June 2015

Occupational Hearing Loss (OHL) is one of the most prevalent work-related illnesses in the United States with 22 million workers exposed to hazardous noise each year, according to the Centers for Disease Control.

With approximately $242 million spent annually on workers’ compensation claims for disabilities arising from hearing loss, this number is set to increase in light of a new favorable holding for Louisiana employers with industrial workplace settings.
hearingThe Louisiana Supreme Court held in Arrant et al v. Graphic Packaging International, Inc. et al that defendant Graphic Packaging, which owns and operates a paper mill, box plant, and carton plant in West Monroe, Louisiana, is immune from suits in tort brought by its employees for noise-induced hearing loss injuries sustained from working around industrial machinery. The Supreme Court held that these injuries fell within the Louisiana Workers’ Compensation Act (“LWCA”) definitions of a covered “personal injury by accident” or an “occupational disease.”

“Arrant is the symbolic shot heard round the world in Louisiana when it comes to noise induced hearing loss suits.”

The Court heard testimony from expert audiologists that when high levels of energy enter the cochlea of the ear “it damages and destroys that row of hair cells in that particular part of the ear.” There is an “immediate injury to the inner ear” though the effect only becomes gradually perceptible over time and only with repeated or continuous exposures to high levels of noise. As such, the Court held that traumatic injury to the inner ear qualified as a personal injury by accident under the LWCA.

The Court also found that “hazardous levels of industrial noise . . . was a condition very characteristic of and peculiar to the particular employment of working in a paper mill or box plant” and as such was an occupational disease under the LWCA.

Caution-Hearing-Protection-RequiredThe legal effect of Arrant is that suits against an employer for noise induced hearing loss injuries are now within the exclusive remedy provision of the LWCA. The practical effect of Arrant is that noise-induced hearing loss suits against employers are coming to an end. While technically the LWCA provides an exception for intentional acts, this is a difficult burden to meet. Were plaintiffs to amend their petition to assert an intentional tort against their employers, they would have to prove that the employers either desired that their employees sustain noise-induced hearing loss, or were substantially certain that such injuries were going to occur from their work around noise producing machinery inside their facilities.

Simply, Arrant is the symbolic ‘shot heard round the world’ in Louisiana when it comes to noise induced hearing loss suits.
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MillerCoors LLC, owner of the Blue Moon Brewing Company (“Blue Moon”) brand and purported brewer of the Belgian-style witbier, recently removed to the U.S. District Court for the Southern District of California a class action lawsuit filed by Evan Parent on behalf of himself and all similarly situated consumers.  Despite the fact that he claims to be a “beer aficionado,[1]” Parent alleges to have purchased Blue Moon beer from various retailers from 2011 to mid-2012 under the mistaken belief that it was a “microbrew or ‘craft’ beer.” Parent asserts that MillerCoors deceptively marketed and charged a premium for Blue Moon beer by: (1) misleadingly characterizing it as a “craft” or “artfully crafted” beer; and (2) withholding the name “MillerCoors” from its label.

In 1980, there were 8 craft breweries in the United States. By 2014, that number had grown to 3,418.  During that time, craft breweries have slowly cut into the massive share of the $100 billion domestic beer market held by large breweries, such as Anheuser-Busch and MillerCoors. Craft beer has quickly grown from roughly a 3% market share in 2000 to 19% in 2014.  The large breweries have responded by creating their own “craft beer” brands, such as Blue Moon and Shock Top, and by purchasing craft breweries, such as Goose Island, Kona Brewing Co., Leinenkugel, and 10 Barrel Brewing.

Parent’s claim is founded upon the definition of “craft beer” set forth by the Brewer’s Association, a not-for-profit trade association, “dedicated to small and independent American Brewers, their beers and the community of brewing enthusiasts.”  The Brewer’s Association defines “American Craft Brewer” as:

  • Small: Annual production of 6 million barrels of beer or less;
  • Independent: less than 25 percent is owned or controlled by an alcoholic beverage industry member that is not itself a craft brewer; and
  • Traditional: a brewer that has a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation.

Parent alleges that Blue Moon is located in Coors Field, but that the Blue Moon beer sold in stores is brewed at MillerCoors’ Colorado and North Carolina breweries. Parent asserts that MillerCoors’ massive annual production takes it outside the definition of Craft Brewer set forth by the Brewers Association.

It is undisputed that MillerCoors does not qualify as a “Craft Brewer” pursuant to the guidelines set forth by the Brewer’s Association. Contrary to plaintiff’s assertion, however, the Brewer’s Association is not the arbiter of how “Craft Brewer” is defined.  Additionally, it remains to be seen whether “craft beer” can only be brewed by a “Craft Brewer.” In other words, it is unclear whether the term “craft beer” is reflective of the brewer who produces it or relates to the product itself. Does MillerCoors’ size preclude it from producing a “craft beer,” even if it uses quality ingredients and small batch sizes? Presumably, Parent will have a difficult time disputing the “quality” of Blue Moon beer given he purchased and consumed it
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