Austin Law Blogs

This is a diversion from our regular personal injury and litigation news, but I saw Kevin O’Keefe had a post earlier this week that Austin was the top blogging city in the country. If that’s the case, why are there so few law blogs in town. Aside from this one, the only active law blogs I know of are the following:

Todd Smith’s Texas Appellate Law Blog

Jamie Spencer’s Austin Criminal Defense Lawyer and Austin DWI Lawyer blogs

Wayne Schiess’s blog

Michael Fox’s Jottings By An Employer’s Lawyer

Don Cruse’s Supreme Court of Texas blog

Taralynn Mackay’s A Nurse Attorney’s Thoughts and Texas Nursing Jurisprudence blogs

In a town this size, with this many tech-savvy attorneys, I would expect more blogs. And if I left any active blogs off, please let me know (and yes, there are other old blogs or “blogs” that are just advertisements, that I didn’t include — I don’t need to know about them).

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Lawmakers and the Supreme Court, Part 2

Yesterday, we posted about four Texas legislators who filed an amicus brief crticizing the Texas Supreme Court for an opinion in an on-the-job injury case.  Now we have a copy of the legislators’ brief, and it is posted here.

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Personal Injury Law Round-Up #40

This is an early edition of the Personal Injury Law Round-Up since I’ll be out of the office tomorrow working a volunteer project at a low income school in East Austin (even personal injury lawyers do some good out there).

Perhaps the biggest news of the week, Eric Turkewitz was in a car wreck. He was not hurt, but he writes about the plaintiff lawyer’s experience of a car wreck. Continuing the “plaintiff’s lawyer’s view of the system,” I have been called for jury duty next week (a criminal court so I might get picked) and will try to write on that experience.

Now, onto tort reform…

TrialAdNotes has a post about Benched: the Corporate Takeover of the Judiciary, a DVD about judicial election and tort reform.

With Democrats in control, trial lobby makes headway, at least according to The Hill. Most of the article focuses on preemption issues.

In another New York Times article, Joe Nocera takes on lead paint litigation. Law and More’s Jane Genova was quoted in the article and has her own review. Barry Barnett at Blawgletter offers a rebuttal of the article.

From the TortsProf Blog, the Insurance Journal has an article on Texas tort reform. The article covers an Austin insurance defense lawyer’s speech to an insurance association where the lawyer claims that one downside to tort reform from the insurance company’s perspective is that more insureds are choosing to self-insure. His money quote: “We want a little bit of litigation out there, don’t we? We want a little bit of risk. We need risk or we’re all out of business….We’ll see what happens but tort reform has worked. I just hope for all of our sakes it hasn’t worked too well.” I’m not sure why this is a surprise? When Prop 12, our constitutional amendment on tort reform was being debated, many docs made no secret that one of their goals was to get the limits low enough so that they could self-insure. Stephanie Mencimer has her own summary of the story.

And pseudo tort reform, several lawmakers have filed an amicus brief criticizing the Texas Supreme Court. I wrote extensive about it here. And I have the link to the brief here.

And not really tort reform, but arbitration agreements have been in the news a bit due to Jamie Leigh Jones’ suit against Halliburton. I’ll spare the rhetoric that’s all over the net, but coverage is available at the USPIRG Consumer Blog, Torts Prof, and Overlawyered. I will add that Ted seems to question the plaintiff’s lawyers. Todd Kelly and Paul Waldner are both well-respected attorneys (I think Paul is the president-elect of the Texas Trial Lawyer’s Association, of which I’m proud to be a member).

Speaking of arbitration, the Senate Judiciary Comm is holding hearings on the Arbitration Fairness Act.

And for actual litigation news….

There was a lot of continued coverage on the Riegel v Medtronic case. The Mass Tort Litigation Blog has a link to a webcast of Professor Richard Epstein discussing the case. Epstein’s views will not be welcomed by plaintiff’s attorneys. Kia Franklin has a post on the case at TortDeform. The Drug and Device Law blog also posts on the case and the other two preemption cases in the Supreme Court pipeline. The Legal Intelligencer also has an article on the preemption cases at the 3rd Circuit.

Despite the potential for success at the Supreme Court, it was a bad week for Medtronic. On Tuesday, a federal judge entered a $226 million patent infringement judgment against Medtronic in favor of Johnson and Johnson. At the same time, it was announced that the Feds were investigating payments Medtronic made to docs, hospitals and others to use its devices.

Eli Lilly is now trying to persuade psychiatrists that they can prescribe their meds without incurring liability.

In a car wreck case, the parties reached an $18.3 million settlement the day before closing arguments were scheduled. The defendants reportedly refused a $1 million offer prior to trial. Ouch.

There was also a report of a $6 million settlement in a Big Dig case.

On the products front, LA personal injury lawyer Lowell Steiger has the “case of the exploding wine bottle.”

And on the other coast, a Conn. jury awarded a man $3.4 million for a defective nail gun that forced a nail through the plaintiff’s cheek and into his brain.

Staying on the east coast, the Mass. Supreme Judicial Court held that a doctor who failed to warn a patient about the side effects of medication can be held liable for the man’s car crash that killed a 10 year old boy. Ron Miller has a lengthy discussion of the case, and Bill Childs at Tort Profs has an account of the case. Similarly, the WSJ Law Blog and Health Blog have their own posts on the story.

Michael DeMayo at the North Carolina Injury Blog reports on a suit against Blackwater based on killings in Iraq.

Sticking with med mal, from the Consumerist, surgical objects are accidentally left inside 1500 patients a year. With that many incidents, maybe doctors are setting up a defense that a reasonably prudent doctor leaves a sponge in every now and then. Eric Turkewitz has also posted his views with x-rays.

In trucking news, the Federal Motor Carrier Safety Administration upheld the current 11 hour driving requirement, rejecting requests by safety advocates.

The Houston Chronicle has continuing coverage of the BP trial. Bloomberg also has an article on the trial.

And Bill Marler has a radio interview regarding food poisoning lawsuits.

And now, for the unusual or whimsical or simply useful:

Evan Schaeffer has Depositions: Critical Questions for a Defendant Doctor.

The Consumerist reports that a shopping mall was found not responsible for a wild goose attacking a customer even though the stores employees had been feeding the goose.

A dubious world record — a good samaritan who stopped to help out victims of a car wreck was hit by another car and thrown in the air for a world record 118 feet.

On the fun side, the Trial Ad Notes blog has a link to a YouTube video featuring a video with Lego people singing about hearsay exceptions.

John Day has a useful link to Justia’s new service to search for federal court filings.

And a few weeks ago, we had a scathing opinion from a judge about attorney civility, and now we have a New York judge ordering court supervision of an attorney for his improper conduct.

Blawg Review #138, celebrating human rights day, is up at de novo.

Have a great weekend.

Brooks Schuelke

Brooks Schuelke is an Austin accident and injury lawyer.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Lawmakers Criticize Texas Supreme Court

In what may be unprecedented, a bi-partisan group of Texas lawmakers filed an amicus brief with the Texas Supreme Court asking them to overturn their decision in Entergy v Summers. In that August 31, 2007 opinion, the court was faced with the question of whether a premises owner was a “general contractor” under the worker’s comp provisions of the Labor Code.

The Texas Labor Code provides that if an employer purchases worker’s comp insurance, an employee can’t sue its employer for injuries sustained in an on-the-job accident. In later sections, the statute also provides that if a general contractor purchases worker’s comp insurance that covers the employees of the general’s subcontractors, then the general contractor is considered the employer of the sub’s employees for purposes of worker’s comp laws.  In such a situation, if an employee of a sub is injured in an on-the-job accident, then the employee couldn’t sue the general contractor.  Contrast that to the situation where the sub buys its own insurance for its employees.  In that situation, if a sub’s employee is injured, then the employee can’t sue the sub (his employer) but could sue the general contractor if the general’s conduct contributed to the employee’s injuries.

In Entergy, the plaintiff was an employee of International Maintenance Corp. The company had contracted with Entergy to provide construction and maintenance on Entergy’s premises. In exchange for a reduced contract price, Entergy agreed to purchase worker’s comp coverage for IMC’s employees. The plaintiff was injured and sued Entergy for his damages.

Entergy argued that because it was the entity that purchased the worker’s comp insurance then it should be considered a “general contractor” and receive protection under the worker’s comp statute. The plaintiff, with whom the Court of Appeals agreed, made the logical argument that Entergy couldn’t be a contractor because it was the owner of the property — Entergy couldn’t contract with itself to perform work.   The plaintiff and the Court of Appeals cited existing Texas authority and such mainstream sources as CJS for the proposition that a general contractor is someone that contracts directly with the owner to perform work, not the owner itself.

It took the Texas Supreme Court a mere 13 paragraphs to dismiss the plaintiff’s arguments and his claims. Much of the opinion was based on the Court’s argument that the clear language of the statute demonstrates a clear legislative intent that an owner could be a contractor.

A motion for rehearing was filed, and with that motion, several groups have filed amicus curiae briefs. One of those briefs was a brief filed by four Texas legislators (two Republicans and two Democrats), who argued that it was never the legislature’s intent to allow immunity for landowners. The lawmakers wrote:

This Court, by disregarding the express terms of the Legislature’s enactments, has violated the separation of powers clause of the Texas Constitution and impermissibly encroached on the powers and functions expressly reserved the Legislature…

This Court’s holding in this case improperly extends that immunity to non-employer premises (plant) owners. The Legislature has never authorized such an extension, never intended to provide such an extension, and, in fact, has repeatedly rejected such an extension.

Of interest, one union has pointed out that if the Court’s opinion were in place in 2005, it would have prevented many of the injured workers from pursuing claims following the BP Texas City blast.

It should be interesting to watch how this plays out. I have no real faith that the Court will reverse the opinion, but maybe the amicus signals some hope that this problem will be fixed during the next legislative session.   At a minimum, it’s another group criticizing the Texas Supreme Court for what has become a pattern of results-oriented opinions in the favor of big business and insurance companies.

Fort Worth personal injury lawyer John Cummings also has a post on this subject.

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Texas Cracks Down On Uninsured Drivers

Yesterday’s Dallas Morning News has an article detailing the legislature’s new plan to crack down on uninsured drivers.  The plan, which goes into effect next month, creates a database of uninsured drivers and makes that database available to law enforcement officials and others.  The plan is summarized by the article as follows:

Uninsured drivers will be identified through a state database that will include information from insurance companies on all drivers who have policies on their vehicles. Drivers will be checked when they:

•Are stopped for a traffic violation by a law enforcement officer, who can run their license plate number though the database.

•Are involved in an accident.

•Obtain an annual vehicle inspection.

•Submit payment for a new vehicle registration sticker.

Also, the state plans to mail out warnings to drivers who are found to have no minimum liability insurance.

We hope this law is sucessful.  Uninsured drivers are a huge problem on Texas roadways, with an estimated 20-25% of drivers failing to carry the minimum coverage required by law.  Being hit by an uninsured driver can be devestating to someone in a car wreck.

This story should also be a reminder to purchase substantial amounts of uninsured/underinsured motorist coverage and personal injury protection coverage when you purchase your car insurance.  As our readers know, we’re no friend of the insurance industry, but these two coverages are inexpensive and can make a huge difference in your ability to recover from a wreck.

Brooks Schuelke is an Austin accident lawyer.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Personal Injury Law Round-Up # 39

Welcome to Personal Injury Law Round-Up # 39 (and our third attempt at it). This week’s edition contains pretty big news on the US Supreme Court front, but first we’ll start off with the traditional look at tort reform.

We’ll start off with a bit of good news for those of us on the plaintiffs’ side of the docket. Bloomberg reports that trial lawyers are on the offensive in tort litigation. (Via Walter Olson and Point of Law — and Walter, I hope I got the link correct this time).

Also on the Tort Reform front, the Texas Observer has An Imaginary Crises, a review of Stephanie Mencimer’s book Blocking the Courthouse Door. Consider the book as that perfect holiday gift for all of the litigation lawyers on your list.

Kevin MD has a post on tort reform that “John McCain so gets it.” Not sure where Kevin’s going, but in the blurb cited, McCain mentioned defensive medicine and a loser pays system. Frankly, I think plaintiffs’ attorneys would support a true loser pays system. It’s when the tort reformers propose “defendant wins, plaintiff pays fees; but plaintiff wins, defendant doesn’t pay fees” that we get so upset.

We haven’t posted a lot on this story, but the WSJ law blog has an interview with John Grisham on the Dickie Scruggs saga. For more on the story, you can follow the Overlawyered’s 24/7 coverage of the Scruggs case.

And while we’re talking about plaintiff’s lawyers in trouble, the Mass Tort Litigation Blog reports Louis Robles was sentenced to 15 years for stealing settlement money from clients.

And on to litigation or injury related matters.

The big news of the week, with the potential to radically alter drug and medical device litigation, is the Medtronics case at the US Supreme Court. The transcript is available here. Ron Miller at the Maryland Injury Lawyer Blog has his thoughts, including statements that states’ rights conservatives ought to be against the preemption. Sheila Scheuerman also has her thoughts at the Torts Prof Blog.

In Georgia, a Macon woman receives a $10 million jury verdict in a sponge case. Not surprising, but the hospital plans to appeal.

Eric Turkewitz is among those reporting that the Quaids have sued Baxter over the overdose of their twins. And this time, it really isn’t about the money.

Of interest to plaintiffs’ attorneys, a Pennsylvania court affirmed a $600,000 judgment for a class of attorneys and law firms who were overcharged by a company that copies medical records.

For those of you keeping track, FiercePharma has the top 10 drug warnings and recalls of 2007. (Via Pharmalot.)

Staying on the drug front, the FDA may let drug makers recommend off-label uses.

And wrapping up the drug litigation news, Kevin MD has a post entitled Medical Journals and Trolling For Potential Plaintiffs. Not surprising, when a study is released showing that a drug or medical device is harmful, attorney websites offering to help plaintiffs taking those drugs start popping up.

Speaking of Kevin, MD, he has a post entitled Using the Layman Juror to the Plaintiff Lawyer’s Advantage, where he laments the need for health courts and the fact that plaintiff’s lawyers try to take advantage of the poor, ignorant jurors. I’ve never understood the argument for health courts (other than it being one more attempt to bias the system). Med mal litigation isn’t any more complicated than many other cases. Most serious personal injury cases require very complicated medical causation testimony and evidence, yet doctors don’t argue juries won’t work there. And med mal cases certainly are no more complicated than complex patent infringement cases. As to the plaintiff’s lawyers taking advantage of poor, ignorant jurors, I guess he forgot that most docs get high paid defense counsel with large budgets for expert witnesses to help present the docs’ cases to the juries.

And back to Georgia, where a 100+ physician clinic dropped a patient and her family after the patient filed a medical malpractice case against one of the physicians in the practice. It seems like that might be a breach of a health insurance contract, but maybe not.

And as shocking as it may be, some nursing homes over-medicate their patients.

A new study finds that even minor impacts can cause concussions and head injuries. Will that be useful to the auto litigation bar?

Finally, of interest to amusement park specialists (and fellow University of Texas law grads) Bill Childs and Ed Normund, the Washington Post had a story this week called On Thrill Rides, Safety Is Optional. You can read more of Bill Childs’ thoughts about the proposed regulation and his update on the legislation. (Of course, the proposed oversight is by the CPSC. Regular readers of this blog know what kind of job we think the CPSC is doing with their other responsibilities).

As a bonus this week, a couple of stories detailing how the internet has changed our practices.

First, as a reminder that social networking sites such as Facebook and MySpace are valuable litigation tools, a new story shows that the use of a MySpace page has lead authorities to a Texas fugitive who has been living in Peru.

And in a non-personal injury case, blogs were the basis for a change of venue motion in a Tennessee murder case.

And for the miscellaneous news…..

For trial lawyers looking to sharpen their storytelling skills, we recommend The Writer’s Guild of America YouTube video Why We Fight. The Negotiation Law Blog has a couple of posts (here and here) analyzing the power of the story and the video.

And finally, for the humorous, an online version of a very funny article that I have kept in my desk drawer for over a decade, How Not to Succeed In Law School. (Via Turkewitz, Legal Antics, and Build A Solo Practice.)

Blawg Review #137 is up at Infamy or Praise. Number 138 will be hosted by de novo.

And to end this week, a lawsuit about a turf dispute in the fortunetelling business.

Brooks Schuelke

Brooks Schuelke is an Austin injury lawyer.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Nursing Homes Are Over-Medicating Some Patients

Yesterday’s Wall Street Journal has a heart-breaking story about prescription abuse in U.S. nursing homes. The first three paragraphs of the article say it all

In recent years, Medicaid has spent more money on antipsychotic drugs for Americans than on any other class of pharmaceuticals — including antibiotics, AIDS drugs or medicine to treat high-blood pressure.

One reason: Nursing homes across the U.S. are giving these drugs to elderly patients to quiet symptoms of Alzheimer’s disease and other forms of dementia.

Nearly 30% of the total nursing-home population is receiving antipsychotic drugs, according to the Centers for Medicare & Medicaid Services, known as CMS. In a practice known as “off label” use of prescription drugs, patients can get these powerful medicines whether they are psychotic or not. CMS says nearly 21% of nursing-home patients who don’t have a psychosis diagnosis are on antipsychotic drugs.

The root of this problem is staffing. Unfortunately, my grandmother had Alzheimer’s. We placed her in a wonderful facility with an excellent reputation that provided excellent care. Unfortunately, the person in charge of her facility and several other key aides left, and the quality of care dropped dramatically. We eventually moved her to another facility where she stayed until she passed away. I don’t know if the first facility was over-medicating her, but I’ve always had my suspicions.

And this scenario plays out all across the country. Nursing homes, often relying on Medicare or Medicaid payments that seem too low, are unable or many times unwilling to spend the money to hire good caretakers. And the less skilled workers, instead of doing the hard work to care for the residents, take the easy way out by relying on medication.

Perhaps this story can help change some of those trends.

Thanks to the Roanoke Injuryboard website for their thoughts on the story.

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Wrong Side, Wrong Procedure, Wrong Patient

“If you are having surgery, make sure your doctor marks the proper surgical site clearly — and initials it.” That’s a recommendation from a recent Washington Post article titled HEADED FOR THE HOSPITAL? HERE’S HOW TO PROTECT YOURSELF.

That sounds a little extreme doesn’t it? While the hospitals may screw something up, surely they’ll get the right area, won’t they? Maybe not. The Archives of Surgery, the official medical journal of surgical associations across the country, has a recent report that studies surgeries (1) where the procedure was performed on the wrong-side or site of the body; (2) where the wrong procedures are performed; or (3) where the doctors operate on the wrong patients. There are no formal methods to report these type of surgeries, but the article’s authors surveyed several separate databases and estimated that there are between 1,300 and 2,700 of these events in the US each year. That means that each day, on average, there are 3-7 operations around the country where a doctor operates on the wrong side, performs the wrong procedure, or operates on the wrong patient. Those numbers would be almost unbelievable if they didn’t come from physicians themselves.

So maybe the advice isn’t so radical, and next time you go in the hospital, remember to protect yourself.

For more information on personal injury and medical malpractice claims, check out our firm’s site. Also, thanks to Virginia attorney Ben Glass for pointing us to the study.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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