Roy Pearson, the Washington judge who sued his dry cleaner after they lost his pants, has lost his job.  Mr. Pearson had been up for a ten year appointment to the bench.  Instead, the Washinton Post reports that he received a letter yesterday at 3:30 p.m. telling him to vacate his office by 5:00 p.m.  Hopefully, this is the last chapter in the sad saga of Mr. Pearson’s lawsuit.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

MSNBC correspondent Bob Sullivan has a new article at his blog, The Red Tape Chronicles, entitled “How Arbitration Steals Your Day In Court.”  The introduction is telling:

If I told you there was a courtroom in America where consumers lose lawsuits to businesses 94 percent of the time, and there is no chance to appeal, you’d probably never want to go there.

But here’s the problem: You don’t have a choice, thanks to small print.

Many of the facts from the article from from a report by Public Citizen.  One the of the many startling findings as that:

Public Citizen found one arbitrator had ruled 1,292 times during the span — and only 21 times for the consumer. On one particularly busy day, he ruled on 68 cases — all in favor of companies.

Fortunately, there are currently Congressional proposes to reign in arbitration abuses.  Earlier this year, Senate Democrats introduced the Arbitration Fairness Act of 2007.  It is currently under debate.

As for us, we continue to think that arbitration is appropriate in many cases.  But parties can’t know whether arbitration is an appropriate remedy until they look at individual disputes.  As a result, we’re opposed to mandatory arbitration agreements, but do support arbitrating some cases as the disputes warrant.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Last Friday, the Texas Supreme Court denied petitions for review filed by both sides in BFI Waste Systems of North America, Inc. v. Browning-Ferris Industries, Inc. However, in denying the petitions, the Court issued a per curiam opinion criticizing the court of appeals for issuing a footnote on an issue that was not raised in the trial court or the court of appeals and was not briefed by any of the parties.

However, the Supreme Court itself chose the same tactic on a critically important personal injury case just a few months ago. One of the current hot issues in personal injury litigation is the “paid or incurred” issue. Many personal injury victims have health insurance, and those health insurers often have contracts with medical providers that reduce the bills. For example, a physician may charge a patient without insurance $1,000.00 for a particular procedure, but the physician would have an agreement with the insurance companies to only charge $750.00 for the same procedure. Texas has a long standing rule called “the collateral source rule” that says that defendants should not receive the benefits of any collateral source of payment made by or on behalf of a plaintiff. For example, in a wrongful death case, a defendant couldn’t reduce the damages awarded against it by any life insurance that the plaintiff had purchased. But the most prevalent occurrence of the rule was in the routine personal injury case with health insurance. Because of the collateral source rule, plaintiffs were entitled to ask for the full $1,000.00 charged by a medical provider and not the reduced amount paid by a health insurance company.

Two legislative sessions ago, the legislature passed a law saying that personal injury plaintiffs were entitled to seek recovery for any amounts “paid or incurred” by them or on their behalf. But the legislature didn’t say what that means. Plaintiffs’ lawyers claim that the full amount of the bills are incurred and, thus, plaintiffs are entitled to ask a jury for the full amount of the bills. Defense lawyers claim that if a plaintiff has health insurance, then the plaintiff can only ask for the amount actually paid by the plaintiff and health insurer. So it’s a big quandry.

During the last legislative session, the legislature didn’t offer any guidance, but did pass legislation that clarified that the “paid or incurred” rule only applied to medical malpractice litigation. Unfortunately, Governor Perry played lap dog to insurance companies and big business and vetoed that bill.

So today, approximately three years after the law was passed, we do not have any legislative guidance about what this means and we don’t have any established court of appeals opinions giving us an answer to what it means.

But the Texas Supreme Court tried to change that. In Daughters of Charity Health Services of Waco v. Linnstaedter (handed down June 1, 2007 after being argued on Feb. 14, 2006), the Court slipped in a footnote on the “paid or incurred” issue. At that time, it was not an issue that was before the Court (the new law went into effect long after the facts of the case occurred), and it was not an issue that was briefed by any of the parties. It was merely an attempt by the Court to do the exact same thing that they now chastise the BFI Court of Appeals for doing.

When this issue is addressed in the future, we only hope that the Courts of Appeals and the Supreme Court itself ignore this ill-placed dicta.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Today’s New York Times again spotlights the Consumer Products Safety Commission’s failure when it comes to defective products:

Walter E. Friedel’s plans to waterproof the tile floors of his hot tub room using Stand ’n Seal, a do-it-yourself product sold at his local Home Depot, promised to be a quick weekend project, one he could wrap up in time to catch the Giants football game on a Sunday afternoon.

The product offered “a revolutionary fast way” to seal grout around tiles and, its label boasted, any extra spray would “evaporate harmlessly.”

“It sounds like no big deal,” Dr. Friedel said, looking back.

But instead of watching football that afternoon, Dr. Friedel, a 63-year-old physician, ended up being rushed to the hospital, where he would spend four days in intensive care, gasping for air, his lungs chemically inflamed.

Dr. Friedel was the latest victim of a product whose dangers had become known months earlier to the Consumer Product Safety Commission and the companies that made and sold it. Before Dr. Friedel bought Stand ’n Seal, at least 80 people had been sickened using it, two of them fatally.

But even then, with the threat well-documented, the manufacturer, retailer and the commission had failed to remove the hazard from the shelves.

The story goes on to document the history of problems surrounding the product and the government’s failure (because of lack of resources and lack of will) to protect the public.

This continues a long line of recent stories where the CPSC was aware of dangers but failed to take proper action to protect the public.  And that’s important.  But, as we’ve written before, these stories are also important because they show the flawed nature of the Bush administration’s policy of encouraging federal preemption of state tort laws.

Mark Perlmutter & Brooks Schuelke are Austin, Texas personal injury lawyers.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Some of our most popular posts are posts about text messaging while driving.  Apparently, this is a bigger concern to people than we thought.

Now, at least some people are doing something about it.  Phoenix has recently banned text messaging while driving.  From the article:

Phoenix is the first city in Arizona and one of the first in the nation to specifically ban texting while driving.

Phoenix also will lobby Arizona lawmakers to pass a statewide ban next year. Through Oct. 20, drivers pulled over for texting will receive a warning. After that, they can be fined $100, or $250 if an accident is involved.

The ban was proposed after a traffic crash last month in Glendale in which a car driven by an 18-year-old woman drifted across the center line while she was texting. She ran into a car driven by another woman. Both women died.

Maybe if other cities and states follow suit, we can prevent a few people from becoming personal injury victims.

Thanks to Greensboro personal injury lawyer Dan Deuterman for the link.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

We would be remiss if we didn’t comment on two of the bigger sexual harassment stories to make the popular press. Yesterday, a jury found that New York Knicks coach Isaiah Thomas and Madison Square Garden sexually harassed a former Madison Square Garden employee. The jury awarded the former team executive $11.6 million for her claim.

Last week, Federal Judge Sam Kent of Galveston was reprimanded after a four-month investigation into allegations of sexual impropriety and abuse of power. (Kent has previously been known for his sometimes outrageous opinions. You can view two samples here and here.)

These latest stories both prove that sexual harassment can occur anywhere. And victims shouldn’t refuse to stand up for their rights simply because their employer might be someone famous or powerful.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

The Houston Chronicle has a great story about Dr. Forney Fleming, a spokesman for Texans For Lawsuit Reform. Dr. Fleming was a key spokesperson for TLR and even prominently featured on its website. But, according to the Chronicle, TLR forgot to tell you that Dr. Fleming was reprimanded by the Texas Medical Board for substandard care and was accused by the Board of providing substandard care to at least six other patients (those claims were still pending when Dr. Fleming let his medical license lapse). The article reports that Dr. Fleming was also sued or threatened with malpractice suits three times.

Since the Chronicle started investigating its story, TLR has tried to distance itself from Dr. Fleming. But Texas Watch was able to document Dr. Fleming’s TLR bio, which is available here.

The sad thing is that this isn’t unusual. Author Stephanie Mencimer says that one of the things that prompted her to write her book Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue was the often unsavory background of the people that various tort reform groups chose to use as their “case studies” to prove why the system is broken.  For instance, Ms. Mencimer tells the story of Dr. Robert Zaleski.  In January 2003, doctors in Wheeling, West Virginia made national news by walking off the job to protest higher medical malpractice rates.  Dr. Zaleski was one of the key faces of the walkout, making the rounds of TV shows and news, including being featured on CNN and in the New York Times.   In fact, Dr. Zaleski was even personally invited by President Bush to attend a speech in Scranton, Pennsylvania, where Bush spoke about “out of control lawsuits.”

But again, the tort reform groups didn’t do their homework.  Ms. Mencimer writes that Dr. Zaleski had been sued over fourteen times by his patients and admitted in a deposition in one of the lawsuits that he had been addicted to prescription painkillers for a substantial part of the time that he was operating on patients in the early 1980s.  And, she continues, not only was he an addict, but to maintain his habit, he allegedly wrote prescriptions to other local addicts, who filled them and then kicked pills back to the doctor.  As Ms. Mencimer puts it, “Given this history, the real scandal may not be how high Zaleski’s insurance premiums are, but the fact that he can get insurance at all.”

Unfortunately, these are the sorts of lies and half-truths that tort reform groups are using to not only push for reform, but to poison potential juries against personal injury cases.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.