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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 36 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 20th day of May, 2003, are as follows: BY JOHNSON, J.: 2002-C- 1138 EILEEN GREGOR, ET AL. v. ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL. (Parish of Orleans) Retired Judge Walter I. Lanier, Jr., assigned as Associate Justice Ad Hoc, sitting for Associate Justice Chet D. Traylor, recused. The decision of the court of appeal that DHH is not entitled to discretionary immunity under La. R.S. 9:2798.1 is hereby affirmed. The court of appeal's allocation of fault is hereby reversed, and allocation of fault is reapportioned: 50% to Pascal's Manale and 50% to DHH. AFFIRMED IN PART; REVERSED IN PART. CALOGERO, C.J., concurs and assigns reasons. KIMBALL, J., concurs in part and dissents in part with reasons. VICTORY, J., dissents with reasons. KNOLL, J., dissents and assigns reasons.

5/20/03 SUPREME COURT OF LOUISIANA NO. 02-C-1138 EILEEN GREGOR, ET AL. Versus ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS JOHNSON, Justice.1 This matter arises from a suit filed by plaintiffs against several defendants, including the Department of Health and Hospitals (DHH)2 for the wrongful death of Daniel Gregor, who died after eating raw oysters at a Louisiana restaurant. After trial on the merits, the trial court found DHH 75% liable and the restaurant 25% liable. The court of appeal affirmed. We granted DHH's writ application to determine the correctness of the lower courts' decisions. Gregor v. Argenot Great Central Insurance Co., et al., 02-1138 (La. 6/21/02), 819 So.2d 336. After review of the record, we affirm in part, reverse in part, and reapportion the assignment of fault among the parties. FACTS AND PROCEDURAL HISTORY In 1990, Dr. Joel Nitzkin, the state health officer at the time,3 expressed concern about the growing problem of vibrio vulnificus cases in Louisiana. Vibrio
Retired Judge Walter I. Lanier, Jr., assigned as Associate Justice Ad Hoc, sitting for Associate Justice Chet D. Traylor, recused. Plaintiffs, in their original Petition for Damages, erroneously referred to DHH as the Louisiana Department of Health and Human Resources (DHHR). The state health officer is the state official responsible for implementation and enforcement of the state sanitary code. 1
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vulnificus, a naturally occurring salt water organism not dangerous to most people, can be dangerous to those persons with chronic health problems, including gastric disorders, liver diseases, and immune disorders. Proper cooking will kill the bacteria. In August 1982, DHH issued to physicians and hospitals a "Monthly Morbidity Report" dealing with vibrio vulnificus infections. The report stated, "[b]ecause of the severity and high case fatality rate for the septicemia cases, physicians should warn patients with chronic underlying liver and kidney diseases and other conditions causing, or capable of causing, impaired immune responses, to avoid eating raw oyster." Despite DHH's warnings to physicians and communication with the seafood industry, the number of vibrio vulnifcus cases continued to increase. Dr. Nitzkin's concern regarding the bacteria ultimately lead to the amendment of the sanitary code to require restaurants serving raw oysters to provide warnings about vibrio vulnificus. In August 1990, DHH published a notice of intent in the Louisiana Register, indicating its plan to implement such an amendment. Despite opposition from the Louisiana Restaurant Association (LRA), DHH published the rule requiring mandatory oyster warnings in the Louisiana Register in February 1991. The rule amended

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