Things are hopping here as we continue to prepare for a trial so this week’s edition is brief. On tort “reform”....... 

One of the big tort “reform” stories of the week has been Dennis Quaid’s testimony on preemption before Congress. Unfortunately, in our society, causes often need celebrities to act as their champions before there is any traction to search for solutions (eg Lance Armstrong and cancer, Bono and extreme world poverty, and Michael J. Fox on Parkinson’s).  It now appears possible that Dennis Quaid is willing and able to step into that role.  You can watch the video of the testimony or read the transcript.  There are numerous posts on the story, including posts at DC Dicta, the Huffington Post, the Pop Tort, the Maryland Injury Lawyer Blog, and theInjuryboard national desk.   

Along those same lines, Bill Childs reports that the plaintiff in the Six Flags Kentucky Kingdom severed feet case traveled to Washington to testify on amusement park safety. 

And locally, the Texas Supreme Court continues to receive negative press. 

On to the litigation news... 

In Texas, a federal court holds that the rape case against Halliburton isn’t covered by an arbitration agreement (though the plaintiff’s Title VII claims are). 

Staying here in Texas, an appellate court reversed the Garza/Vioxx verdict.  There’s a little more information in Don Cruse’s Supreme Court of Texas Blog, MassTorts, the WSJ law blog and How Appealing.   

Staying in the drug arena, Bayer is pulling all remaining Trasylol.   

In South Dakota, even Congressmen aren’t immune for causing auto accidents.  

On the settlement side, there were more settlements in the Rhode Island nightclub fire. I am most impressed with Eric Turkewitz’s in-depth analysis of the Jet Blue toilet lawsuitand followup.               

And for this week’s miscellaneous posts....     

John Day has What It Takes To Be A Great Trial Lawyer, part 16.              

Thanks for reading and have a good weekend. 

Brooks Schuelke

I don't have time to make a detailed post, but the Washington Post (via the AP) had a great article today about the administration's use of administrative rulemaking authority to preempt lawsuits.  For those interested in civil justice matters, it is certainly worth a read.

I have a prior post that touches on this form of tort reform. 

This is a crazy week. We have been swamped getting ready for two jury settings in June. Thankfully one case settled Wednesday literally an hour before a key deposition so now we have adequate time to prepare for the other case. I think we’re all looking forward to trying it — it is a legal malpractice case and I doubt I will ever have a case with better liability facts than this one. But enough about me. On to the round-up.

I missed this Friday, but a Georgia judge has struck down the state’s medical malpractice caps.

Unfortunately, Tennessee is going the other way. A medical malpractice notice and certificate of merit bill has gone to the Tenn. governor.

Ken Shigley points to an April opinion from a federal judge that, according to Ken, "shells the corn" about preemption.  I had to read the post to figure out what "shells the corn" means.  But then, I had never heard the supposedly key Texan phrase of "all hat and no cattle" until Hillary Clinton told me during the primaries that it was a popular Texas saying.

From me, an Austin doctor talks about the need for medical malpractice protection. Des Moines personal injury lawyer Steve Lombardi also picked up the story.

Texans For Lawsuit Reform has commissioned a study to decry the great benefits of tort "reform." (Also at Point of Law.) The response from the Texas Trial Lawyer’s Association (disclosure — I’m an active member) focuses on the fact that the study’s author won’t disclose his methodology on how he came to these findings. And even some Republicans in the Texas legislature have expressed skepticism about the study. You can read about that from Dallasblog.com.

I’m not sure it’s tort reform related, but John McCain has been talking a lot lately about his choice of judges. I have a hard time remembering when McCain is a right winger and when he’s a moderate "straight talker,"  but I don't think I'll forget where he stands on this issue --- perhaps the most important presidential power for those of us in the legal field. 

North Carolina was in the news a bit this week. Amongst the presidential hype, the North Carolina Medical Board considers transparency by making medical malpractice settlements public. Personally, I think this is a great idea. It is extremely difficult for patients to find out about their potential care givers. While some health insurance companies now provide doctor "rankings," I have to believe that a large portion of those rankings is based on cost of care and not quality of care.

In Arizona, the family of a Border Patrol agent filed a wrongful death suit after his Tahoe rolled over.

Speaking of cars, Toyota is recalling over 90,000 Highlanders.

Moving on to pharma news, the Baxter CEO says Baxter hasn’t had a legal hit on the heparin mess.

When is a $50 million fine/plea bargain not enough? When you don’t tell the victims about the deal. The 5^th US Circuit Court of Appeals rejected the BP plea bargain to pay a $50 million fine stemming from the 2005 Texas City explosion.

And there are more guilty pleas for those interested. In the shipping world, Norwegian Cruise Lines entered a guilty plea following a 2003 explosion at the Port of Miami.

The Washington Injury Attorney Blog has a disturbing post about the danger of movable soccer goals. As a parent of two kids, this was a bit of a concern.

And as the summer approaches, kids are reminded not to chase the ice cream or snow cone trucks.

And to a more grown-up concern, an associate has filed suit against Bingham McCutchen after she was (allegedly*) drugged and raped at a firm holiday party. *You need these types of disclaimers when writing about lawyers.

Virginia Beach personal injury lawyer Rick Shapiro has a post describing an older case, but I thought it deserved a link because it lays out an egregious fact pattern of medical malpractice.

UPDATE: This is the first ever update to my version of the PI round-up, but this is important. Judge Bork settled his $1 million slip and fall case for an undisclosed amount. I can’t say that I’m keeping up with personal injury news if I don’t include news on PI claims brought by from former Supreme Court nominees.

The first post is from January, but I found it on Victoria Pynchon’s blog this week, so I think it technically qualifies. But at the Consensus Building Institute, they describe a mediator’s experience as a juror. I think trial lawyers should read about every jury experience that we can.

I also liked Victoria’s post The Biggest Lie In The Business: It’s Only About Money.

And Eric Turkewitz is not only a superb lawyer, but apparently an athlete extraordinaire.

John Day continues with his great trial lawyer series, but I’m a tad confused by his numbering system. In any event, enjoy "Part 18 What It Takes To Be A Great Trial Lawyer - Part 15."

And finally, I hope none of us ever needs this advice. Though there is this sobering note on the possibility of Texas lawyers going to jail for pleading errors.

Thanks for reading, and have a great weekend.

Brooks Schuelke

Several Texas newspapers ran stories regarding a report from Texas Watch that criticizes the Texas Supreme Court for issuing a growing number of opinions anonymously. The Houston Chronicle’s article on the report notes:

The report by judicial watchdog group Texas Watch shows that 57 percent of the opinions issued in the court's 2006-07 term were anonymous and unsigned. In contrast, 5 percent of the opinions issued by the U.S. Supreme Court were anonymous in a similar time period.

Anonymous opinions, known as per curiam, are typically used for opinions that are not controversial, brief and for relatively obvious legal answers.

"All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters," the group wrote in the report. "By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists."

Justice Wallace Jefferson responded to the allegations by saying they were a mere peculiarity of the docket, but doesn't really give a reason for the rapid rise.  I'm not prepared to say that there's an ill motive from the Court, but I do think it's a trend worth watching.   

I was watching a local news station last night, and they had a story about medical tourism.  There is apparently a quickly growing trend of people visiting foreign countries (primarily India) to have medical procedures performed.  The procedures are suppposedly much cheaper than the same surgeries here in the US.  I really began paying attention when the reporter interviewed a doctor and asked his thoughts about the practice. The doctor said that one benefit of having services performed here was that we had medical malpractice laws to protect patients in case something went wrong.  I was shocked.  A doctor touting the benefits of medical malpractice laws?  You're kidding me, right?  In 2003, when the medical malpractice system came under fire, I don't remember any doctors jumping up to defend the system and the public's rights.   I just remember doctor after doctor talking about how bad the system was and pushing for more limits that have essentially destroyed the system for most victims of medical malpractice.  But I guess it's okay to support the system now when it's a benefit that could help your business.

You can watch the story here.    Hopefully the station will allow us to embed stories in the future.

Last Friday, the Texas Supreme Court issued another opinion where it opted for big business over consumers. The question in Perry Homes v. Cull was whether the Culls’ claim was properly submitted to arbitration. In the case, the Culls filed suit against Perry Homes for defects in their house. Fourteen months later, after completing discovery and on the eve of trial (of which the defendants sought to delay), the Culls asked that the case be submitted to arbitration. The trial court agreed, and the case proceeded in arbitration, where the Culls received a judgment of $800,000.00. Perry Homes then appealed saying that the Culls had waived their right to arbitration, and the majority of the Supreme Court agreed.

While reading the facts on their face makes it appear that the ruling was correct, I don’t think it was. If you compare this case to other decisions where the plaintiffs accused the defendants of delaying before seeking arbitration, you’ll find little difference in the conduct, but a completely different result.

There are two elements that a party must prove to establish that the party seeking arbitration waived its rights to arbitration. First, the party opposing arbitration must prove the party seeking arbitration has substantially invoked the litigation process prior to asking for arbitration. And second, the party opposing arbitration must show that it was prejudiced by the other party’s invoking of litigation.

The issue in this case is whether Perry Homes was prejudiced by the Culls’ actions. When reaching this decision, the majority didn’t point to any specific evidence offered, but seemed to say "Gosh, it’s just inherently unfair to delay so long or to invoke the discovery process and then ask for arbitration." However, the Court has specifically rejected these types of arguments in the past when finding that defendants didn’t waive their rights to arbitration.

In 2006, the Supreme Court handed down the decision of In Re Vesta Insurance Group. In that case, the defendant filed a Motion to Dismiss, sent written discovery, and took 4 depositions. After two years of going through litigation, the defendant then asked that the case be sent to arbitration. The court held that this long delay (longer than the Cull case) and the sending of discovery were not enough to show that the plaintiff was prejudiced by the defendant’s invoking of the litigation process, and the case was sent to arbitration.

The Court has also rejected the idea that the notion of engaging in discovery is enough to show prejudice because many arbitrations allow discovery proceedings. In the 1998 decision of In re Bruce Terminix Co., the Supreme Court said, "Even substantially invoking the arbitration process does not waive a party’s arbitration rights unless the opposing party proves that it suffered prejudice as a result." In rejecting the plaintiff’s argument that it was prejudiced by discovery, the court said that being forced to responded to written discovery "does not establish prejudice because AAA rules allow arbitrators to arrange for ‘production of relevant documents and other information.’"

In 1996, the Court again addressed arbitration in the case of EZ Pawn Corp. v. Macias, and the court found that the plaintiff didn’t prove prejudice despite a year delay by the defendant in invoking arbitration and despite the defendant sending written discovery.

For all the reasons that the Supreme Court found that plaintiffs didn’t prove prejudice in these cases, the Court should have found that Perry Homes didn’t prove prejudice.

However, even more important than the actual substance may be the tone of the opinions. In each opinion where the defendant sought arbitration, the Court engaged in a rigorous analysis to show how the plaintiff’s proffered evidence didn’t support a claim of prejudice. In the Perry decision, there was no such rigorous analysis and the majority seems to assume that the delay and discovery caused prejudice.

Clearly, I think that if the Court had applied the standards and analysis set out in their prior opinions, they would have held that the trial court properly sent the case to arbitration.

I will also give credit where it is due. I have often expressed my displeasure with several members of the court, but Justices Johnson, Jefferson, Green and Willet all dissented, finding that Perry Homes didn’t fulfill its burden to show prejudice.

Now, I will add that the most interesting or sensationalist part of the case involves the actual parties. Bob Perry of Perry Homes is one of the biggest contributors to the Republican party, both in Texas and nationwide. All nine judges on the court have each received contributions totaling more than $260,000 from Perry’s family. Perry is also a major donor to Texans for Lawsuit Reform, which has given an additional $185,000 to the justices. Several of the posts below touch on that relationship.

This case has received a lot of publicity, and you can find more discussion at the sources below:

• Austin American Statesman
• Houston Chronicle
• Fort Worth Star Telegram
• Dallas Morning News
• The Jefferson Court Blog
• Texas Blue
• Paul Burka’s Texas Monthly Blog
• Todd Smith’s Appellate Law Blog

I’m going a little out of format today, but I’d like to start by congratulating my firm. Today, our local volunteer legal services organization is awarding us the Judge Joe Hart Award. According to them the award is "presented annually to a law firm that has demonstrated the integrity and dedication to legal services to the poor exemplified by Mr. Hart throughout his legal and judicial career." I hope that we continued to be blessed with the time and resources to continue our VLS work.

Sorry to get off track. Now, over to tort reform issues.......

One of the bigger stories of the week was Obama’s position on tort reform. In a Fox interview, Obama cited his vote on CAFA as an example of him being willing to cross party lines. You can check out posts from Bill Childs, Point of Law, and f/k/a. Obama’s attacked from the left for supporting CAFA and attacked by POL for not supporting enough tort reform. But isn’t that what we should be asking our legislators to do? As they say, a good mediation result is when both sides leave unhappy. Shouldn’t that be the same for legislation? (Disclosure: I was an Obama delegate to our local county convention in what might be the most convoluted voting process in the country.)

Chris Robinette is apparently publishing a book that will be available next month on balanced tort reform. He’s starting a preview on the tortsprof blog.

Overlawyered and Maryland Lawyer Blog both have good posts on the story of a pitcher filing suit after his coach let him throw 140 pitches in a game. Ron Miller has some nice analysis on tort reform issues, but you might be surprised by his take.

In the "lawyers behaving badly" category, a Florida case on behalf of 441 medical providers against Progressive ends up with a massive fee dispute and an ethics report to the Florida bar.

In the same vein, three Kentucky Fen Phen lawyers are being prosecuted for bilking 440 clients out of settlement funds, and, in a bizarre twist, the criminal defense lawyer for one of the lawyers recently admitted to the Ky federal court handling the case that he himself had been suspended from practicing in a Tennessee federal court after being found in contempt of court. I don’t think we could make this kind of stuff up.

In the "wives of Texas Supreme Court justices behaving badly" category, the wife of Texas Supreme Court justice David Medina was indicted a second time for charges connected to their house fire. You may recall that there was outrage earlier this year from the sitting grand jury when the Harris County, Texas DA dismissed a previous indictment against the judge and his wife. I have several posts about it on this blog, but I’m too lazy to cross-post to those. If you’re interested, use the search function.

In New York, an appellate court upheld the jury finding against the Port Authority of New York and New Jersey stemming from the 1993 World Trade Center bombing. There are comments all around the blogosphere, including Turkewitz , MassTorts, Overlawyered, and How Appealing.Ted Frank was busy on this — also posting at Point of Law and writing an op-ed piece in the NY Sun.

In pharma litigation, Rep John Dingell figured out that "citizens can no longer trust" the FDA. No kidding? Who would have thunk it? When the FDA chief counsel is interfering in the heparin probe, I think we’d agree there’s a problem. Of course, personal injury lawyers have always known that the FDA and preemption was a joke.

Speaking of heparin, it appears the heparin contamination was intentional.

Another big story in this week was the concern over Lasik surgery. Last Friday, the FDA urged additional warnings for Lasik patients. This has been addressed by Milwaukee personal injury lawyer Paul Jacquart and NPR, among others.

In California, a hospital settled a medication error suit for $5.1 million.

In a little divergence, NPR has a series of stories about improper care in Army hospitals. Yesterday, they started with a story on a rash of accidental overdoses at Army hospitals. And today, they report that even after the uproar last year, the Army hospitals have a long way to go to provide quality care.

And hot off the presses, the state of Minnesota has agreed to settle cases from the horrible bridge collapse.

Turkewitz laments once again that personal injury blogs aren’t getting any respect.

John Day continues his series with What it Takes to Be A Great Trial Lawyer - Part 14.

And this is way off topic, but in Dallas County, Texas an 18th innocent man was cleared by DNA testing. An amazing number for one county.

Thanks again for reading. Have a great weekend.

Brooks Schuelke

I had a hearing this morning, and before it was our turn, I had to wait and listen to another hearing.  In that hearing, the attorney for the state of Texas (a friend of mine) filed a motion for summary judgment.  The defendant, an individual who was representing himself, filed a response with evidence, but failed to show up at the hearing.   Instead of taking advantage of the absent individual, the attorney laid out the arguments put forth by the individual, construed the arguments in a way most favorable to the individual, and essentially told the court that his motion should be denied.

It was refreshing to see that kind of honesty and candor, which all of us should exhibit, in a courtroom.  At a time when you just hear the negative stories about attorneys and trial lawyers, I wanted to share that there are still good and decent lawyers out there.

I'd like to name him, but I won't because I don't yet have permission to do so.

In August of 2007, the Texas Supreme Court handed down the decision of Entergy Gulf States, Inc. v. Summers.  In a simplification, the opinion allowed property owners to buy their way out of lawsuits brought by any employees of contractors or subcontractors working on the company's premises by purchasing worker's compensation insurance that covers the employees of the contractors or subcontractors.  After the opinion was handed down, in what may be an unprecedented action, four state legislators (two Republicans and two Democrats) filed an amicus brief asking the Court to reverse the decision on rehearing.  I wrote detailed posts in December when the amicus was filed that described the opinion and had a copy of the brief.  The posts are available here and here. 

The motion for rehearing was granted earlier this month, but legislators are still keeping the pressure on the Court.  Today's issue of the Austin American Statesman has a great article from Kate Alexander that describe hearings this week by both the Texas House and the Texas Senate that are focused on the decision.  The article has the following excerpt that hopefully reflects the sentiment of both chambers:

Rep. Helen Giddings, a Dallas Democrat and chairwoman of the House Business and Industry Committee, said the Legislature has a long history of rejecting the expanded liability protection that should have guided the court's decision.

"It is about legislative intent," Giddings said. "It is about respecting the Legislature and allowing the Legislature to do its job as, obviously, we must allow for the judicial branch to do its job."

And from Senator Jeff Wentworth:  If the Supreme Court doesn't correct its decision, the Legislature will have the opportunity to make it crystal clear.

This issue is extremely important to workers throughout the state, and we'll try to keep regular news posted about it.

Some others who have written on this are as follows:

• Off the Kuff
• Alex Winslow on The Texas Blue
• David White's Law and Insurance Blog (also here)

We have a lot going on today, so we’ll get right to it.

On Wednesday, the U.S. Chamber of Commerce’s Institute for Legal Reform released their survey, "Lawsuit Climate 2008: Ranking the States." AAJ had their press release on Tuesday. There are all kinds of blogs linking to the "study" and the response, but surprisingly few have any real analysis of either. I have two quick points. (1) Clearly there are questions about the methodology (simple interviews of corporate counsel at companies with over $100 million in revenue), but I think the study also shows that those interviewed are out of touch with the realities of litigation. When asked to name the number one thing needed to improve the litigation environment, the most cited item was "speeding up the trial process." I won’t speak on behalf of any of my other plaintiff brethren, but in my almost 15 years of doing this, I cannot remember any corporate defendant doing anything to help speed up the trial process. Indeed, the opposite is usually true. The large defendants, I find, are more likely to engage in more useless discovery fights, file more frivolous motions, and then attempt to continue the trial once we get a trial setting. (2) One admission in the study is startling. The executive summary states:

as we have noted in the past, perception does become linked with reality. If the states can change the way litigators and others perceive their liability systems, we may find considerable movement in their rankings in the future. Once these perceptions change, the overall business environment may be deemed more hospitable as well.

It’s just another example that the Chamber has learned the lessons of the Iraq war: If you repeat the lie enough, then eventually people will believe it.

Also a tort reform issue, Eric Turkewitz notes that New York medical grads are staying in New York and that few are leaving because of malpractice concerns.

On med mal, Kevin MD had an op-ed piece in USA Today on defensive medicine.

And similarly, the Happy Hospitalist goes off on the Feres doctrine.

And Kia Franklin at Tort Deform has a nice roundup of some arbitration articles.

A New York jury poured out the construction worker who filed an assault and battery suit after the hospital performed a rectal exam without his agreement. There are a lot of potential improper comments possible with this post, but I’ll just leave those alone.

But in New Jersey, a jury awarded $10.2 million in an Accutane case.

Atlanta personal injury lawyer Ken Shigley reports that the Federal Motor Carrier Safety Administration is recommending sleep apnea testing for some truck drivers.

It is apparently not a good time to be eating at Chipotle restaurants. In Kent, Ohio, more than 400 people (including many Kent State students) became ill after eating at their local Chipotle. And in San Diego, at least 12 people contract Hepatitis A from their local Chipotle.

In Chicago, Benny the Bull and the Chicago Bulls were sued after a high-five ruptured an oral surgeon’s bicep.

From Pharmalot, drug companies are falling behind in their promises for post-marketing studies.

Virginia personal injury lawyer (and all around good guy) Mike Phelan points to a study showing a link between traumatic brain injuries and increased risk of dementia. It’s good to finally have some literature that we can rely on in making these assertions.

John Day continues his series with How to Be A Great Trial Lawyer, part 13.

And the always top-notch Anne Reed has a very disturbing post entitled Lawyers: So Certain, So Wrong.

Earth Day 2008, Law Firms Going Green

Gas Saving Tips from the Los Angeles personal injury blog.

Happy Earth Day (with tips) from TortsProf.

And Overlawyered has a link to an old Onion story entitled "Earth To Be Made Child-Safe."

Thanks again for reading. I hope all of you have a better weekend than Wesley Snipes.

Brooks Schuelke