threatened,” he said, “but that goes with the territory. I’ve been cursed and called more creative things than I thought were possible. But the vast majority have been either silent or supportive.”

Iles said the inspiration for his Henry Sexton character was the idea of a lone journalist, covering all the local news that a small-town editor must cover and at the same time outpacing the FBI with his own investigations. “Stanley Nelson picked up the torch that was dropped all those years ago and continued the search for justice,” he said. “That’s true heroism.”

Robert Rosenthal, head of the Center for Investigative Journalism, calls Nelson “one of my heroes. He combines tenacity, courage and a special level of integrity that makes me proud to be associated with him.”

Wiley Hilburn and John Hays, were they still with us, would be pretty proud themselves.

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Du Pont files motion to block testimony about chemical leak violations in Ascension case 4 days after Texas plant deaths

Posted in Campaign Contributions, Courts, Governor's Office, Lawsuits, Taxes on November 23, 2014| 4 Comments »

Attorneys for the E.I Du Pont have filed a motion in limine which seeks to block plaintiffs in the pending litigation against the Ascension Parish plant from citing reports of prior leaks and regulatory proceedings against DuPont “not related to the gas leaks” at the Burnside facility.

DuPont’s motion is particularly timely in that it was filed only four days after the deaths of four DuPont workers following a toxic gas release at a Du Pont plant in La Porte, Texas.

Limine (lim-in-nay) is Latin for “threshold,” and is a motion made at the outset of a trial that requests that the presiding judge rule that certain evidence may not be introduced in trial.

A 22-year employee of DuPont’s Burnside plant filed a confidential lawsuit in the Middle District Federal Court in Baton Rouge two years ago which became known only last March that claims the plant has consistently been experiencing toxic gas leaks on almost a daily basis for more than two years without reporting the leaks to the Environmental Protection Agency (EPA) as required by the Toxic Substances and Control Act (TSCA) of 1976. https://louisianavoice.com/2014/03/31/whistleblower-claims-duponts-burnside-plant-has-been-leaking-carcinogenic-sulfer-trioxide-more-than-two-years/

Plaintiff Jeffrey M. Simoneaux, an Ascension Parish native who served for 14 years as chairman of the plant’s Safety, Health and Environmental Committee, also claims he was harassed, intimidated and denied promotions after he said he complied with DuPont’s own internal procedures for reporting a leak of sulfur trioxide (SO3) gas, a known carcinogen which is regulated under the Toxic Substance Control Act (TSCA) of 1976 and was reprimanded for doing so.

The case, should it go to trial, would be heard by Federal District Judge Shelly Dick and Magistrate Judge Stephen Riedlinger.

Simoneaux, who filed his suit under the 151-year-old False Claims Act (FCA), has listed as trial exhibits documents pertaining to leaks and releases at other DuPont plants, some of which have resulted in settlements with the government. He also has listed documents as yet to be obtained from various EPA offices through Freedom of Information Act requests that seek information about enforcement actions against DuPont.

“Because the exhibits regarding other leaks and enforcement actions do not relate to the leaks at the Burnside facility, (Simoneaux), his counsel and witnesses should be prohibited from mentioning, in any manner in the presence of the jury, such leaks, releases or regulatory proceedings,” said DuPont attorneys Monique Weiner and Lori Waters of the New Orleans firm of Kuchler, Polk, Schell, Weiner & Richeson in their memorandum that accompanied the actual motion.

“Evidence of leaks at other DuPont facilities and/or regulatory action against DuPont arising from situations not involving the gas leaks at the Burnside facility is irrelevant to the issues for determination by the jury in this case,” the motion says.

“DuPont will object to the introduction of such exhibits at trial as they are sought to be used or introduced,” it says. “But in advance of trial, DuPont seeks an order that counsel and the witnesses may not refer to these matters in questioning, testimony, during opening statement or in closing argument.”

The motion cited United States v. Beechum, a 1978 case which the defense attorneys say “requires a showing that the prior acts sought to be introduced are ‘relevant to an issue other than the defendant’s character. At the heart of this relevance inquiry is a question of similarity: ‘The relevance…must be determined with respect to the particular issue…”

The motion said that even if the court determines there is relevance, “the evidence would be confusing, prejudicial and a waste of time.”

A seven-member team of investigators from the Chemical Safety Board, the Occupational Safety and Health Administration (OSHA), and the Chemical Safety Board have already begun looking into the La Porte deaths of the four men, including two brothers. Among the first discoveries:

  • The men had been trapped for an hour by the poisonous methyl isocyanate for an hour before anyone at the plant called 911 at 4:13 a.m.;
  • It is unclear if the workers killed had any advance knowledge or warning of the degree of toxicity inside the unit;
  • Methyl isocyanate (MIC) is the same chemical that escaped a Bhopal, India, plant in 1984, killing more than 2,200 people;
  • Workers lacked quick access to breathing equipment that would have given them a chance at survival;
  • No DuPont official contacted a special emergency industrial response network called the Channel Industries Mutual Aide (CIMA), a nonprofit set up to deal with just such disasters;
  • It took 12 hours before DuPont confirm the four deaths;
  • DuPont never disclosed the size of its toxic inventory in reports filed annually with the La Porte emergency management officials;
  • Volunteer firefighters from nearby Deer Park who responded to the company’s 911 call were forced to rely on word-of-mouth to confirm quantities of the chemical leaked from the plant.

One other fact that could be crucial to Simoneaux’s case should Judge Dick deny the motion in limine and allow testimony about safety concerns at other plants:

The unit where the La Porte workers died had been shut down for five days before the Nov. 15 accident and workers had for months reported persistent maintenance problems, including inadequate ventilation in the unit.

Around 3:15 a.m., Gilbert Tisnado, 48, called his wife on his cell phone to tell her something had gone wrong in the unit. When he learned that his younger brother, Robert, 39, was among four men trapped in the unit, he grabbed an “escape pack” and entered the unit. Both brothers were among the four who subsequently died.

Firefighters found three bodies but only two tanks and masks inside the plant. Each was equipped with only five minutes of air—time for an emergency escape but not for a rescue mission.

Though the 911 call from DuPont was made at 4:13 a.m., more than two hours went by before “fenceline” air monitoring was conducted to learn if hazardous levels of chemicals had escaped the plant, leaving the community dependent upon DuPont to know if it was safe to go outside.

It also was unknown if DuPont even had any comprehensive toxics fenceline monitoring, said Adrian Shelley, director of the Air Alliance Houston advocacy group.

The refining industry, especially, has balked at calls for continuous fenceline monitoring, which provides streams of data about what gases are leaving a plant but can cost tens or hundreds of thousands of dollars, Shelley said. A U.S. Environmental Protection Agency rule that would require such systems at refineries is under review. Even if adopted, it wouldn’t apply to the DuPont plant because it doesn’t refine fossil fuels.

Simoneaux filed his lawsuit more than two years ago, on April 16, 2012, but because it was filed under seal, meaning it was not released to the media, its existence, along with DuPont’s October 2013 answers to discovery, has only recently been made public.

Simoneaux said DuPont identified gas leaks to which it will respond “only by visible assessment and (it) has no monitors at equipment sites.”

DuPont, headquartered in Wilmington, Del., was ranked 72nd on the Fortune 500 in 2013 and reported 2012 profits of nearly $2.8 billion, down more than 19 percent from 2011, according to a report by CNN Money.

Despite profits from its worldwide operations which employ 60,000 people, DuPont has for years avoided paying any federal income taxes.

The company has contributed more than $21,000 to various state politicians since 2003, including $4,500 to Gov. Bobby Jindal. Its plants in Burnside and in St. John the Baptist Parish have been granted more than $21 million in various state tax credits.

Those included, in order, the project, the year, parish, total investment, tax exemption and number of new jobs created:

  • Plant expansion, 2010, St. John the Baptist, $93 million $1.4 million five-year tax credit, 11 new jobs;
  • Plant expansion, 2008, St. John the Baptist, $58.8 million, 10-year property tax exemption of $10.9 million, five new jobs;
  • Retrofit project, 2010, Ascension, $72.2 million, 10-year property tax exemption, $541,000, three new jobs;
  • Miscellaneous capital addition, 2010, St. John the Baptist, $1.3 million, 10-year property tax exemption, no new jobs;
  • Plant addition, 2009, St. John the Baptist, $6.7 million, 10-year property tax exemption of $1.2 million, no new jobs;
  • Plant addition, 2009, Ascension, $45 million, 10-year property tax exemption, no new jobs.

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