MBLB https://mblb.com/ Trust anchors everything we do Thu, 26 Jan 2023 16:52:29 +0000 en-US hourly 1 https://mblb.com/mblb/wp-content/uploads/2020/10/mblb_favicon2020-150x150.png MBLB https://mblb.com/ 32 32 District Court Stays Direct-action Claim Against Insurers Pursuant to Bankruptcy Stay Provision https://mblb.com/insurance-defense/district-court-stays-direct-action-claim-against-insurers-pursuant-to-bankruptcy-stay-provision/#utm_source=rss&utm_medium=rss&utm_campaign=district-court-stays-direct-action-claim-against-insurers-pursuant-to-bankruptcy-stay-provision Thu, 26 Jan 2023 16:47:14 +0000 https://mblb.com/?p=14806 In a pending asbestos case, the U.S. District Court, Middle District of Louisiana, recently stayed a direct-action claim against two insurers pursuant to the automatic bankruptcy stay provision in 11 U.S.C. § 362(a).[1] Reulet v. Lamokak Insurance Company – Background Plaintiffs in Reulet v. Lamokak Insurance Company brought a wrongful death and survival action for damages … More»

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In a pending asbestos case, the U.S. District Court, Middle District of Louisiana, recently stayed a direct-action claim against two insurers pursuant to the automatic bankruptcy stay provision in 11 U.S.C. § 362(a).[1]

Reulet v. Lamokak Insurance Company – Background

Plaintiffs in Reulet v. Lamokak Insurance Company brought a wrongful death and survival action for damages related to the 2019 death of Decedent, Kirk Reulet. Decedent’s 45-year long career as a welder was the alleged source of his exposure to asbestos that caused his development of terminal mesothelioma. Plaintiffs sought damages from multiple defendants, including a direct action under the Louisiana Direct Action Statute against two insurers of a now-bankrupt non-party, Reilly-Benton Company, Inc. (Reilly-Benton), that manufactured and delivered asbestos-laden products to Decedent’s worksites. Reilly-Benton’s bankruptcy was ongoing and potentially involved thousands of asbestos-related claims. The insurers moved to dismiss or stay the claims against them pursuant to the automatic bankruptcy stay provision in 11 U.S.C. § 362(a).

Court Ruling

Under §362 of the Bankruptcy Code, the filing of a bankruptcy petition operates as an “automatic stay” or injunction with respect to various acts concerning “property of the estate.” The Fifth Circuit has held under “limited circumstances,” including instances “where a siege of tort claimants threaten the debtor’s estate over and above the policy limits,” the policy proceeds are classified as property of the estate. Since insurance proceeds in these “limited circumstances” are property of the debtor’s estate, direct actions against insurers for these proceeds are subject to the automatic stay provision in the Bankruptcy Code.

The Court, in accordance with a recent Eastern District of Louisiana decision, held that the Bankruptcy Court was the best forum to decide whether the plaintiffs’ claims should be pursued through the Reilly-Benton bankruptcy proceedings or otherwise, and stayed the direct action claims against the two insurers.

Read the full case here.

[1] Reulet v. Lamorak Ins. Co., 2022 U.S. Dist. LEXIS 191337, at *22 (M.D. La. Oct. 19, 2022).

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Use of Third Party Billing Agent Not Enough to Invoke Collateral Source https://mblb.com/insurance-defense/use-of-third-party-billing-agent-not-enough-to-invoke-collateral-source/#utm_source=rss&utm_medium=rss&utm_campaign=use-of-third-party-billing-agent-not-enough-to-invoke-collateral-source Tue, 24 Jan 2023 15:19:36 +0000 https://mblb.com/?p=14795 In the personal injury lawsuit, Walter George v. Progressive Waste Solutions of LA, Inc., 2022-CC-01068, the Louisiana Supreme Court found that the collateral source rule does not apply if there is no evidence Plaintiff was released from their original obligation to pay their medical bills, even if Plaintiff’s medical providers entered into an agreement with … More»

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In the personal injury lawsuit, Walter George v. Progressive Waste Solutions of LA, Inc., 2022-CC-01068, the Louisiana Supreme Court found that the collateral source rule does not apply if there is no evidence Plaintiff was released from their original obligation to pay their medical bills, even if Plaintiff’s medical providers entered into an agreement with a third party billing agent to accept less than the billed amount.

Walter George v. Progressive Waste Solutions of LA, Inc. – Background

On December 29, 2015, Plaintiff was picking up garbage on his street when he was struck by a Progressive Waste garbage truck and sustained injuries. Plaintiff was treated by Champion Medical Center (“Champion”) for his injuries and received a back surgery totaling $192,020.14.

On December 1, 2016, Champion entered into a “Professional Service Agreement” with Ascendant Healthcare (“Ascendant”). The agreement provided that Ascendant would act as the billing agent for Champion. Champion would invoice Ascendent for the full price of the back surgery but accept half the billed charges as full and final reimbursement for services rendered. Ascendant also agreed to pay Champion by a certain date. Champion further assigned to Ascendant their rights to a medical lien regarding any proceeds recovered by Plaintiff under La. R.S. 9:4752.

On January 17, 2017, Plaintiff’s former counsel executed a Letter of Guaranty and Protection. The letter acknowledged Ascendent retained a privilege on any net proceeds payable to Plaintiff from the amount recovered in the lawsuit. The letter was only signed by the attorney.

On March 10, 2020, and after initial discovery, Progressive filed a Motion in Limine, seeking to exclude Plaintiff’s medical bills charged to Ascendant. Progressive argued the billed amount was not relevant because there was no evidence Plaintiff was personally responsible for payments to Ascendant and therefore the collateral source rule did not apply. Plaintiff argued they were liable to Ascendant for the full amount of the medical bills as a result of the agreement between Ascendant and Champion and therefore should be entitled to show the jury the full-billed medical charges. After some delays, the trial court granted Progressive’s motion, and ruled Plaintiff may only present the discounted medical charges at trial.

Court of Appeal, First Circuit, Denies Plaintiff’s Writ Application

The Court of Appeal, First Circuit, denied Plaintiff’s writ application, with one dissent. The dissent noted in the absence of evidence showing Plaintiff was not liable for the full amount billed, Progressive could not subtract the discounted medical bills from a theoretical damage award to Plaintiff.

Louisiana Supreme Court Reversal

Plaintiff appealed to the Louisiana Supreme Court. The Court granted Plaintiff’s writ application, and reversed.

The issue for the Court was whether Plaintiff had been released from his original and separate obligation to pay their medical bills. The Court noted Plaintiff and Ascendant agreed to the assumption of Plaintiff’s obligation, but that Ascendant’s agreement with Champion did not release Plaintiff from their obligation. Plaintiff was not a party to the agreement between Ascendant and Champion, nor was there any language in the agreement releasing Plaintiff from their obligation to pay their medical bills as charged.

Similarly, the Court noted the letter of guarantee from Plaintiff’s counsel did not evidence any intent to release Plaintiff from any obligation to pay their medical bills as charged. The Court found the collateral source rule did not apply because: 1) the application of the rule to this particular case would not support the policy consideration of tort deterrence, and 2) Plaintiff had not diminished his patrimony to receive medical treatment from his medical providers, and 3) there was no indication Plaintiff would have received a “double recovery,” should he be awarded the full-billed charges.

Reverse and Remanded.

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Annual Adjustment to Longshore Penalties Announced by U.S. Department of Labor https://mblb.com/lhwca-dba-whca/annual-adjustment-to-longshore-penalties-announced-by-u-s-department-of-labor-2/#utm_source=rss&utm_medium=rss&utm_campaign=annual-adjustment-to-longshore-penalties-announced-by-u-s-department-of-labor-2 Wed, 18 Jan 2023 19:27:17 +0000 https://mblb.com/?p=14782 The Department of Labor published a final rule on January 13, 2023 adjusting penalties under the Inflation Adjustment Act for 2023. Annual adjustments to penalties assessed by the Office of Workers’ Compensation Programs under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq., are as follows: Section 14(g) of the Act, 20 C.F.R. § … More»

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The Department of Labor published a final rule on January 13, 2023 adjusting penalties under the Inflation Adjustment Act for 2023. Annual adjustments to penalties assessed by the Office of Workers’ Compensation Programs under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq., are as follows:

Section 14(g) of the Act, 20 C.F.R. § 702.236: Failure to Report Termination of Payments (Form LS-208): The penalty amount has increased from $320.00 to $345.00.

Section 30(e) of the Act, 20 C.F.R. § 702.204: Penalty for Late Report of Injury or Death (Form LS-202): The maximum penalty amount has increased from $26,269.00 to $28,304.00.

Section 49 of the LHWCA, 20 C.F.R. § 702.271(a)(2): Discrimination Against Employees Who Bring Proceedings: The penalty amount has increased from a $2,627.00 minimum and a $13,132.00 maximum to a $2,830.00 minimum and $14,149.00 maximum.

These increases in penalties took effect January 15, 2023.

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MBLB MLK First Annual Day of Service https://mblb.com/community-news/mblb-mlk-first-annual-day-of-service/#utm_source=rss&utm_medium=rss&utm_campaign=mblb-mlk-first-annual-day-of-service Tue, 17 Jan 2023 17:07:36 +0000 https://mblb.com/?p=14764 Of the 369,250 residents of New Orleans, almost 7,000 are homeless and twice that number meet HUD’s definition of homelessness. The lack of affordable housing, domestic violence and disabilities such as mental health/substance abuse contribute to the cycle of chronic homelessness in New Orleans. Grace at The Green Light is a 501c3 that has been … More»

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MBLB MLK Day of Service group photoOf the 369,250 residents of New Orleans, almost 7,000 are homeless and twice that number meet HUD’s definition of homelessness. The lack of affordable housing, domestic violence and disabilities such as mental health/substance abuse contribute to the cycle of chronic homelessness in New Orleans.

Grace at The Green Light is a 501c3 that has been hard at work changing the culture of our great city since June 1st, 2014. Every day, its mission is to provide care for the people who need it the most. We’ve all seen someone down and out looking for a little hope at the green lights, and as we speed away to our lives, they’re still there. Grace at The Green Light hopes to provide essentials to not only help New Orleans homeless, but to show them there are people out there who do care about them.

Our MBLB team joined in that mission for our first annual Day of Service in honor of Dr. Martin Luther King, Jr. who said, “Everybody can be great, because everybody can serve.” Working with other volunteers and staff at Grace at the Green Light, our team helped to serve 112 homeless people a hot breakfast, cleaned and painted the dining room and donated and sorted clothing.

MBLB attorneys and staff at Grace on the Green Light

 

MBLB attorneys and staff at Grace on the Green Light

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MARTIN LUTHER KING JR DAY: A Day of National Service https://mblb.com/firm-news/martin-luther-king-jr-day-a-day-of-national-service/#utm_source=rss&utm_medium=rss&utm_campaign=martin-luther-king-jr-day-a-day-of-national-service Mon, 16 Jan 2023 18:20:13 +0000 https://mblb.com/?p=14777 Martin Luther King, Jr. Day memorializes the work of Martin Luther King, Jr. (more commonly known as “MLK Jr.”), a Baptist minister and one of the most respected and renowned leaders of the American Civil Rights Movement. MLK Jr. became a prominent civil rights activist in the 1950s. He fought for racial equality and social … More»

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MBLB MLK Day of Service group photo
MBLB MLK Day of Service group at Grace at the Greenlight

Martin Luther King, Jr. Day memorializes the work of Martin Luther King, Jr. (more commonly known as “MLK Jr.”), a Baptist minister and one of the most respected and renowned leaders of the American Civil Rights Movement. MLK Jr. became a prominent civil rights activist in the 1950s. He fought for racial equality and social change through nonviolent resistance, such as protests, marches, and boycotts. MLK was awarded the Nobel Peace Prize in 1964 for his work. After he was assassinated in 1968, his supporters continually commemorated him, but MLK Day did not become a federal holiday until 1983 and was not nationally observed until 1986.

Today, we still celebrate MLK Jr.’s efforts and achievements every year on the third Monday in January, and we remember his incredible fight for the black community and all of the positive effects he had on our country.

MLK DAY AS A DAY OF SERVICE

“Everybody can be great, because everybody can serve.”

These wise words by the great Martin Luther King, Jr. come from his speech entitled “Drum Major Instinct,” which was given on February 4, 1968 to his congregation. MLK Jr. emphasized that everyone, no matter their education level or socioeconomic status, has the ability to serve others as long as they have a “heart full of grace.” He envisioned that service would be a way to break barriers between races, allowing everyone to work together towards a common goal.

Martin Luther King, Jr. Day is the only federal holiday that has been designated by Congress as a National Day of Service. Whichever way that you serve, one of the pillars of MLK Day is to provide meaningful change to the community.

Continue reading MARTIN LUTHER KING JR DAY: A Day of National Service >

MBLB’S COMMITMENT TO DIVERSITY

MBLB strives to be a diverse law firm. Our goal is to create and maintain an environment that welcomes and fosters mutual respect for different perspectives, backgrounds and life experiences regardless of gender, race, creed, color, national origin, religion, sexual orientation, age or disability. We are committed to ensuring that professional growth and advancement are based on capability and performance and recognize that a diverse workforce enriches our experiences and lends to our success. We value and support all who positively contribute to our practice and our community.

MBLB’s Diversity, Equity & Inclusion Committee members include Members Alan Brackett, Mike Parks, Dan Sullivan and Simone Yoder, Associates Tyler Loga and Taylor Tran and Human Resources Director, Linda Castanza.

Among the initiatives the DE&I Committee has launched is the Affinity newsletter, which allows diverse voices and points of view to be shared, both within our firm and externally. The newsletter is intended to educate, particularly on historical diversity issues and their impact on or by the law. While these articles provide valuable perspective, they are not intended to espouse a position by the firm.

Let’s start a conversation!

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Simone H. Yoder Elected Equity Member of MBLB https://mblb.com/firm-news/simone-h-yoder-joins-mblb-as-an-equity-member/#utm_source=rss&utm_medium=rss&utm_campaign=simone-h-yoder-joins-mblb-as-an-equity-member Thu, 05 Jan 2023 22:36:27 +0000 https://mblb.com/?p=14748 Mouledoux Bland Legrand & Brackett, LLC. is pleased to announce that Simone H. Yoder was elected an equity member of the firm on January 1, 2023. About Simone H. Yoder Simone Yoder’s practice focuses on the defense of employers and national insurance carriers for claims arising under Longshore and Harbor Workers’ Compensation Act, Defense Base … More»

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Mouledoux Bland Legrand & Brackett, LLC. is pleased to announce that Simone H. Yoder was elected an equity member of the firm on January 1, 2023.

About Simone H. Yoder

Simone YoderSimone Yoder’s practice focuses on the defense of employers and national insurance carriers for claims arising under Longshore and Harbor Workers’ Compensation Act, Defense Base Act and Louisiana Workers’ Compensation Act. As supported by the peer recognition she has received, including Louisiana Super Lawyers Rising Stars and Best Lawyers: Ones to Watch, Simone has developed a reputation as a skilled attorney in workers’ compensation law. She has successfully argued motions and participated in conferences and hearings before the Department of Labor in both state and longshore matters, and also before District Court Judges throughout Louisiana.

Simone’s expertise in her field of practice has allowed her to confidently advise her clients and obtain successful resolutions for them. “From the very beginning of my career, I have worked to defend employers and carriers in workers’ compensation matters. I am knowledgeable in this area of the law and enjoy devising a litigation strategy that affords my clients the best opportunity for a favorable outcome. I also enjoy developing relationships with my clients and working with them to achieve desired results.”

Learn more about Simone Yoder >

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Mark Hanna and John Zazulak Secure Summary Judgment in Municipal Law Case https://mblb.com/municipal-law/mark-hanna-and-john-zazulak-secure-summary-judgment-in-municipal-law-case/#utm_source=rss&utm_medium=rss&utm_campaign=mark-hanna-and-john-zazulak-secure-summary-judgment-in-municipal-law-case Wed, 04 Jan 2023 19:07:50 +0000 https://mblb.com/?p=14744 MBLB attorneys Mark Hanna and John Zazulak recently secured a summary judgment in favor of their clients, the East Jefferson Levee District (EJLD) and South Louisiana Flood Protection Authority-East (SLFPA-E). A cyclist riding on the levee access road brought claims against these municipal clients for negligence after suffering a fall while riding. The cyclist asserted … More»

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MBLB attorneys Mark Hanna and John Zazulak recently secured a summary judgment in favor of their clients, the East Jefferson Levee District (EJLD) and South Louisiana Flood Protection Authority-East (SLFPA-E). A cyclist riding on the levee access road brought claims against these municipal clients for negligence after suffering a fall while riding.

The cyclist asserted a claim against the EJLD, SLFPA-E and the contractors completing some irrigation work on the adjacent levee. The cyclist asserted that the defendants were liable for his injuries because they failed to provide warnings against any potential dangers in the construction zone.

Under La. R.S. 38:301(E)(1), a plaintiff cyclist bringing a claim against a levee district must show that the Levee District acted with gross negligence, i.e., the “entire absence of care” and the utter disregard of prudence, amounting to the complete neglect of the rights of others. In addition, a recreational use immunity applies under La. R.S. 9:2795, when a landowner such as a levee district allows the public to use the land for cycling and other recreational purposes.

The Twenty-Fourth Judicial District Court found that the cyclist could not provide sufficient evidence that the EJLD and SLFPA-E acted with gross negligence resulting in the accident. The Court’s decision resulted in a complete dismissal of all claims against the EJLD and SLFPA-E.

Elmore Tregre, II v. BIS Services, LLC, the East Jefferson Levee District, and the Southeast Louisiana Flood Protection Authority-East

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JoAnn H. John and Michael T. Neuner Elected Members of MBLB https://mblb.com/firm-news/joann-t-hymel-and-michael-t-neuner-elected-members-of-mblb/#utm_source=rss&utm_medium=rss&utm_campaign=joann-t-hymel-and-michael-t-neuner-elected-members-of-mblb Tue, 03 Jan 2023 16:57:03 +0000 https://mblb.com/?p=14713 Mouledoux, Bland, Legrand & Brackett is pleased to announce that JoAnn H. John and Michael T. Neuner have been elected members of the firm. Managing Member Alan G. Brackett said, “We are thrilled to have JoAnn and Mike join us as members of the firm. Both began their legal careers with other law firms and … More»

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Mouledoux, Bland, Legrand & Brackett is pleased to announce that JoAnn H. John and Michael T. Neuner have been elected members of the firm.

Managing Member Alan G. Brackett said, “We are thrilled to have JoAnn and Mike join us as members of the firm. Both began their legal careers with other law firms and joined MBLB in order to find a practice that better reflected their values. Since they came to MBLB, they have demonstrated their commitment to our clients and developed their skills as litigation attorneys. They’ve earned our trust and as importantly, the trust of our clients.”

About JoAnn JOHN

JoAnn HymelJoAnn’s areas of practice include the defense of employers and insurance carriers for claims arising under the Louisiana Workers’ Compensation Act, Longshore and Harbor Workers’ Compensation Act, Defense Base Act, and War Hazards Compensation Act. She was included in Louisiana Super Lawyers Rising Stars for Workers Compensation for the second year in a row and was featured by New Orleans CityBusiness as “Ones to Watch: Law.”

Learn more about JoAnn >

About Michael Neuner

Associate attorney Michael NeuterMichael’s practice focuses on admiralty and maritime litigation and insurance defense. Prior to joining MBLB, he gained significant experience handling a variety of cases for both plaintiffs and the defense, including premises liability, environmental disasters, personal injury, and class action settlements. He was selected for Best Lawyers: Ones to Watch – Insurance Law this year and currently serves as a Board Member of the Mariners Club of the Port of New Orleans.

Learn more about Mike >

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Alan Brackett Interviewed About Mentoring in Fraternity Magazine https://mblb.com/firm-news/alan-brackett-interviewed-about-mentoring-in-fraternity-magazine/#utm_source=rss&utm_medium=rss&utm_campaign=alan-brackett-interviewed-about-mentoring-in-fraternity-magazine Fri, 30 Dec 2022 19:32:18 +0000 https://mblb.com/?p=14719 Managing Member Alan G. Brackett has been highly involved in his fraternity, Delta Tau Delta, as an alumnus of Tulane University. He has served as International President, Vice President, Second VP, Secretary, Southern Division President and the Director of the Educational Foundation. One of the most rewarding aspects of his continuing involvement with his fraternity … More»

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Managing Member Alan G. Brackett has been highly involved in his fraternity, Delta Tau Delta, as an alumnus of Tulane University. He has served as International President, Vice President, Second VP, Secretary, Southern Division President and the Director of the Educational Foundation. One of the most rewarding aspects of his continuing involvement with his fraternity has been the opportunity to mentor a younger member.

Alan was recently featured in an article, “Intergenerational Mentorship,” in the Delta Tau Delta’s magazine, The Rainbow. As Alan notes, “Mentoring is such an important part of life. Part of the human experience is to share mentoring, it’s what we do.”

Intergenerational Mentorship

Intergenerational relationships are among the many benefits of membership Delta Tau Delta. The bond between brothers of different eras often results in mentoring relationships that last for decades. Alan G. Brackett (Tulane University 1982) first met Tim P. Cullen (Tulane University 2009) when Cullen was an undergraduate. Early on Cullen and Brackett became best friends. Recently, these men sat down with the Foundation to talk about the importance of mentorship.

Continue reading on The Rainbow >

Download a PDF of Intergenerational Mentorship >

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Edward McAuliffe Presents a CLE on Louisiana Crime Victims’ and Witnesses’ Rights for NOBA https://mblb.com/firm-news/edward-mcauliffe-presents-a-cle-on-louisiana-crime-victims-and-witnesses-rights-for-noba/#utm_source=rss&utm_medium=rss&utm_campaign=edward-mcauliffe-presents-a-cle-on-louisiana-crime-victims-and-witnesses-rights-for-noba Wed, 28 Dec 2022 16:12:39 +0000 https://mblb.com/?p=14708 On December 27, 2022, MBLB attorney Edward McAuliffe taught a continuing legal education program for the New Orleans Bar Association’s end-of-year seminar.  The topic was “Louisiana Crime Victims’ and Witnesses’ Rights.” The educational program stemmed from pro bono work Edward undertook earlier in 2022, representing a victim, the mother of a deceased pedestrian killed in a … More»

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J Edward McAuliffe IIIOn December 27, 2022, MBLB attorney Edward McAuliffe taught a continuing legal education program for the New Orleans Bar Association’s end-of-year seminar.  The topic was “Louisiana Crime Victims’ and Witnesses’ Rights.” The educational program stemmed from pro bono work Edward undertook earlier in 2022, representing a victim, the mother of a deceased pedestrian killed in a hit-and-run, and obtaining restitution for her through the criminal process. Edward had previously taught Victims’ Rights to young prosecutors when he was an Assistant District Attorney and was excited to bring this programming to a wider audience of attorneys.

As for the pro bono case, Edward would like to call attention to the strength and resolve of Christa Lane-Larsen, whose daughter Christina was killed on February 27, 2021, while walking her dog across St. Charles Avenue in New Orleans.

“By all accounts, Christina Larsen was a wonderful young lady. New Orleans was her adopted home. She came to this city for the best it had to offer, but she received the worst. It was an honor and a pleasure to represent Christina’s mother, Christa, who steadfastly pursued justice for her daughter. Providing education on the rights of victims and witnesses of crime seemed a fitting way to honor Christina’s memory.”

About J. Edward McAuliffe

Associate Edward McAuliffe’s practice areas focus on trucking and transportation and insurance defense. Prior to joining MBLB, Edward was an Assistant District Attorney in New Orleans, where he rose quickly through the ranks, eventually heading up the District Attorney’s Bond and Asset Forfeiture Division. He represented his office at the Louisiana District Attorney’s Association, aided in overseeing civil litigation, and implemented new policies and procedures both in his office and throughout the New Orleans criminal justice system.

While Edward is known for working with his opponents to reach amicable resolutions whenever possible, he will draw a hard line in the sand when his clients’ interests require it. “Being tough and being professional are not mutually exclusive. I ‘grew up’ as a lawyer in the school of hard knocks at Tulane and Broad. The courtroom, trial, administrative, and legislative experiences I gained as an ADA are invaluable. The same tenacity I brought to the criminal arena I maintain in defense of my civil clients.”

Learn more about Edward McAuliffe >

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