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

Personal Injury Law Round-Up #48

This is an abbreviated version of the personal injury law round-up. Six days of depositions in the last week and a half plus planning for my youngest’s 5th birthday party tomorrow have overwhelmed me a bit.

The big tort “reform” issue this week has been contingency fees…

Contingency fees are always a hot topic, but with the release of a new study from two professors at the Hebrew University of Jerusalem, contingent fees have been all over the blogosphere. You can find more on the study at Point of Law, TortsProf, MassTorts, San Diego Injury Lawyer Blog, Blawgletter, Drug & Device Law Blog, Maryland Injury Law Blog, and us.

And now on to the litigation news…

It’s been a big couple of weeks for jury trials. First, there were some big awards out there recently. A Baltimore jury handed down a $15.3 million verdict in an asbestosis case. (Via Charlottesville Va Personal Injury Lawyer Bryan Slaughter)

And then, a jury in the metropolis of Cotulla, Texas (population 3,628) handed down a $6.5 million verdict in a Ford rollover case.

And throw in a $30 million settlement from the TV station involved in the Rhode Island club fire.

And we also had a couple of celebrity trials. In Florida, Hall of Fame pitcher Jim Palmer won a medical malpractice case.

And, having received much publicity, the medical malpractice trial stemming from the death of John Ritter started this week. You can see some docs’ views on this suit at Movin’ Meat, Kevin MD, Dr RW, and Dr. Wes. Eric Turkewitz also has his thoughts on the case.

The California Injury Blog has the Big Rig Accident Round-Up, highlighting some of the big trucking accidents around the country.

On the consumer products front, Mass Torts writes on a Public Citizen report that the CPSC delays its warnings.

The CPSC is also issuing a recall of red wagons. (This story is in part notable because it reminds me of my friend Sara Hickman’s song “Red Wagon”.)

The DC Metro Area Personal Injury Law Blog also reminds us that this is National Burn Awareness Week. For those of you out there that have represented burn victims, it might be a good time to remember them. I have found there are few more painful injuries from my clients than significant burn injuries.

The ever-disturbing Marler Blog reports that E. Coli is Busier Than Ever. Speaking of Bill, he was the subject of a Seattle TV station story.

And MassTorts has a great post in What’s Left of Merck? The post discusses, in part, what appears to be compensation to physicians who helped Merck push their products. The amazing thing to me is that, even with all the bad publicity for the pharma industry, we still see many experts put their associations with pharmaceutical companies on their CVs. I think that’s an association that we can use.

And on to the miscellaneous…

Anne Reed teaches us how to use the elections as a national jury seminar.

John Day has What It Takes To Be A Great Trial Lawyer, Part 7.

Blawg Review 145 is up at What About Clients, with an appropriate super bowl theme.

Thanks once again 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

Personal Injury Law Round-Up Number 38

Personal Injury Law Roundup Number 38

Thanks for coming back to this week’s personal injury round-up after the short Thanksgiving week. Since it was a busy week, we’ll hop right into it.

Keeping with Eric’s form, we’ll start off with tort reform.

We’ll start with a trio of Texas stories. First, the Dallas Morning News had an article featuring criticism of the Texas Supreme Court, where big business and insurance companies win over 87% of their cases.

Moving on to Houston, a columnist in the Houston Chronicle once again debunks the Stella Awards.

And for the final swing through the Lone Star State, the Boston Globe has a look at the effect of Texas medical malpractice caps. The story looks at a claimant unable to find an attorney following his father’s death and at an anesthesiologist who moved from Maine to San Antonio (a town that already had approx. 200 anesthesiologists) who says the caps were a factor in his move.

Staying with Southern damage caps in med mal cases, the South Florida Lawyers Blog has a post on whether Florida med mal caps have significantly helped decrease premiums for Florida docs.

Moving up the coast, Barry Boughton of Public Citizen writes that New York’s rising medical malpractice rates are not the result of some “medical malpractice crises,” but result from insurers’ own errors.

Also, by now, everyone knows that Mitt Romney has been calling for nationwide damage caps in med mal cases.

The Law and More blog wonders whether Dan Rather’s lawsuit against CBS will be the next poster child for tort reform. And Justinian Lane responds at CorpReform.

Moving to arbitration, Walter Olson at Overlawyered has thoughts on ADR and pre-dispute arbitration contracts. He highlights a letter to the editor in the Wall Street Journal. The letter claims that attorneys are against ADR because avoiding costly litigation means some lawyer is losing money. This is, of course, wrong. As plaintiff’s attorneys working on contingent fees, we want to settle cases early if defendants offer fair settlements, and we support any ADR measure that facilitates that. What we are against is giving up our right to a jury trial via arbitration agreements for the cases where the defendants are unwilling to make fair offers.

On a related note, Stephanie Mencimer has a new article up at Mother Jones magazine looking at mandatory arbitration agreements. And she had this lengthy blog post following it up where she details the story of an arbitrator who appears to be unwilling to abate an arbitration until one of the party returns for serving in Iraq.

And finally, it’s not really tort reform related, but former AG John Ashcroft’s consulting firm gets $52 million to monitor an implant case. (The irony of US Attorney Christopher Christie referring $52 million of work to his old boss in an underlying case involving kick backs and other unethical conduct is evident.) The fee includes a flat fee of $750,000, professional services billed at a rate of up to $895 an hour, and as much as $250,000 a month for expenses. Having been a part of several class action suits, I can’t imagine what kind of first class monitoring $52 million buys you.  Anyway, keep this story in mind the next time you hear people complain about attorneys’ fees in mass tort or class action litigation.

And on to litigation:

The trial stemming from the massive blast at the Texas City British Petroleum plant started this week. One novel issue to watch is whether the plaintiffs can prove BP fraudulently obtained air-quality permits prior to the blast. Such a finding would nullify the state’s caps on exemplary damages. The Houston Chronicle also has a short story on the first day of voir dire.

Texas billionaire Sam Wyly is suing Milberg Weiss and other firms for allegedly dropping some claims and settling others too cheaply in a 2003 settlement of a class action against Computer Associates. (Via the WSJ Law Blog.)

Speaking of class actions, Ford has agreed to settle several rollover class action claims.

Eric Turkewitz at the New York Personal Injury Law Blog posts on the widely publicized Heparin overdose of the Quaid twins. He has a great summary of the story. It also goes to show how some of these tort stories hit close to home. The Quaids are sometimes Austin residents, and the twins’ uncle is a local attorney I consider a friend (we met serving on the same non-profit board several years ago). Our thoughts and prayers are certainly with them in this tragic time.

Almost every major newspaper in the country picked up a story of a Rhode Island hospital that had its third instance this year of a doctor performing brain surgery on the wrong side of the patient’s head. Simply unbelievable. Also check out the Brain Injury News and Information Blog for their report of the story.

The FDA will recommend new warnings for flu drugs Tamiflu and Relenza. There are several sources for this, but the big cite goes to the Consumerist for the title of its story: TAMIFLU AND RELENZA TREAT FLU, BUT MIGHT MAKE YOU CRAZY. The Maryland Accident Law Blog and the DC Med Mal Blog were also on top of the story.

Relating to inappropriate prescriptions, a big story of the week was How Drug Industry Money Affected A Psychiatrist’s Judgment. Kevin MD and Pharmalot also has their views on the story.

And also Kevin MD notes that the standard of care changing every few years is a problem with governmental regulation because the regulation is too slow to keep up.  Perhaps another argument for med mal cases as a way to weed out bad doctors?

Moving away from med mal stories, Ron Miller discusses a 2003 study that addressed the impact of race and poverty on tort awards.

Also on product regulation, James Dorn of the Cato Institute writes on Toxic Toys: Congress Risks Making Things Worse. Dorn’s view is that we should simply let the market protect our children — caveat emptor.

Moving to trucking wrecks, Ken Shigley reports that Diane Feinstein has asked the Federal Motor Carrier Safety Administration to require electronic data recorder black boxes on tractor-trailers.

Also, Ron Miller highlights a potentially helpful reference item in Information That Medical Malpractice Lawyers Can Use.

It was also a big week for news re: photos at trial. Anne Reed at Deliberations points to a study that when jurors are presented with gruesome evidence they are more than five times more likely to convict than a juror not privy to such information. On a related note, USA Today had an article that Sharon Cave, whose daughter was murdered here in Austin, is pushing for juror counseling after seeing the jurors’ reactions to the gruesome photos introduced at the criminal trial that resulted from her daughter’s murder. Presumably, these same issues will apply in numerous personal injury cases.

And not specifically lawsuit related (but it may affect some of our clients), a recent study finds that mirrors can help prevent phantom limb pain.

And a new study in the New England Journal of Medicine reports that CT scans, ever present in litigation, have been linked to cancer. (Via Houston injury lawyer Bob Binstock.)

And a couple of miscellaneous notes.

San Diego lawyer Randy Walton addresses a San Diego Tribune Article that makes serious allegations about a San Diego personal injury firm being a p.i. “mill.”

I can’t turn down a link to multimillion dollar litigation related to the song “Grandma Got Run Over By A Reindeer.”

Federal judge Harold Baer has issued a 129 page decision that includes a lengthy “manifesto” on declining civility in the legal profession.

And Blawg Review 136 is up (or down under) at Australian Peter Black’s Freedom to Differ.

That’s it for 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

Medical Malpractice and “Defensive” Medicine

An anonymous Texas ER doc has a blog post discussing the medical malpractice story of Christopher Jones. Mr. Jones, 33, arrived at a Los Angeles area emergency room complaining of chest pains, where he was told to sit down and wait his turn. After more than three hours, he got up, walked outside, collapsed and died of a heart attack.

The post has some great thoughts on the necessity of so-called defensive medicine. However, some of the comments, apparently from other physicians, are quite chilling.

Thanks to the New York Personal Injury Law Blog for the link.

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

Good News From Austin For Homeowners

There’s some rare good news from Austin for Texas homeowners who have claims or lawsuits against their builders. Last Friday, the Texas Supreme Court handed down the opinion in Lamar Homes, Inc. v. Mid-Continent Casualty Company, and held that an insurance company owes a duty to defend (and likely a duty to indemnify) its homebuilder client under a commercial general liability (“CGL”) policy when the work done by the builder’s subcontractors causes defects in the home.

This holding is of utmost importance to both our homeowner and homebuilder clients. While many of the larger volume builders have the capacity to pay judgments or make repairs, many custom builders, which tend to be smaller operations, don’t. As a result, when making claims, two big battles were always (1) does the builder’s insurance cover the claim, and if not (2) does the builder have enough assets to cover any subsequent judgment. For almost all custom builder cases (since custom builders tend to not have employees and strictly use subcontractors to perform all the work), this case answers the first question in a way that’s favorable to both the homeowner making the claim and the homebuilder seeking insurance coverage for the claim.

Unfortunately, the victory may be short-lived. The likely result is that the insurance companies, as usual, will rewrite their policies to make sure they cover as little as possible.

Another summary of the case can be found don the Houston Litigation Blog.  For summaries of other Supreme Court decisions handed down last week, check out the Texas Appellate Law Blog. They’ll probably have summaries up in a few days.

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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