Personal Injury Law Round-Up #51

I’m not a math genius, but I am smart enough to figure out that next week will be Personal Injury Law Round-Up #52, which probably means the one year anniversary of the Personal Injury Law Round-Up. I wanted to thank and congratulate Eric Turkewitz for starting the round-up. In his honor, I’ll learn how to insert one of his cute round-up graphics so week 52 gets the appropriate flair it deserves.

And now, on to tort reform issues…

The Riegel case continues to be a big story in the blogosphere. Tony Sebok looks at what Riegel signals for future preemption cases. (Via TortsProf). Professor Richard Nagareda of Vanderbilt has his thoughts on the decision. (Via Mass Torts). Law and More looks at what Riegel leaves unanswered. And the SCOTUS Blog has their reviews. And, of course, the Drug and Device Law Blog has their continued coverage.

I’m not sure this is litigation news or tort reform news, but the other big story of the week was the Exxon Valdez punitive damage case at the US Supreme Court. SCOTUSBlog has a complete run down of the argument and issues. The WSJ Law Blog also chimes in (and their post quotes Michael Sturley, a professor at my own University of Texas school of law —- Hook ‘em). And Blawgletter has the different perspective of how punitive damages are relevant to contingent fee lawyers. For a complete round-up of articles and posts, check out How Appealing.

Here in Texas, several plaintiffs, including former Dallas Cowboy Ron Springs, have filed suit to challenge the constitutionality of Texas’s medical malpractice caps. And I wanted to provide this second link to the story from Pravda online, because really, how many times are we going to have the chance to link to Pravda. (I’m sure the “tort reform” supporters will have some witty comment about this story appearing in Pravda, but I’ll leave that to them.)

Speaking of caps, the Oregon Supreme Court has upheld its cap on wrongful death damages.

And staying in Texas, Austin appellate attorney Todd Smith highlights a story about the Texas Supreme Court entitled “Justice Delayed.”

Overlawyered has another story of plaintiff’s lawyers gone bad.

And to be fair, has the story of defense lawyers gone bad as a Mass US Dist Court judge fined Medtronic $10 million for behavior of its trial lawyers during litigation. The Court noted that “The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit.” Just another story to go in the frivolous defenses file.

And finally, for all those advocating that we should follow the English system, note that an English court has allowed an addicted gambler to sue his bookmaker for personal injuries.

And on to litigation news…

Bill Childs reports on an Alaskan village that is suing various energy companies for global warming. The village has had to relocate due to flooding.

A Kuwaiti contractor is fighting the $4.9 million judgment entered against it on jurisdictional grounds. These line of cases have the potential to really change the law on jurisdiction.

A lawsuit by West Virginia smokers will proceed against tobacco companies.

A California jury rejected a $21 million suit filed by a US District Judge following an escalator accident. This story is really only noteworthy because you don’t get many suits with US District Judges as plaintiffs.

Staying in California, the California Injury Blog reports on a patient who burned to death in a nursing home.

Just a few miles down the road from us, San Antonio, Texas personal injury lawyer Beth Janicek reports on a study that finds staffing effects survival rates.

Eric Turkewitz asks whether the lady who passed away during flight would have a claim.

In Philadelphia, a jury awarded a woman $12 million in a failure to diagnose breast cancer case.  The story doesn’t have the breakdown of what the damages were for, but I’m guessing the result would have been very different in Texas.

And on to the miscellaneous news…

Another lawsuit over BAR/BRI prices.

Blawg Review #148 is at Blawg IT.

And that’s it. Thanks again for reading this week.

Brooks Schuelke

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

Texas Supreme Court: Justice Delayed

Texas Watch, a bi-partisan advocacy group working to improve consumer and insurance laws for Texas families, has issued a new report about the increasing backlog of cases at the Texas Supreme Court.  The report, entitled Snail’s Pace: An Analysis of the Texas Supreme Court’s Growing Backlog, made the following findings:

  • The Court took an average of 852 days (2.3 years) to dispose of a case in the 2006-2007 term, an increase of 24% from the 2004-2005 term.
  • Justices took an average 416 days to write an opinion after the Court has heard oral arguments. This represents a 31% increase from 04-05 to 06-07.
  • Justices Wainwright and Johnson have fallen behind their colleagues’ output by routinely taking longer to write fewer opinions.
  • The Court’s backlog has steadily increased from 14 in fiscal year 2000 to 60 in FY2007, an increase of 328%.
  • The Court has left 72 cases pending for more than a year. An additional 31 cases have been pending for more than 2 years.
  • Dallas news station WFAA ran their own story based on the report.

    Thanks to Todd Smith for his link to the WFAA story.

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

Legal Malpractice In The Criminal Context

To win a legal malpractice claim, a plaintiff must prove that the attorney’s negligence was a proximate cause of the plaintiff’s injuries. For over 15 years, it has been the law in Texas that legal malpractice plaintiffs who have been convicted of a criminal offense cannot establish the proximate cause element unless the plaintiff is later exonerated on direct appeal, through post-conviction relief, or through other measures.

The rule was the subject of Martinez v. Alvarenga, a decision handed down by the San Antonio Court of Appeals last week. In that case, the plaintiff plead nolo contendere to a charge of arson, and then sued his lawyer for malpractice. The plaintiff tried to distinguish his claim from the long-standing proximate cause rule by arguing that he did not plead guilty. The San Antonio court said, “no dice.” As long as the criminal defendant is found guilty in some sense, then the rule applies.

This rule explains why it is almost impossible to bring a legal malpractice claim based upon an underlying criminal charge. Generally, if the representation results in a “not guilty” finding, then the plaintiff is not damaged no matter how poorly the attorney performed. On the other hand, if there is a “guilty” finding, then the rule prevents the plaintiff from bringing suit unless he’s later exonerated (a rare occurrence, particularly here in Texas).

Posted on: February 24, 2008 | Tagged

Personal Injury Law Round-Up #50

It is a great time to be in Austin. We have the Democratic primary, last night’s debate, and local appearances by the candidates. We don’t often get to participate in the process this late in the game, and certainly the Democratic party hasn’t had this much input or excitement in a long time. Add in our University of Texas basketball team being ranked in the top 10, UT baseball starting the season today, and UT spring football practice starting today, it’s also great on the sports front. And the blue skies and 70 degree temperatures don’t hurt anything.

For those of you living outside Austin, the big news this week was the decision in Riegel v Medtronic. The blogs that have written on the decision include:

Now, for other tort “reform” news…….

From TortsProf, Oregon and Colorado are considering increases of their damage caps. It’s nice to see some relief for our brethren in the plaintiff’s bar.

Overlawyered looks at medical malpractice in the upper midwest. They link to articles wondering why the upper midwest has the lowest med mal insurance rates in the country (and they admit that tort reform laws don’t explain the low rates).

Here’s a novel idea: the CPSC is asking toy makers to eliminate lead in toys. Those CPSC guys are always on the cutting edge.

Kia Franklin at TortDeform has a great post noting that in tort reform the real debate is juror rights.

On to the litigation front…..

Perhaps the biggest story of the week was the massive beef recall initiated last weekend. Bill Marler has posts on the recall here, here and here.

For those of us that deal with subrogation issues, the California PI and Insurance Blog has a story about an investigation of Ingenix.

In Nevada, a judge reduced a $134 million verdict against Wyeth.

Ben Glass, looking at the notion that the medical profession doesn’t police its own well, has Why Malpractice Cases Are Important?

From Orlando personal injury lawyer Ed Normund, the OJ Simpson civil judgment was renewed, and the collection effort goes on.

The Brain Damage Blog highlights the dangers of carbon monoxide poisoning.

And on to the miscellaneous news…

Torts Prof also notes that a class action was filed against the New England Patriots realting to their spying tactics. This isn’t really a personal injury post, but we don’t often have the chance to link to sports stories.

Victoria Pynchon has a nice series on How to Make Your Opponent Do What You Want Him to Do. Part 2. Part 3. Part 4.

Blawg Review #174 is up at Rush on Business. I’m personally pleased that the review has a biking theme and highlights Austinite Lance Armstrong.

That’s it for this week.  Thanks for reading, and have a great weekend.

Brooks Schuelke

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

Austin Trucking Accident Dangers

Austin news station KXAN ran a story last night about truck drivers “dodging the scales” to avoid weigh stations and inspections. Texas has several permanent weigh stations operated by the Department of Public Safety. Unfortunately, truckers are becoming resourceful about ways to get around the inspection stations.

The thing that really struck me in the interview was the lip service given to safety. The president of the Texas Motor Transportation Association was quoted as saying that they don’t condone the practice of avoiding inspections, yet they have fought legislation that would have made the practice illegal. Along the same lines, the reporter had a statement from a spokesman of a company that provides information about getting around the stations. The spokesman said that they do not advocate unsafe drivers and don’t advise truckers to avoid weigh stations. However, he went on to add:

We provide accurate information about the legality of certain routes and about rules, regulations and enforcement procedures that vary from state to state.

There is a lot of information out there about the DOT, but it’s not easy for drivers to find it. We operate a Web site that answers the questions truckers are asking about truck scales, weigh stations, and DOT rules and regulations.

The Rand McNally Motor Carriers’ Road Atlas is by far the most widely used map among truckers. But weigh station locations are often incorrect, missing or unclear on the atlas. We document the location of the actual weigh stations, including the exit before, exit after and exact mile marker. This is all public information. We just gather it.

Maps and mapping software also lack other information truckers want. A trucker can use mapping software to attempt to go around weigh stations and encounter unexpected low bridges, weight limits, truck restrictions, and roadways that are unsafe for trucks to travel. We warn truckers that if they are thinking about taking a certain route, they’d better think twice.

In other cases, we provide acceptable and legal routes to take.

This is particularly concerning to those of us in Austin and Central Texas. Being as close to border as we are, Interstate 35 is a major trucking and NAFTA corridor. One example of the problem with aggressive truck driving can be seen in this YouTube video called I35 Truck Races.

Related posts:

    • 18 Wheeled Dangers
    • Sweatshop on Wheels
    • Truckers Admitting Rules Violations
    • New Threat to Austin – More Trucking Accidents

You may find a little more information on our Austin Trucking Accident Lawyer page.

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

Florida stops Allstate from writing new auto policies

This is not really personal injury news, but the Florida insurance commissioner issued a ruling this morning that Allstate was not allowed to write any more auto policies in Florida.  The action comes after Allstate chose not to produce subpoened records and instead wrote a 51 page letter from one of its attorneys with an objection to the document request.

I post this becaue this is a prime example of the new, combative tactics taken by insurance companies today.  Instead of working together to find a just resolution to issues, many insurance companies and adjusters seem to see their job as to delay as much as possible and to do what they can to obstruct a just result.

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 #49

I’ve had a chance to catch my breath, and we have some very interesting links this week.

First, to the tort “reform” news…

I’ll start with the best post of the week, Eric Turkewitz’s How to Fool A Jury (Is It Insurance Fraud?). If you don’t click on any more of the links, click on that story. Those of us the trial bar have heard for too long about frivolous lawsuits, but the press rarely reports on frivolous defenses. The costs of litigation would go down remarkably if insurance companies or defense lawyers wouldn’t insist on asserting defenses (or here, simply manipulating evidence) that have no chance of prevailing. I recently had to defend a summary judgment that had no chance of success. The defense lawyer’s motion and evidence were probably 4-6 inches thick. After we prevailed, the lawyer said, “well, I had to try.” No. You didn’t. It was a complete waste of his client’s money, the court’s time, and my time. Alright, off my soapbox. On to the rest of the stories.

There are also some new tort “reform” sites out there. First, the Institute for Legal Reform has created I Am Lawsuit, which predictably contains a feature story on our friends the Chungs (via Mass Torts). And on the other end of the spectrum, the Center for Justice and Democracy has created The Pop (via the New York Personal Injury Law blog).

On the frivolous suit front, Walter Olson at Overlawyered reports on a woman seeking $54 million from Best Buy for a lost laptop. Surprisingly, I agree with Ted’s comment that “it’s discouraging to see people learning that bringing a frivolous claim will create publicity, and the media playing along.”

Speaking of Ted, he has a post on Bush’s nomination of ATLA member Richard Honaker for a spot on the federal bench.

Overlawyered also has an interesting post about a medical malpractice reform article co-authored by Hillary Clinton and Barack Obama.

I’m not sure it’s tort reform news, but Ed Poll at the Law Biz Blog has a post on Mass, Conn. and RI requiring insurance companies to send out notices of settlements to consumers to help reduce the number of cases where attorneys commit fraud on their clients. It’s really sad that it’s come to this.

The Philadelphia Inquirer reports that doctors are increasingly turning to binding arbitration. Chris Robinette posted on the article, and I shared my thoughts also.

In Georgia,a driver’s cell phone use is a big factor in a $5.2 million car wreck verdict.

And on to the litigation related news…

The California Court of Appeals reversed a $28 billion punitive damages award under Williams.

A Conn. jury awarded $38.5 million in a cerebral palsy medical malpractice suit.

Mass Torts reports that Clear Channel has chipped in its share to settle the Rhode Island nightclub fire litigation.

The John Ritter medical malpractice trial continues. And Chris Robinette’s update may be TortsProfs’ first link to E!Online. And the click through article has the well thought out legal analysis that you’d expect from E!Online.

Dallas Personal Injury Lawyer Jeff Rasansky reports on a recall of Icy Hot. That’s not good news for those of us that are getting older, but still think we’re young enough to be weekend warriors.

The Centers for Medicare and Medicaid Services released the list of the worst nursing homes in the country.

Bill Childs reports on another Sizzler (the ride, not the restaurant) lawsuit. Sadly, that’s my daughter’s favorite ride.

Turkewitz’s New York Personal Injury Law Blog has a great story about State Farm being sued for Civil Rico violations over sham medical exams.

And Los Angeles personal injury lawyer Lowell Steiger has a link to a crazy site where you can be a virtual surgeon. It’s both weird and pretty cool, all at the same time.

And on to the miscellaneous…

Evan Schaeffer has Powerpoint Examples From A Trial Tech, which links to a good site with those interested in presentation ideas.

Kevin MD links to a story of an expert witness who lost his medical license for exaggerating his credentials on the stand.

John Day has What It Takes To Be A Great Trial Lawyer, Part 8.

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

Fight Over Constitutionality of Medical Malpractice Limits

Tort reform lobbying groups took an unusual step this week by filing a declaratory action suit here in Austin trying to establish that the 2003 medical malpractice caps on liability are constitutional.  The suit stems from a lawsuit against Corpus Christi doctor John McKeever.  In that suit, patient Adrian Cerny sued Dr. McKeever after Cerny developed a serious infection following surgery.  As part of the suit, Cerny alleged in his pleading that the Chapter 74 caps on medical malpractice damages violated various provisions of the Texas constitution.  Instead of litigating the constitutionality in the Corpus court, Dr. McKeever, tort reform lobbyist group Texas Alliance for Patient Access, the Texas Medical Association,  and the Texas Hospital Association filed suit against Cerny in Travis County asking the Travis County courts to declare that the caps are constitutional.

This is a highly unusual move that I think will ultimately be unsuccessful. Dr. McKeever and the lobby groups filed their suit based on a provision in the act that said the constitutionality of the statute “may” be addressed in Travis County.  The provision is not mandatory.  It is the general rule in Texas that when two suits are filed litigating the same issue, the first suit usually controls, and the second suit must be abated  (there are, of course, exceptions, but none that I think would apply here).  Because it is not mandatory that the constitutionality be challenged in Travis County, I think it is likely that Cerny will file a plea in abatement arguing that the constitutionality is already being litigated in the Corpus suit.  The plea should be granted, and the litigation over the constitutionality should continue in Corpus.

The real question is why use the Cerny case as a test case?  Mike Hull, the lobby groups’ attorney, says that he chose this suit because Cerny’s lawsuit “has the broadest number of challenges to the Constitution.”  But that’s not really true.  The pleading by Cerny is not much different than most challenges.  In fact, it may be more limited.  Probably the best challenges to the statute are based on arguments that the statute violates the US constitution.  Cerny doesn’t object to the caps on any federal constitutional basis.  Perhaps we’ll see in the coming months the real reason that the lobby groups chose this case.

It will be interesting to see how this turns out.  Regardless, we won’t have a dispositive answer until the federal courts chime in.

Travis Poling of the San Antonio Express News has an article on the case (and it quotes me).

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

Justice Medina’s Saga Continues

As we’ve previously written, Republican Supreme Court Justice Medina and his wife were indicted last month by a Harris County grand jury for conduct relating to a fire at their home. Shortly thereafter, the Republican district attorney had the indictments dismissed.

Now the case takes another twist. Six members of the grand jury have sued so they can speak out about the evidence in the case. The jurors contend that the district attorney and other lawyers in his office have waived any privileges of secrecy by continually talking about the case.

I don’t know where this will go, but it’s obviously not going away any time soon.

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

Closing Arguments Heat Up In Legal Malpractice Trial

In Philadelphia, mega-law firm Duane Morris has found itself as the defendant in a legal malpractice case.  In the case, the plaintiff has alleged that Duane Morris negotiated a settlement agreement on the plaintiff’s behalf, but failed to make sure that the payments were secured.  According to the plaintiff, he received approximately $200,000 of a $1.8 million settlement, and most, if not all, of that $200,000went to pay the esccalating Duane Morris legal fees.

The trial of the case began on February 4, and yesterday the case went to the jury.  According to many, sparks were flying during the closing arguments.  We’ll try and keep you posted on the results.

Posted on: February 13, 2008 | Tagged

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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