Toyota Tacoma recall
The drama continues. Toyota now is recalling 2010 Tacomas because of cracks in the front drive shaft. This could lead to "...separation of the drive shaft..."
Lexus E350 acceleration
Information has now come to light that there was an acceleration problem causing crashes in the Toyota made Lexus. Although the incidents were high enough to cause concern, there was no recall or publicity. Toyota never found a conclusive reason for the crashes. Yet here we are in 2010 with a massive recall of other Toyota vehicles with the same problem. Toyota first blamed floor mats and now a sticky gas peddle rod. My guess is that the true problem has yet to be discovered.
Continue Reading...Toyota recall
Toyota is recalling 2,000,000 of its cars because of a defect in its accelerator. Tragic injuries and even death have resulted from a sudden acceleration of Toyota vehicles. At first Toyota announced that the mat could hold the gas peddle down but now it appears the the problem is in the system itself. These problems have had a ripple effect as to some American cars such as the Pontiac Vibe.
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Candidacy for Supreme Court
"When can a plaintiff win in the Texas Supreme Court?"
"When one insurance company sues another." -- from Judicial Tort Reform in Texas
"When one insurance company sues another." -- from Judicial Tort Reform in Texas
That’s a joke among law clerks in the Texas Supreme Court, a reference to the court’s reputation for ruling in favor of corporations and insurance companies.
It’s included in a recent study by a University of Texas law professor that documented that bias, finding that the court ruled in favor of corporations or the insurance industry 87 percent of the time.
A separate study by Texas Watch, a non-partisan, advocacy organization reached much the same conclusion based on the court’s rulings for 2007-2008, stating in a recent article that “Texas families and consumers do not have a level playing field at the Texas Supreme Court. The Court has exhibited a clear bias towards insurance and corporate special interests for several years.”
As a candidate for Place 9, Blake Bailey is seeking to restore balance to the court. "We don’t want unfair decisions against insurance companies. We simply want a level playing field," Bailey said, "and we want the court to honor every American's right to a trial by jury.
"In many opinions the Supreme Court has held against a Texas citizen by deciding that the 12 members of the jury, the trial judge and the three Court of Appeals judges were 'unreasonable' in their fact findings."
"This is tantamount to stealing our right to trial by jury ... a right that is guaranteed by the U.S. and Texas constitutions.”
Continue Reading...Pharmacutical
The United States Supreme Court opened the door for legitimate litigation concerning unreasonably dangerous pharmacuticals when it rejected the preemption defense based on FDA approval. Several drugs are now involved in litigation. The following are a few:
1. Fentanyl Patch is used for chronic pain but can easily be overdosed, causing death. It is critical to rule out misuse since this medicine is used by patients in significant pain. Misuse can be eating, injecting and smoking the medication. If an attorney is considering such a case he needs to locate the patch.This can be hard since it may have been taken off by EMS or in ER. Check the written report and photos in autopsy.
This litigation is not yet in an MDL
2. Hydroxy cut is used for weight loss but can cause heart and liver damage. Since the drug is used by people who are over weight, it is important to rule out confounding variables before taking the case. Of course it isn't necessary to prove that this medicine is the sole cause of heart or liver damage.
3. Fosmax is used for osteoprosis. Unfortunately it can cause osteonecrosis of the jaw. This basically bad blood flow to the bone. The risk is literally losing the jaw. The unusual danger is that the drug has a half life of ten years. This means that those who have taken the drug are at risk for many years. There is a MDL in New York.
4. Kugal Mesh is a medical device used in hernia repair. The danger is two fold: The ring can spring loose causing internal damage. Also the adhesive side can become dislodged, adhering to organs.
5. Prempro is used by menapause. It is derived from horse urine. The medication causes breast cancer. This risk should have been emphasis in a "black box" warning on the package. Wythe did not follow up on studies after it was introduced into the market so the black warning was not on the packaging until about five years ago. There is a MDL in Littlerock.
6. Reglan is used for Acid Reflux. It cause a bazarre condition called Tardive Dyskinesia. It is important not to use the product for more than ninty days. Warnings have been totally inadequate. There is no MDL on this product.
7. Avandia is used for Diabetes. It can cause heart attacks. It is in a MDL.
Nuremberg
I recently watched a 1961 movie called Judgment At Nuremberg. The cast was a “who’s who” of great actors. Spencer Tracy played the part of the presiding judge in a trial of four Nazi judges who participated in the judicial evils of Hitler’s Germany. The following is an excerpt from his finding of the defendants guilty of crimes that has caused me to consider the issues we face as a people today.
Janning's record and his fate...
illuminate the most shattering truth
that has emerged from this trial.
If he and all of the other defendants
had been degraded perverts...
if all of the leaders of the Third Reich...
had been sadistic monsters and maniacs...
then these events
would have no more moral significance...
than an earthquake,
or any other natural catastrophe.
But this trial has shown...
that under a national crisis...
ordinary, even able and extraordinary men...
can delude themselves
into the commission of crimes...
so vast and heinous
that they beggar the imagination.
*****
How easily it can happen.
There are those in our own country, too...
who today speak
of the protection of country...
of survival.
A decision must be made
in the life of every nation...
at the very moment
when the grasp of the enemy is at its throat.
Then it seems that the only way to survive
is to use the means of the enemy...
to rest survival upon what is expedient,
to look the other way.
The answer to that is: Survival as what?
A country isn't a rock.
It's not an extension of one's self.
It's what it stands for.
It's what it stands for when standing
for something is the most difficult.
Before the people of the world...
let it now be noted...
that here in our decision,
this is what we stand for:
Justice...
truth...
and the value of a single human being.
Dangerous equipment to change a tire
Many of the new cars are equiped with flimsy equipment for changing a spare tire. Ironically, the more likely the care is to be one you would give your daughter the more likely the handle the lug wrench is to be short. A lever that short just isn't going to loosen a lug nut that some idiot has tightened as tight as his air wrench will go. Someone is going to get hurt jumping up and down on the Matel-toy-looking lever. Even worse, your daughter might be stranded in a dangerous place. One would think that such a simple safety concern would have been addressed by car manufacturers. By the way, Toyota, that included the Prius I'm driving.
Continue Reading...General Motors Recall due to fire danger
General Motors Corp is recalling 1.5 million cars because of fire danger. Oil leaks in the 1997 Pontiac grand Prix,1997-2003 Buick Regal, 1998-2003 Chevrolet Lumina, Monte Carlo and Impala. have caused a fire hazard. Additional information can be found with the National Highway Traffic Safety Administration.
Sanatized juries
The right to trial by jury exists in the sixth and seventh amendment of the United States Constitution. It empowers the people in a way that did not exist in the countries from which our founders escaped. Thomas Jefferson said that he felt the right to trial by jury was even more important than the right to vote. The jury must be a jury of our peers for the system to work. If a citizen commits a felony or a misdemeanor theft, they lose their right to serve on a jury for life—no matter how good of a citizen they may later become.
Fairly often two of our courts have what has become known as “dollar and a day”. Possibly 50-100 people who wrote a hot check are lined up. They are offered a dollar find and pretty steep court costs if they will plead guilty. Some of the offenders need punishment because they are just thieves. Others are single mothers who didn’t have enough money to cover the check for diapers they bought. For the rest of their lives they must admit to their conviction and can not serve on a jury. A sixty year old woman, who was herded through “dollar and a day” at age eighteen for a $25 check, still is disqualified from serving on a jury.
This system is designed merely for the poor and sanitizes the jury panel of peers for a poor citizen seeking a fair trial.
Death of Fed preemption for FDA
The United States Supreme Court just handed down a decision in Wyeth v. Levine throwing out the fiction created by the Bush Administration. The spurious argument that pharmaceutical companies can dupe the under manned FDA into approving a drug or its labeling and thereby avoid civil liabilities. In a sweeping 6-3 opinion it declared such nonsense unpersuasive, reviving the rights of states to make and enforce their own civil laws and the right of citizens to seek redress in the court system. This is a banner day.
For more information on pharmaceutical litigation in Texas see www.bailey-law.com
Continue Reading...Federal preemption
I know I have been railing about federal preemption when it has no legitimate legal justification and amounts to a violation of the reserved rights of states set out in the Constitution. But things keep getting worse. A few years ago the Supreme Court affirmed a preemption for injuries at extrahazardous railroad crossings because the government fronted the cost for luminus paint for cross buck signs--with no thought that this would cause all intersections to be safe.
I keep arguing that big pharmacutical companies, which bully FDA to approve medicine not proved to be safe just to get it on the market at break-neck speed, are at the brink of blanket immunity on the frivilous theory of federal preemption. More evidence keeps piling up that the FDA simply is not equiped to make such decisions. To use the guize of FDA approval to preempt the right of hundreds of thousands of consumers who rely upon the expertise and good faith of the manufactures and subsequently suffer serious conditions and death, is unconstitutional and unethical.
The AP (1/12) reports, "An internal watchdog finds that financial conflicts involving outside researchers who test experimental drugs often remain hidden," and "missing information, loopholes, and weak oversight hamper efforts to uncover financial conflicts involving researchers who test experimental drugs before companies seek government approval." The Health and Human Services inspector general's office's report said, "We found a number of limitations in" the Food and Drug Administration's (FDA) "oversight, leaving FDA unable to determine whether [drug companies] submit financial information for all clinical investigators." According to the AP, "because scientists can be tempted by profits, the government requires disclosure of possible conflicts involving clinical researchers who review medications before drug companies seek FDA approval."
The FDA "does almost nothing to police the financial conflicts of doctors who conduct clinical trials of drugs and medical devices in human subjects, government investigators are reporting," the New York Times (1/12, A10, Harris) adds. Noted was that, "in percent of clinical trials, the agency did not receive forms disclosing doctors' financial conflicts and did nothing about the problem, according to the investigation, which was conducted by the inspector general of the Department of Health and Human Services and whose results were scheduled to be made public Monday." Another study "by the inspector general last year found that the National Institutes of Health did almost nothing to police the financial conflicts of university professors who received federal money."
Please let me know your feelings. B
FDA
House Energy and Commerce Committee ranking Republican Rep. Joe L. Barton of Texas asked for clarification from the Food and Drug Administration (FDA) this week concerning deaths related to the blood thinner heparin. His letter called into question the adequacy of the agency's review of the deaths. He highlighted previous correspondence from the FDA he received in October that tied two cases of heparin-related deaths to drugs produced by American Pharmaceutical Partners (APP). The APP heparin was not tested for contaminants, according to a FDA letter. FDA spokeswoman Karen Riley gave no substantive response but said "the agency looks forward to clarifying the issue with Barton."
How can the United States Supreme Court or President Bush seriously think that it is a good idea to preempt private law suits against pharmaceutical companies based upon FDA approval. Surely this approach to rights reserved to states and individuals can't be removed in such a cavalier fashion.
Responsibility
A draft of a federal report by the Office of the Special Inspector General for Iraq Reconstruction reveals a $100,000,000,000 failure to reconstruct Iraq. The causes include bureaucratic incompetence, turf wars and a fundamental ignorance of Iraq. Some companies became rich by being the beneficiaries of unsupervised payouts of taxpayer money. In a way this mess is similar to the unregulated financial market with close political ties, spinning us into an economic disaster. It is not the American worker who has put us in this position. It is the effect of a government that has usurped the authority of our courts, compromised the press and shrouded the Constitutional guarantee of transparency. We have fired many of the politicians responsible and now need to prosecute the companies that profited from their close connections to Washington.
Does anyone have any ideas about civil litigation against those involved?
The Bush conspiracy
Bush has unilaterally undermined much of American tradition of fair play and individual protection protected by the "Rule of Law" protection. He has done so by unsupervised listening to our conversations. He has determined that it is okay to hold people for years who have been convicted of nothing and will never be convicted in many cases because of a dearth of proof. He has secretly authorized torture. Now he is using the tricks of his administration to circumvent both Congress and the Courts by taking away the rights of citizens injured or killed by the Railroad to seek recompense by our court system. Railroad companies later this month will be immune from state tort lawsuits under a so-called 'midnight regulation that the Transportation Safety Administration (TSA) has adopted which is included in the final rule of the rail transportation security measure that the TSA, which is part of the US Department of Homeland Security, published in the Nov. 26 Federal Register. The rule takes effect Dec. 26. The Bush Administration has used the premise in numerous other regulations that state tort lawsuits are impliedly preempted by federal law, but Congress in a 2007 measure related to a train accident expressed that it did not intend to preempt state tort claims.
There is no justice or logic in this sweep of Federal preemption except to save insurance while those victimized by the negligence of the Railroad suffer helplessly.
What are your thoughts about judicial and political efforts we can make to preserve state law which protects victims of negligence and dangerous products?
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Product Recall Due to Plastic Chips in Meals
Several varieties of Lean Cuisine frozen meals were recalled in late November after seven different customers reported finding pieces of hard blue plastic in their meals. According to a spokesman for Nestle Prepared Foods Co., the company that owns Lean Cuisine, at least one consumer was injured when a piece of plastic in the meal cut the person's gums.
Chopped Up Plastic in the Meals
"A tray may have broken and chip-chopped into the product," said Roz Ahearn of Nestle. On the Lean Cuisine website, the company describes the product recall in detail, noting first that the three types of meals being recalled are:
- Lean Cuisine Spa Cuisine Chicken Mediterranean
- Lean Cuisine Dinnertime Selects Chicken Tuscan
- Lean Cuisine Café Classics Pesto Chicken with Bow Tie Pasta
Not All of the Meal Varieties
The website notes that the recall is of only meals of these varieties with certain production codes, listed on the site. The production code is given on the right end flap of the meal. Most of the recalled meals have an expiration date in 2009 or 2010.
Lean Cuisine Spa Cuisine Chicken Mediterranean
8231 5959
8241 5959
8263 5959
8269 5959
8274 5959
8291 5959
8301 5959
Lean Cuisine Dinnertime Selects Chicken Tuscan
8234 5959
8253 5959
8269 5959
8292 5959
8296 5959
Lean Cuisine Café Classics Pesto Chicken with Bow Tie Pasta
8280 5959
Nestle says that it has determined that the blue plastic contaminating the meals entered a facility in a single lot (batch) of a raw ingredient. Over one million of the three Lean Cuisine meals are being recalled.
(Source: Washington Post)
What do you think about the FDA's ability to screen the food we eat?
Continue Reading...Political influence on products lawsuits
LawyersUSA (11/11, Atkins) reported, "The election is over, but a battle between business associations and trial lawyer groups is just beginning. Following the presidential election, groups such as the US Chamber of Commerce began warning that the Democrats' agenda would be bad news for businesses. Trial lawyers, however, say planned changes are necessary to restore a 'civil justice' system decimated by the outgoing Bush administration. Linda Lipson, spokeswoman for the Association for Justice, said that "changes to legislation and regulations are needed to" undo "the damage that President George W. Bush's policies have done to consumer rights." She said, "Manufacturers got the weakest possible rules on safety, and attached to it they got language that cut off consumers' remedies." Lipson added, "What we are trying to do is restore some balance and give consumers and victims of dangerous products a fair shake."
What are the chances Obama will be able to cure the last minute political paybacks Bush is not putting on the head of consumers?
Continue Reading...
FDA warns bayer about aspirin
The FDA has warned Bayer about its aspirin claims. According to the AP, the FDA "scolded [Bayer] in two warning letters for never submitting proof that its pills -- Bayer Women's Low Dose Aspirin + Calcium and Bayer Aspirin with Health Advantage -- are effective in battling heart disease and osteoporosis."
Janet Woodcock of the FDA's Center for Drug Evaluation and Research said that if these aspirin-containing products are overused or not used properly, consumers can be at risk for internal bleeding and other issues.
Treatments for these two diseases are required to be reviewed by a board of government scientists and cannot be sold over-the-counter.
For such "combo pills," dietary supplements and drugs, to be legally marketed, they are subject to approval and generous regulation.
What comments do you have about the weakness of the FDA and ways we might be able to improve it? Do you agree with me that potential of personal injury lawsuits provide a second line of protection for the consumers?
Continue Reading...Federal preemption
Continue Reading...Wyeth v. Levine went before the Supreme Court on Monday. The case was heavily covered, with articles appearing in national newspapers and on all four wire services. A number of papers described the court as divided and predicted that the case will be decided on narrow grounds.
In an article on the front page of its Business section, theWashington Post (11/4, D1, Markon) reports that Diana Levine's suit against Wyeth is "one of the most hotly contested cases of the Supreme Court's term. The justices yesterday debated Wyeth's contention -- which is supported by the Bush administration -- that the lawsuit should be thrown out because federal law preempts such state court claims." There were "divisions within the conservative bloc on the court." Justice Samuel A. Alito Jr. questioned how the [Food and Drug Administration] (FDA) approved a drug "as 'safe and effective' when 'you have the risk of gangrene.'" Also, "Justice Anthony M. Kennedy disputed Wyeth's contention that it could not have followed the Vermont law under which Levine sued without violating the federal law that regulates drug labeling." However, "Justice Antonin Scalia grilled Levine's attorney intensively, scowling at him." There is "an intensifying national debate over 'preemption,'" and "Levine's lawsuit struck a particular nerve, with both sides mounting intensive media campaigns before yesterday's argument."
The New York Times (11/4, A20, Lipak) reports that this "was supposed to be the term's blockbuster business case," but the argument "quickly turned into a search for limiting principles." According to the Times, "Several justices appeared open to the idea that preemption could follow from the FDA's approval of a drug label -- but only if drug companies remained subject to lawsuits if they failed to disclose new information about potential risks," and "other justices seemed prepared to allow preemption -- but only if the drug agency had considered the particular risk before approving the label." The Times adds, "Given the justices' interest in those refinements, the court seemed unlikely to rule broadly on the larger issues in the case: whether the agency and other federal regulators set minimum safety standards that states are free to augment or whether they make judgments about the optimal balance between risks and benefits that states must follow."
The AP (11/3, Sherman) added, "Several justices indicated that if the U.S. Food and Drug Administration had clear information about the risks of Wyeth Pharmaceuticals' anti-nausea drug Phenergan, and approved its warning label anyway, then Wyeth probably would prevail in its court fight against Diana Levine of Vermont." However, "there was considerable skepticism among the justices -- and disagreement between the opposing lawyers -- that the FDA had a clear picture of the disastrous consequences of improperly giving Phenergan by" IV push.
The Wall Street Journal (11/4, A3, Bravin) notes, "Several Supreme Court justices expressed skepticism with arguments given Monday by business interests hoping for wide immunity from lawsuits over federally regulated products."
USA Today (11/4, Biskupic, Appleby) points out that "much of the give-and-take centered on what happened in Levine's case. A majority of the justices did not tip their hand, although they emphasized different issues." While "Justices Ruth Bader Ginsburg and Samuel Alito raised questions of patient safety and the adequacy of FDA review of the drug label," both "Chief Justice John Roberts and Justice Antonin Scalia focused on drugmakers' ability to meet federal requirements without further demands from the states." Another USA Today (11/4, Biskupic) article reports, "A majority of the justices did not tip their hand during the hour of oral arguments. Many suggested a key question may be how the FDA had handled any attempt by Wyeth to change its label to made clear the dangers from the particular administration used on Levine."
The Legal Times (11/3, Mauro) reported, "The Supreme Court appeared torn" during the argument, and "the case could be decided narrowly, giving little guidance about broader preemption issues beyond the area of drug labeling." In contrast, McClatchy (11/3, Doyle) reported, "several justices appeared ready to declare that federal regulations preempted certain state lawsuits. That would be a major victory for the drug company." CongressDaily (11/3, Edney) also reports that Levine's lawyers "faced hefty skepticism from justices."
The Los Angeles Times (11/4, Savage) reports, "If the court agrees with the administration, congressional Democrats have said, they will seek to revise the law and restore consumers' right to sue." The Kiplinger Letter (11/4, Craver) reports, "Lawmakers have already taken action to help remedy the issue. In reauthorization legislation for the Consumer Product Safety Commission, Congress nullified the preemption language by inserting a section that preserves the right of consumers to seek restitution from those who caused them harm." During President Bush's administration, "over 60 proposed or final regulations put out by government agencies include language aimed at shielding companies from product liability claims. Les Weisbrod, president of the American Association for Justice, said, "In effect the Bush administration has made the safety of Americans secondary to corporate profits."
In the Health blog on the Wall Street Journal (11/3), Sarah Rubenstein wrote, "what happens in tomorrow's presidential election may be every bit as important as what the Supremes say about Wyeth v. Levine," because "a Wyeth victory in court could be offset by an Obama presidential victory and a Democratic Congress."
Sen. Leahy argues Levine should prevail. In the Congress blog on The Hill (11/3), Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, wrote that "every American consumer will have a stake in the outcome" of this case. "The justices' ruling in Ms. Levine's case will affect the millions of Americans who use prescription drugs and may suffer avoidable injuries." Meanwhile, "the Bush Administration is taking the drug companies' side against consumers, putting corporate profits above all else." However, "corporate accountability and the right of American citizens to seek justice in their state courts hang in the balance." Should the Court overturn "the Vermont jury's decision, even the most misleading, inaccurate or insufficient drug label, if okayed by the FDA, will immunize a company from virtually all attempts by injured consumers like Ms. Levine to receive compensation."
Justice for the People
Here's a video produced by the American Board of Trial Advocates "Justice for the People":
Continue Reading...
Preemption defense for dangerous drugs
This Fall the United States Supreme Court will hear arguments concerning a Vermont Supreme Court opinion that allowed Diana Levine to keep her $6.7 million verdict against Wyeth, the manufacturer Phenergan. The drug manufacturer did not warn against injecting the drug which lead to the amputation of her arm. It found that "the drug's label offered insufficient warning about the danger of that injection method compared with two other, safer ways to administer the drug." The issue is whether drug manufacturers are immuned from being sued if they have obtained FDA approval. This ridiculous defense was cooked up by the Bush administration to protect the contributors to its campaign. The FDA is an underfunded agency that is relegated to approving drugs based on the reports provided to it by the drug company under pressure to get its product out on the market in advance of competitors. This case is Levine is supported by "47 states, public-health groups such as the Texas Medical Association and patient-advocacy organizations," while "the Bush administration, the US Chamber of Commerce and groups representing drug makers are siding with Wyeth." The following are some excerpts from news reports regarding this offense to American consumers and our sense of right and wrong.
The Wall Street Journal (10/30, A3, Mundy) reports "Internal memos contradict the FDA's position in Wyeth v. Levine that "federal drug-approval and warning-label standards should trump stricter state laws." In the memos, two officials said "it is wrong to assume that FDA-approved drug labels are completely reliable, or that they are based on full disclosure of safety risks by drug makers." John Jenkins, the top official in the drug approval section, in 2003 wrote, "Much of the argument for why we are proposing to invoke pre-emption seems to be based on a false assumption that the FDA approved labeling is fully accurate and up-to-date." Additionally, "the associate director of the FDA's division for drug evaluation and research, Jane Axelrad, objected to the idea that companies would put too much safety information on the label if they weren't controlled by the FDA." Rep. Henry Waxman (D-CA) released the documents, which "are likely to encourage him and other Democrats in Congress who want to pass bills reversing the Bush administration's pre-emption policy."
The Los Angeles Times (10/30, Savage) notes that the FDA officials said that "new information often comes to light that calls for new warnings to doctors and patients." The Times adds, "Contrary to the view of the White House and the FDA general counsel, the drug regulators said pharmaceutical manufacturers could not be trusted to warn patients of new risks." While "consumer-rights advocates said the internal documents showed that the staff experts at the FDA were overruled by the White House and its political appointees," the FDA Office of Public Affairs "defended its process."
Continue Reading...
Georgia invasion
Recently Bush criticized Russia for invading Georgia, stating “Georgia’s territorial integrity must be preserved.” Although Russia has agreed to leave Georgia—some day, its foreign minister told reporters its forces would stay “as long as they were needed”. He explained that the agreement to withdraw did not determine the “ceiling for the peacekeeping contingents”. The time of withdrawal doesn’t depend just on Russia, he argued, but is influenced by problems created by Georgia. Further, to justify the invasion and reluctance to agree to a timetable for withdrawal, he referred to the president of Georgia as a war criminal. The president of Georgia contends that Russia intends to turn his Republic into a “vassal state”. Let’s see, invading the territorial integrity of another nation and turning it into a vessel of the invader’s political philosophy is wrong. Refusing to accept a time table for withdrawal of “peacekeeping contingents” but rather the president calling shots as sees them from conditions on the ground is not right. Calling the president of the invaded country a war criminal doesn’t seem to justify invasion. Man, am I confused. I thought that was our national policy!
Trial for a Terrorist
So this is it? For years the world has seen Gitmo photographs of naked men being tormented and stories of torture techniques for which the United States prosecuted and executed Nazi war criminals. Our argument has been: “That’s what 24’s Jack Bower would have done to save us from terror. Surely the guys we have been holding without hope of release, or even a trial, were the really bad guys who were responsible for planning and carrying out bombings and acts of mutilation.” Then the guy we try first is a car driver/mechanic employee, father of two and possessor of a fourth grade education, who hasn’t killed or mutilated anyone. He has been a prisoner for five years and only received a trial after many attempts by our President stop it. A jury of six military officers found him guilty of supporting al-Qaeda by driving bin Laden and carrying weapons in the car he drove, but found him not guilty of terror conspiracy. His sentence is about the same length of time as the time he has served but Bush is arguing that he should be kept locked up for an indeterminate amount of time anyway. Wasn’t there someone at Gitmo the government could have tried who did something really evil? Is there some way the critics of the United States could have gotten any more political ammunition against us than this guy being the first example of the Gitmo prisoners we didn’t want to give a trial? Jack Bower would have never messed with a driver/mechanic who obviously was outside the terror loop.
Digitek
The Texas Supreme Court has made it almost impossible to bring a suit for damages against a pharmaceutical company. It has determined that if the FDA approves a drug there should be a defense of pre-emption. The United States Supreme Court is considering doing the same nation wide. Digitek (digoxin) is different because it was manufactured defectively and contained twice the dose approved by FDA. Victims of this drug still have a fighting chance for justice in the court system.
Continue Reading...
Railroads and workplace safety
Plaintiff must prove the following essential elements to sustain a claim for FELA negligence, causation and personal injury defendant: (a)Negligent maintenance of safety at the work place (b)Causation—no matter how slight—between that negligence and damages (c)personal injury damages.
Railroad companies continually use public and private property to organize work crews and park trucks and equipment. They do this without paying for the use or getting permission. This might save the company money but subjects the workers that can not be properly supervised or assured to be safe.
Most recently I tried to successful conclusion a FELA (federal employers liability act) case for a Maintenance of Way worker who fell into a man hole partially obscured by snow. The unsupervised property under a bridge, owned by a small town, was not supervised or watched. The railroad company merely instructed its employee to pick up a truck left there by another crew. In the interum some vandals stole the man hole cover...an act that would not have happened on guarded railroad property.
Continue Reading...Bad medicine
“I have come to understand that money from the pharmaceutical industry can shape the practices of nonprofit organizations that purport to be independent in their viewpoints and actions,” is a statement by Republican Senator Grassley written to the Psychiatric Association. My response is "Oh really?" The age old axiom of politics is Follow the Money. I'm glad someone in charge is stumbling across the impact of big money on the medicine we take every day based on nothing but child-like faith of the pharmaceutical and medical industry.
In 2006 money from the pharmaceutical industry accounted for about 30 percent of the association’s $62.5 million in financing. About half of that money went to drug advertisements in psychiatric journals and exhibits at the annual meeting, and the other half to sponsor fellowships, conferences and industry symposiums at the annual meeting.
As obviously wrong is this situation is, it is a small sin compared to the comedy of FDA approval of new drugs on the market. The FDA doesn't have the resources to study the effects of new medications. It uses the studies of the companies who stand to gain billions of dollars and are under intense pressure to beat a competing company to make it to the market with a similar product. Many of the scientists and medical doctors go to work for these companies after a tenure with FDA.
The Texas Supreme Court, financed in great part by pharmaceutical companies, has held that if the FDA approves a drug, a consumer can not sue for injuries from using the drug no matter how harmful it turns out to be. The United States Supreme Court is considering the same pre-emptive law to disadvantage victims of unreasonably dangerous drugs. Attorneys for those hurt are fighting to find legal theories around these roadblocks.
The drug giants have produced good products for us but it is immoral for them to use their wealth to take advantage of the fiduciary relationship to the patients they make a profit to protect.
So, what's the answer?
politics and energy
The American people are up in arms about the cost of fuel. Actually, it is fortunate, in a way that our personal short-term needs are beginning to coincide with our long-term duties as stewards of Earth. Candidates feed us clichés rather than hard truth and leadership. Cutting gas taxes for the summer will rob funds for highway and bridge maintenance and repair with no lasting relief. Drilling off shore and in the Alaskan wildlife preserve might lower gas prices by a few cents a gallon in ten years but will provide no meaningful or timely remedy to this crisis. Taking away the sweetheart tax deal from oil companies may be a good idea for other reasons but not for energy independence. All of this political rhetoric is nothing more than a distraction.
Intermediate relief can be provided by our new President by pulling out of a war crippling our ability to address concerns including energy costs. Additionally, our government can create real tax incentives and grants for private and academic research into alternate energy and energy conservation.
Short term relief is in the citizens’ hands. It is time for a leader who will mimic the inspiration of Churchill promising “…blood, sweat and tears.” in World War II and Kennedy telling Americans to ask not what our country can do for us but what we can do for our country. Americans are willing to sacrifice if we know that it is necessary and fair. This is a classic opportunity for our politicians to actually lead with truth and inspiration. The cumulative effect can be staggering. It is within our ability to do such things as install energy light bulbs and insulation. We can turn off lights and electronics; raise the thermostat a few degrees; ride the train or bus; carpool; etc.
Our next car can be kinder on gas mileage and we can drive slower. Many of us push our 70 MPH speed limit to near 80 on our highways, (Mia Copa). Each increase in miles per hour decreases miles per gallon with greater impact as speed continues to grow.
Coincidentally, most serious injuries and death increase by multiples at the higher speeds. Stopping distance is 304 feet at 60 MPH; 388 feet at 70 MPH; and 481 feet at 80 MPH. A car traveling at 60 MPH covers 88 feet per second; 70 MPH, 103 feet per second; and 80 MPH, 117 feet per second.
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Intermediate relief can be provided by our new President by pulling out of a war crippling our ability to address concerns including energy costs. Additionally, our government can create real tax incentives and grants for private and academic research into alternate energy and energy conservation.
Short term relief is in the citizens’ hands. It is time for a leader who will mimic the inspiration of Churchill promising “…blood, sweat and tears.” in World War II and Kennedy telling Americans to ask not what our country can do for us but what we can do for our country. Americans are willing to sacrifice if we know that it is necessary and fair. This is a classic opportunity for our politicians to actually lead with truth and inspiration. The cumulative effect can be staggering. It is within our ability to do such things as install energy light bulbs and insulation. We can turn off lights and electronics; raise the thermostat a few degrees; ride the train or bus; carpool; etc.
Our next car can be kinder on gas mileage and we can drive slower. Many of us push our 70 MPH speed limit to near 80 on our highways, (Mia Copa). Each increase in miles per hour decreases miles per gallon with greater impact as speed continues to grow.
Coincidentally, most serious injuries and death increase by multiples at the higher speeds. Stopping distance is 304 feet at 60 MPH; 388 feet at 70 MPH; and 481 feet at 80 MPH. A car traveling at 60 MPH covers 88 feet per second; 70 MPH, 103 feet per second; and 80 MPH, 117 feet per second.
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Bison and Harley Davisons
Recently my client was driving his Harley home at night and a Bison charged out on the dark road. My client has no memory of the accident. The result was the death of the Bison and my client almost losing his life. By courageous efforts, his physician saved his leg. In Texas livestock can roam on Farm to Market Roads with impunity unless there is an election in the county to change the law. Fortunately the dark road was not a Farm to Market Road. The distinction as to whether a Bison could be considered live stock as contemplated by the statute. Next the question is whether a Bison is by its nature a wild ferocious beast, (ferae naturae). Strict liability law governs such situations. It was problematic to draw the Bison into this law since there was no evidence that the accident occurred due to the ferocious, wild nature of this Bison. Now one knows how long the beast was out or how it got out. The best logic for the plaintiff was a version of the special laws dealing with wild animals. The Bison is a great athlete. It can run faster and jump higher than a horse. The negligence for the landowner is that Bison could not be prudently be pastured in a pasture contiguous to a public road with marginal cattle fences. At the least the border fences should have been six feet or higher and reinforced. We settled while the jury was deliberating
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Texas Supreme Court Corruption
The Houston Chronicle reported this morning that a prominent Houston attorney helped Texas Supreme Court Justice David Medina secure bail. That’s bad enough, but it turns out that the attorney, Frank Harmon, is involved in a landmark asbestos case that is currently pending at the Court. This information came to light after Texas Watch discovered Mr. Harmon’s connection to the Crown Cork & Seal case which was argued before the Court in February.
There are more questions than answers in this matter: Was this a wink and nod? Who asked Harmon to get involved? Did he coordinate with Justice Medina? Why was he involved in the first place? Given their financial problems, would the Medinas have secured bail without Harmon’s help? How did Harmon know the Medinas needed help if they didn’t ask for it? Did Medina violate the public trust?
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There are more questions than answers in this matter: Was this a wink and nod? Who asked Harmon to get involved? Did he coordinate with Justice Medina? Why was he involved in the first place? Given their financial problems, would the Medinas have secured bail without Harmon’s help? How did Harmon know the Medinas needed help if they didn’t ask for it? Did Medina violate the public trust?
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Aircraft Safety
Passengers recently collected at airports around the nation waiting for a flight while American Airlines commit a crash program of safety repairs that should have been done long before. This chaos closely followed the embarrassment suffered by Southwest Airlines. Aviation is a safe method of transportation but is unforgiving. The lack of regulatory control over such issues as safety inspections of airliners is shocking but typical of the cozy relationship between the Bush administration and industry. The odd-man out is the consumer.
Not only were the airlines only required to voluntarily report safety issues, the FAA allowed some reporting to slide altogether. Only low level FAA inspectors would receive reports. As a result of this news the FAA is instituting steps that one would have thought to have already been standard procedure. Among those steps is forcing high-ranking airline personnel to submit reports to the FAA of safety problems or compliance issues filed voluntarily by airline employees. In the past, lower-level airline workers could make such disclosures.
Transportation officials said yesterday that new rules will also require senior-level FAA officials to receive those reports to ensure that rogue inspectors are not being too lenient on the airlines.
The last line of defense for consumers is the right to trial by jury. Without the empowerment of trial, industries providing products and services can skate. It is silly to think that deterrence can be left to regulators. Both remedy for injury and deterrence for violation of safety standards must remain with the courts and juries. We must stop the insurance and corporate powers from destroying our Constitutional right to trial by jury.
Wal-Mart Ethics
In 2007, Walmart reported net sales in the third quarter of $90,000,000,000.
One of their associates (employees) suffered a tragic automobile accident from which she lost her short term memory. Since then her son died in Iraq. Every time she asks about him and is told he was killed she weeps with the anguish of being told for the first time her son is dead.
Although Wal-Mart was notified of a settlement in her case against the other driver, it did not demand any of the almost $500,000 in medical bills paid by its medical insurance. The net settlement to her was far less than her medical bills. Years later it decided to sue its employee to get the money she received. The medical payments were made because it's employee paid premiums but Walmart insisted on a provision that it would get its money back regardless of how badly their employee was hurt or how small the settlement was compared to her injuries.
Wal-Mart spokesman John Simley, who called Debbie Shank's case "unbelievably sad," replied in a statement: "Wal-Mart's plan is bound by very specific rules. ... We wish it could be more flexible in Mrs. Shank's case since her circumstances are clearly extraordinary, but this is done out of fairness to all associates who contribute to, and benefit from, the plan."
Mr. Simley expresses concern for the other associates if this poor woman is given a break. My guess is that if it asked all the associates to pitch in less than a dollar to avoid this terrible action, everyone would agree. The "very specific rules" to which Mr. Simley refers are Walmart Rules and, therefore, can be changed by Walmart in the face of human tragedy. Unfortunately Walmart does not have a department of conscious down the hall from its legal department.
Constitutional privacy rights
One of the fundamental tenants of dictatorial control is invasion of the privacy and thoughts of the citizens. The administration has closely guarded its program to spy on American citizens. This is done in the name of national security. We are told to trust the Administration even though the highest levels of government outed a CIA agent for political revenge.
In the old days law enforcement ran their projects by a judge to assure that there was a legitimate reason for this private invasion by the government. This system worked well for prosecuting organized crime in the US. Later the process was refined to avoid critical delay in terrorist investigation. A special Court trained to address these types of warrant requests related to national security became on call 24/7. Law enforcement could present the warrant 48 hours after the fact for retroactive approval if necessary.
Unrestricted and unapproved discretion by the government’s agents has not worked.
1. A New York governor was subject to phone and computer tapping and teams of FBI agents tailing him on numerous occasions in hopes of catching him committing a misdeamor by having sex with a prostitute because he was “High Profile”.
2. Senator Obama’s passport records were invaded on three separate occasions. A computer alarm went off each time because a warning system was installed years ago when President Bill Clinton’s private records were accessed.
3. None of the alarms were reported to management, much less to the public.
4. Ironically, the matter was brought up by the press.
5. As a result of the outing by the press, our government has now discovered that the private records of Senators Clinton and McCain have been reviewed.
Our democracy requires the check and balance of judicial oversight which is demonstrated over and over by the tiny amount of visibility we have of the convert efforts of our government.
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In the old days law enforcement ran their projects by a judge to assure that there was a legitimate reason for this private invasion by the government. This system worked well for prosecuting organized crime in the US. Later the process was refined to avoid critical delay in terrorist investigation. A special Court trained to address these types of warrant requests related to national security became on call 24/7. Law enforcement could present the warrant 48 hours after the fact for retroactive approval if necessary.
Unrestricted and unapproved discretion by the government’s agents has not worked.
1. A New York governor was subject to phone and computer tapping and teams of FBI agents tailing him on numerous occasions in hopes of catching him committing a misdeamor by having sex with a prostitute because he was “High Profile”.
2. Senator Obama’s passport records were invaded on three separate occasions. A computer alarm went off each time because a warning system was installed years ago when President Bill Clinton’s private records were accessed.
3. None of the alarms were reported to management, much less to the public.
4. Ironically, the matter was brought up by the press.
5. As a result of the outing by the press, our government has now discovered that the private records of Senators Clinton and McCain have been reviewed.
Our democracy requires the check and balance of judicial oversight which is demonstrated over and over by the tiny amount of visibility we have of the convert efforts of our government.
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Judicial oversight
One of the fundamental tenants of dictatorial control is invasion of the privacy and thoughts of the citizens. The administration has closely guarded its program to spy on American citizens. This is done in the name of national security. In the old days law enforcement ran their projects by a judge to assure that there was a legitimate reason for this private invasion by the government. This system worked well for prosecuting organized crime in the US. Later the process was refined to avoid critical delay in terrorist investigation. A special Court trained to address these types of warrant requests related to national security became on call 24/7. Law enforcement could present the warrant 48 hours after the fact for retroactive approval if necessary.
Unrestricted and unapproved discretion by the government agents has not worked.
1. A New York governor was subject to phone and computer tapping and teams of FBI agents tailing him on numerous occasions in hopes of catching him committing a misdeamor by having sex with a prostitute because he was “High Profile”.
2. Senator Obama’s passport records were invaded on three separate occasions. A computer alarm went off each time because a warning system was installed years ago when President Bill Clinton’s private records were accessed.
3. None of the alarms were reported to management, much less to the public.
4. Ironically, the matter was brought up by the press.
5. As a result of the outing by the press, our government has now discovered that the private records of Senators Clinton and McCain have been reviewed.
Our democracy requires the check and balance of judicial oversight which is demonstrated over and over by the tiny amount of visibility we have of the convert efforts of our government. Blake Bailey
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Unrestricted and unapproved discretion by the government agents has not worked.
1. A New York governor was subject to phone and computer tapping and teams of FBI agents tailing him on numerous occasions in hopes of catching him committing a misdeamor by having sex with a prostitute because he was “High Profile”.
2. Senator Obama’s passport records were invaded on three separate occasions. A computer alarm went off each time because a warning system was installed years ago when President Bill Clinton’s private records were accessed.
3. None of the alarms were reported to management, much less to the public.
4. Ironically, the matter was brought up by the press.
5. As a result of the outing by the press, our government has now discovered that the private records of Senators Clinton and McCain have been reviewed.
Our democracy requires the check and balance of judicial oversight which is demonstrated over and over by the tiny amount of visibility we have of the convert efforts of our government. Blake Bailey
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Railroad Workplace Safety
Some acts of negligence are the result of situational decisions. Split second decisions while driving a car can be the product of negligence that foreseeably cause injury to another. At thirty miles an hour, a person’s car gains forty-four feet a second. For that reason, the fate of others is determined in a heartbeat.
Other acts of negligence are made by premeditated corporate calculations in a boardroom. These decisions have no excuse from being made under pressure.
One of the decisions made by railroad companies is to use property not owned by them to conduct their business. Parking lots of retail businesses or unused city properties are examples of workplaces for railroad workers in maintenance of way. Workers are ordered to show up at these places to organize crews, pick up equipment and trucks.
There are two characteristics of these non-railroad property workplaces:
1. It is free to the railroad company.
2. There is no practical way that the railroad company can honor its duty to provide workplace safety.
A classic example of this mismanagement occurred in the small town of Nebraska City, Nebraska in which Union Pacific Railroad Co ordered employees to pick up trucks and organized work gangs on municipal property under a viaduct. This out-of-the-way property was not used or supervised by Nebraska City. The railroad did not reach an agreement or even inform Nebraska City of its free use of this property.
Union Pacific did not determine that the property was being supervised by the city or undertaken the duty itself. As a practical matter Union Pacific could not assure the safety of the property as a workplace. No permanent supervision or security was in force. It is important to note that this is not an isolated occurrence but exists today throughout the United States.
A maintenance of way employee showed up at this site under orders to pick up a truck. He arrived a day after a snow storm. While walking up to the truck, he fell into an open manhole. The manhole cover had been removed by someone--an act of some effort that could have never gone unnoticed in a supervised railroad property. This bizarre violation of workplace safety occurred as a result of a cold, calculated decision by management to save money and unethically use municipal property without permission or arraignments. This management decision is occurring today and will occur tomorrow.
Attorneys representing workers in FELA cases should take to task the railroad companies putting their workers at risk by trespassing on property owned by others.
Recall
Torchiere Lamps have been recalled By L G Sourcing Due to Fire Hazard; Lamps Sold Exclusively At Lowe’s Stores according to the U.S. Consumer Product Safety Commissionon. Consumers should stop using recalled products immediately unless otherwise instructed.
The name of the product recalled is Incandescent Torchiere Lamps
About 90,000 have been recalled.
Importer: L G Sourcing, Inc., of North Wilkesboro, N.C.
Manufacturer: Field Smart Lighting Co. Ltd., of China
Hazard: A short circuit in the lamps’ wiring can pose a fire hazard to consumers.
The recalled lamp has a black steel frame and a bowl-shaped light fixture. The item number 179878 is printed on the packaging and the bottom of the base of the lamp. Only lamps sold between March 2005 and October 2007 with UL listing number E246506 are included in the recall.
http://www.bailey-law.com/lawyer-attorney-1215486.html
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Protecting a jury verdict
RESPONSE TO DEFENDANT’S MOTION TO DISREGARD
AND MOTION NOV
I
Lost Earning Capacity
The disabilities, pain and limitations are covered in some detail in Plaintiff’s brief in support of judgment. Certainly Plaintiff’s doctor thought he was significantly disabled. When asked if Plaintiff would suffer “pain and some level of disability for the rest of his life”, he answered, “Absolutely. Absolutely. He will never be normal.”
Neither this opinion, nor any other evidence concerning disability was challenged factually or legally in the deposition or trial. See Tex.R.APP.P. 33.1(a); TEX.R.EVID. 103(a)(1); Pilgrim’s Pride Corp v. Smoak 134 S.W.3d 880, 896-7 (Tex.App.—Amarillo 2000, pet. denied). In fact, the Court in Pilgrim’s stated:
“Proof of loss of earning capacity is always uncertain and must be left largely to the discretion of the jury. McIver v. Gloria, 140 Tex. 566, 169 S.W. 710, 712(1943) Earning capacity has been defined as the ‘ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed.’ It does not necessarily mean actual wages, income, or other benefits received during the period inquired about. Factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long-suffered pain are legitimate considerations in determining whether a person has experienced an impairment in future earning capacity.”
Pilgram’s, 134 S.W.3 at 899 (citations omitted).
Plaintiff served with distinction in the Air Force for four years. He was weighing the option of re-enlisting or joining the Tyler Fire Department. He successfully passed the entrance exam for the Fire Department. He testified, without objection, as to what his potential take-home pay would be at these occupations and what he was capable of earning now. Texas courts have left the decision as to the nature and extent of disability to juries. In the Pilgrim’s case future earning disparity was based on past income from a welding job the plaintiff had for a few weeks and not the lower income of his most recent employment.
II
Past Medical Expenses
The language in Sec. 41.0105 of the Texas Civil Practice & Remedies Code concerning the appropriate measure of past medical expenses is ambiguous. Plaintiff provided the court at pretrial a legislative history which clearly indicates that the legislature intended for the injured party to receive damages of the actual bill for past medical and not the negotiated amount paid by a collateral source.
The Court of Appeals in Bexar County ruled in a 2-1 decision that the legislation allowed for collateral source to be considered, so it determined the lesser amount paid by the insurance company to be the proper measure of past medical damages. 2007 TXCA4 04-06-00345-05167; Mills v. Fletcher, 229 S.W.3d 765 (Tex. App.—San Antonio 2007).
The legislature attempted to cure this misinterpretation by near unanimous passage of legislation indicating that collateral source payments or discounts should not be the measure of past medical damages. Even though the governor vetoed the bill, it clearly revealed the original legislative intent.
Recently, the Court of Appeals in Amarillo ruled unanimously that it is error and a violation of the collateral source rule for the jury to consider payments or discounts created by insurance negotiations. Gore v. Faye, 2008 Tex. App. LIXIS 252 (Tex.App.—Amarillo 2008)
III
Response to Motion NOV Based on Lack of Liability Evidence
Defendant argues to the Court that the accident report that came into evidence without objection was insufficient to establish a case for liability. The most important response to this argument is there is no contest that:
1. Defendant was controlled by a stop sign.
2. Plaintiff was not controlled by a stop sign and in the roadway Defendant crossed, (therefore, had the right of way).
3. Defendant pulled in front of Plaintiff, causing the accident.
The accident report designated the Defendant as the party at fault in causing the wreck. However, the jury verdict, (supported by overwhelming evidence of photographs, witness testimony, testimony of the parties etc.), clearly stands with or without the accident report.
Defendant’s argument also fails because Robinson issues were not raised or preserved before or during trial concerning the qualifications or methodology of the investigating officer who authored the accident report. The point raised by the Defendant is not preserved. Pilgirm’s, 134 S.W. at 890.
Accident reports are routinely admitted into evidence to support liability findings. Texas Rules of Evidence 803(8); McRae v. Echols, 8 S.W.3d 797 (Tex. Civ. App.-- Waco 2000, pet. denied); Ter-Vartanyan v. R&R Freight, Inc. 111 S.W.3d 779 (Tex. App.--Dallas 2003, pet. denied). The investigating officer’s testimony was not based on scientific or specialized knowledge as contemplated in TEX.R.EVID. 702. Instead, his opinion was based on his observation of the accident scene, interviews with witnesses and his practical experience as an investigating officer. This is clearly admissible and probative. Pilgrim’s 134 S.W.3d at 893.
Respectfully Submitted,
Blake Bailey
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AND MOTION NOV
I
Lost Earning Capacity
The disabilities, pain and limitations are covered in some detail in Plaintiff’s brief in support of judgment. Certainly Plaintiff’s doctor thought he was significantly disabled. When asked if Plaintiff would suffer “pain and some level of disability for the rest of his life”, he answered, “Absolutely. Absolutely. He will never be normal.”
Neither this opinion, nor any other evidence concerning disability was challenged factually or legally in the deposition or trial. See Tex.R.APP.P. 33.1(a); TEX.R.EVID. 103(a)(1); Pilgrim’s Pride Corp v. Smoak 134 S.W.3d 880, 896-7 (Tex.App.—Amarillo 2000, pet. denied). In fact, the Court in Pilgrim’s stated:
“Proof of loss of earning capacity is always uncertain and must be left largely to the discretion of the jury. McIver v. Gloria, 140 Tex. 566, 169 S.W. 710, 712(1943) Earning capacity has been defined as the ‘ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed.’ It does not necessarily mean actual wages, income, or other benefits received during the period inquired about. Factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long-suffered pain are legitimate considerations in determining whether a person has experienced an impairment in future earning capacity.”
Pilgram’s, 134 S.W.3 at 899 (citations omitted).
Plaintiff served with distinction in the Air Force for four years. He was weighing the option of re-enlisting or joining the Tyler Fire Department. He successfully passed the entrance exam for the Fire Department. He testified, without objection, as to what his potential take-home pay would be at these occupations and what he was capable of earning now. Texas courts have left the decision as to the nature and extent of disability to juries. In the Pilgrim’s case future earning disparity was based on past income from a welding job the plaintiff had for a few weeks and not the lower income of his most recent employment.
II
Past Medical Expenses
The language in Sec. 41.0105 of the Texas Civil Practice & Remedies Code concerning the appropriate measure of past medical expenses is ambiguous. Plaintiff provided the court at pretrial a legislative history which clearly indicates that the legislature intended for the injured party to receive damages of the actual bill for past medical and not the negotiated amount paid by a collateral source.
The Court of Appeals in Bexar County ruled in a 2-1 decision that the legislation allowed for collateral source to be considered, so it determined the lesser amount paid by the insurance company to be the proper measure of past medical damages. 2007 TXCA4 04-06-00345-05167; Mills v. Fletcher, 229 S.W.3d 765 (Tex. App.—San Antonio 2007).
The legislature attempted to cure this misinterpretation by near unanimous passage of legislation indicating that collateral source payments or discounts should not be the measure of past medical damages. Even though the governor vetoed the bill, it clearly revealed the original legislative intent.
Recently, the Court of Appeals in Amarillo ruled unanimously that it is error and a violation of the collateral source rule for the jury to consider payments or discounts created by insurance negotiations. Gore v. Faye, 2008 Tex. App. LIXIS 252 (Tex.App.—Amarillo 2008)
III
Response to Motion NOV Based on Lack of Liability Evidence
Defendant argues to the Court that the accident report that came into evidence without objection was insufficient to establish a case for liability. The most important response to this argument is there is no contest that:
1. Defendant was controlled by a stop sign.
2. Plaintiff was not controlled by a stop sign and in the roadway Defendant crossed, (therefore, had the right of way).
3. Defendant pulled in front of Plaintiff, causing the accident.
The accident report designated the Defendant as the party at fault in causing the wreck. However, the jury verdict, (supported by overwhelming evidence of photographs, witness testimony, testimony of the parties etc.), clearly stands with or without the accident report.
Defendant’s argument also fails because Robinson issues were not raised or preserved before or during trial concerning the qualifications or methodology of the investigating officer who authored the accident report. The point raised by the Defendant is not preserved. Pilgirm’s, 134 S.W. at 890.
Accident reports are routinely admitted into evidence to support liability findings. Texas Rules of Evidence 803(8); McRae v. Echols, 8 S.W.3d 797 (Tex. Civ. App.-- Waco 2000, pet. denied); Ter-Vartanyan v. R&R Freight, Inc. 111 S.W.3d 779 (Tex. App.--Dallas 2003, pet. denied). The investigating officer’s testimony was not based on scientific or specialized knowledge as contemplated in TEX.R.EVID. 702. Instead, his opinion was based on his observation of the accident scene, interviews with witnesses and his practical experience as an investigating officer. This is clearly admissible and probative. Pilgrim’s 134 S.W.3d at 893.
Respectfully Submitted,
Blake Bailey
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Supreme Court problems
FOR IMMEDIATE RELEASE
January 22, 2008
Contact: Alex Winslow, 512-381-1111
Supreme Court Justice Paul Green Breaks State Ethics Law
Green Pocketed $16,761 in Improper Mileage Reimbursements;
3rd Texas Supreme Court Justice to Face Ethics Investigation
AUSTIN – A complaint was filed against Texas Supreme Court Justice Paul W. Green with the Texas Ethics Commission today by the citizens group Texas Watch. The complaint alleges that Justice Green used political contributions to illegally pay for travel to and from his home in San Antonio on 272 separate occasions, violating state ethics laws. The complaint against Green comes as two other members of the Court – David Medina and Nathan Hecht – are embroiled in ongoing criminal and ethics investigations.
Texas Watch has also notified the Public Integrity Unit of the Travis County District Attorney’s office of Justice Green’s ethics violation.
“With numerous criminal investigations, ethical lapses, and questions about the Court’s integrity and ability to be impartial, the entire Texas Supreme Court is under a cloud of scandal,” said Alex Winslow, Executive Director of Texas Watch a statewide citizens group that actively monitors the Texas Supreme Court.
According to the Bexar Appraisal District, Justice Green owns a home at 2906 Burnside, San Antonio 78209, and he appears on telephone listings for the address. Since being sworn in as a justice to the Supreme Court in 2005, Green has traveled back forth between Austin and San Antonio several times per week, racking up $16,761.16 in improper travel expenses.
This is a clear violation of the law prohibiting candidates from converting political funds to personal use (Election Code §253.035). Texas Ethics Advisory Opinion No. 133, issued by the Ethics Commission in 1993, states that “A judge may not use political contributions to pay the expenses of commuting between his home city and the city where the court sits.”
“Justice Green’s campaign contributors are paying for his personal travel in clear violation of the law and the Texas Ethics Commission should hold him accountable by vigorously enforcing the law,” said Winslow.
Justice Green is the third member of the Texas Supreme Court to face an ethics lapse in recent months. Justices David Medina and Nathan Hecht have both faced criminal and ethics inquiries:
Justice David Medina has been indicted for his alleged involvement in a house fire that destroyed his Houston-area home last summer. Just one day after the grand jury handed down the indictment, the Harris County District Attorney threw it out, raising questions about political motives on the part of the DA.
Justice Nathan Hecht is still facing a criminal investigation by the Public Integrity Unit for improperly accepting a discount on legal expenses arising out of his appeal of State Judicial Conduct admonishment in 2005. Hecht also faces ethics and judicial conduct complaints in the matter.
Justice Medina has previously received more than $50,000 for mileage in apparent violation of Ethics Opinion No. 133. In his latest campaign finance report, Medina repaid $2,000 to his campaign, leaving questions about the remaining expenditures.
Justice Hecht has numerous in-state airline expenses that are undocumented and unexplained. It is unclear if Justice Hecht was commuting to his home in Carrolton.
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January 22, 2008
Contact: Alex Winslow, 512-381-1111
Supreme Court Justice Paul Green Breaks State Ethics Law
Green Pocketed $16,761 in Improper Mileage Reimbursements;
3rd Texas Supreme Court Justice to Face Ethics Investigation
AUSTIN – A complaint was filed against Texas Supreme Court Justice Paul W. Green with the Texas Ethics Commission today by the citizens group Texas Watch. The complaint alleges that Justice Green used political contributions to illegally pay for travel to and from his home in San Antonio on 272 separate occasions, violating state ethics laws. The complaint against Green comes as two other members of the Court – David Medina and Nathan Hecht – are embroiled in ongoing criminal and ethics investigations.
Texas Watch has also notified the Public Integrity Unit of the Travis County District Attorney’s office of Justice Green’s ethics violation.
“With numerous criminal investigations, ethical lapses, and questions about the Court’s integrity and ability to be impartial, the entire Texas Supreme Court is under a cloud of scandal,” said Alex Winslow, Executive Director of Texas Watch a statewide citizens group that actively monitors the Texas Supreme Court.
According to the Bexar Appraisal District, Justice Green owns a home at 2906 Burnside, San Antonio 78209, and he appears on telephone listings for the address. Since being sworn in as a justice to the Supreme Court in 2005, Green has traveled back forth between Austin and San Antonio several times per week, racking up $16,761.16 in improper travel expenses.
This is a clear violation of the law prohibiting candidates from converting political funds to personal use (Election Code §253.035). Texas Ethics Advisory Opinion No. 133, issued by the Ethics Commission in 1993, states that “A judge may not use political contributions to pay the expenses of commuting between his home city and the city where the court sits.”
“Justice Green’s campaign contributors are paying for his personal travel in clear violation of the law and the Texas Ethics Commission should hold him accountable by vigorously enforcing the law,” said Winslow.
Justice Green is the third member of the Texas Supreme Court to face an ethics lapse in recent months. Justices David Medina and Nathan Hecht have both faced criminal and ethics inquiries:
Justice David Medina has been indicted for his alleged involvement in a house fire that destroyed his Houston-area home last summer. Just one day after the grand jury handed down the indictment, the Harris County District Attorney threw it out, raising questions about political motives on the part of the DA.
Justice Nathan Hecht is still facing a criminal investigation by the Public Integrity Unit for improperly accepting a discount on legal expenses arising out of his appeal of State Judicial Conduct admonishment in 2005. Hecht also faces ethics and judicial conduct complaints in the matter.
Justice Medina has previously received more than $50,000 for mileage in apparent violation of Ethics Opinion No. 133. In his latest campaign finance report, Medina repaid $2,000 to his campaign, leaving questions about the remaining expenditures.
Justice Hecht has numerous in-state airline expenses that are undocumented and unexplained. It is unclear if Justice Hecht was commuting to his home in Carrolton.
###
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landowner liability
The status of a person entering with permission defendant’s property can change from social guest (licensee) to invitee depending on whether the guest is performing a function for the benefit of the possessor of the land at the time of the accident. The significance of the change in guest status is that the land owner must notify the guest of unreasonable dangerous conditions of the property that he has actual or constructive knowledge if an invitee and only dangers actually known if licensee.
If the dangerous condition is the contemporaneous result of an activity, then the ordinary issue of negligence applies whether the guest is an invitee or licensee.
If a person is invited to a landowners property for social purposes, his original status is that of a licensee. However, the status of a visitor can change while on the property depending on the activities performed. Crum v. Stasney, 404 S.W.2d 72, 73-75 (Tex.Civ.App.-Eastland 1966, no writ)
Although the classic determination of the status of invitee is whether the purpose is for the mutual benefit of both host and visitor, Texas courts have expanded the definition to included purposes for the host's business or benefit. without the need for benefits inuring to the guest.
"...this Court has held that an invitee is one whose presence serves the possessor's economic interest. Buchholz, 463 S.W.2d at 453. Accordingly, when a home-owner receives an economic benefit from the presence of a person whom the homeowner has asked to help, the person is an invitee. See id.; see also Baldwin v. Gart-man, 604 So.2d 347, 350 (Ala.1992) (neighbor an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749, 752 (1953) (to be invitee, "plaintiff would have to be on defendant's property by invitation, express or implied, for some purpose of interest or advantage to defendant"); Hottmann v. Hottmann, 226 Mich. App. 171, 572 N.W.2d 259, 260--61 (1997) (brother an invitee when on property owner's premises to perform services beneficial to owner who enlisted brother's help in installing roof); Durst v. Van Gun, 8 Ohio App.3d 72, 455 N.E.2d 1319, 1321 (1982) (father an invitee when on owner's property at host's invitation for purpose in which host had a beneficial interest, i.e., installation of security light); Schlicht v. Thesing, 25 Wis.2d 436, 130 N.W.2d 763, 765--66 (1964) (grandmother an invitee when gratuitously performing babysitting services at request of homeowner)." McClure v. Rich 95 S.W. 3d 620 (Tex.Civ.App.-Dallas 2003, no pet.) Also see: Texas Power & Light v. Holder 385 S.W.2 873, 885 (Tex.Civ.App.-Tyler 1964 writ ref nre 393 S.W.2 821 (Tex 1965).
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Defending a large jury verdict
http://www.bailey-law.com/lawyer-attorney-1215482.html
Brief in Support of Judgment
Texas Law and Jurisprudence
The right to trial by jury is a fundamental right granted to all United States citizens by the Seventh Amendment of the United States Constitution[1] and to all Texas citizens by Article I, Section 15[2] and Article 5, Section 10 of the Texas Constitution.[3] The right to trial by jury was so sacred to our founding fathers that it almost prevented ratification of America’s Constitution.[4] Only after a promise to add a bill of rights, which included a right to trial by jury, was the Constitution ratified.[5]
The fundamental right to trial by jury is even more precious in Texas. In the Texas Declaration of Independence, Grievance Three complains that the Mexican Government “has failed and refused to secure, on a firm basis, the right of trial by jury that palladium of civil liberty, and the only safe guarantee for the life, liberty, and property of a citizen.”[6] To safeguard against this intrusion into a citizen’s individual rights, the Texas Constitution references the right to trial by jury in six sections, in contrast to the one reference in the United States Constitution.[7] The right to trial by jury is a sacred right in Texas jurisprudence.
Texas courts have applied this right by conducting strictly limited review of unliquidated damage awards.
Recently the Tyler Court of Appeals affirmed a damage verdict for future impairment and loss of earning capacity. It stated the following: “It is not within our power to second-guess the fact-finder unless only one inference can be drawn from the evidence. See State v. $11,014.00, 820 S.W.2d 783Plainview Motels, Inc v. Alston, 127 S.W.3d 21(Tex.App.—Tyler 2003, pet. denied)[8] In that case, the plaintiff produced evidence that the injury to his back impaired his ability to sleep and reduced his ability to run and bicycle with his kids. The Tyler Court of Appeals held this to be sufficient evidence to support the jury’s award for future physical impairment.[9], 785 (Tex.1991). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993)”.
A damage determination must not be disturbed except in the extreme circumstance of manifest injustice. Both the Trial Court and Court of Appeals can only review a claim for excessive damages using the factual sufficiency standard. Pope v. Moore, 711 S.W.2d 622 (Tex. 1986) See Flanigan v. Carswell, 159 Tex. 598, 324 S.W. 2d 835,840 (1959)
The trial court and Court of Appeals must not second guess a jury’s deliberation unless “…it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Maritime Overseas Corporation v. Richard Ellis, 971 SW.2d 402(Tex. 1998), (affirming a $12,600,000 verdict).
The mere size of a jury verdict alone is not justification for supplanting the opinion of a court over that of a jury. Columbia Med. Ctr. Of Las Colinas v. Bush, 122 S.W. 3d 835 (Tex. App—Fort Worth 2003, pet. denied) (Indicating that the jury may render a $10,000,000 award for future medical expenses based on plaintiff’s condition at the time of trial and not based on expert testimony).
The same strong language, supporting a jury damage award can be found in: Harris v. Balderas, 949 S.W.2d 42, (Tex. App.—San Antonio 1997, no writ)[10]; Loftin v. Texas Brine Corp., 720 S.W. 2d 804, 805 (Tex. 1986); Cain v. Bain, 709 S.W2d. 175, 176 (Tex.1986)[11]; Southwest Texas Coors v. Morales, 948 S.W. 948, 950 (Tex. App.—San Antonio 1997, no writ). [12]
Cases overturning jury damage awards are easily distinguishable
In Wharf Cat Inc v. Cole, 567 S.W.2d 228, (Tex App—Corpus Christi 1978, writ ref’d nre) the court overturned a jury award for future earning capacity when the plaintiff, retired for seven years, testified that he didn’t want to go to work. The court acknowledged the Gold Standard of judicial review pronounced by Justice Calvert in 38 Texas L. Rev. 361, limiting review to “No Evidence” and “Insufficient Evidence” points of error. The court specifically reaffirmed the limited review of a jury’s damage award. “In disposing of ‘remittiture’ points, an appellate court…considers only evidence that is favorable to the award.” P230 “Because personal injury damages are unliqidated…the jury has large discretion…” P233
A jury award for $1,700,000 for mental anguish, supported only by the testimony of the plaintiff, over the death of an estranged adult daughter was determined to be excessive in Hawkins v. Walker 2007 TXCA9 09-96-287. The court distinguished the absence of evidence in this case from an opinion sustaining a verdict of $10,000,000 for loss of companionship and mental anguish caused by the death of two brothers.[13]
Bentley v. Bunton, 94 S.W. 3d 561, 605-607, (Tex 2001) is a decision concerning $7,000,000 award for mental anguish related to libel of a public official from a radio personality. No associated physical harm was involved and little evidence of anguish. The call as to whether the plaintiff had a viable cause of action was close. The court worried about the dampening effect of 1st amendment rights if such an award was allowed to stand.
http://www.bailey-law.com/lawyer-attorney-1215828.html
[1] U.S. Const. Amend VII.
[2] Tex. Const. art. I, 15, (“The right of trial by jury shall remain inviolate.”)
[3] Tex. Const. art. V, 10.
[4] Joseph Story, Commentaries on the Constitution of the United States 114 (Ronald K. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833).
[5] Id. at 115.
[6] The Declaration of Independence (Repub. Tex. 1836), reprinted in H.P.N. Gammel, The Laws of Texas 1822-1897, at 1065 (Austin, Gammel Book Co. 1898).
[7] Tex. Const. art. I, 10, 15, 15a: art V, 10, 13, 17; art XVI 19 (repealed Nov. 6 2001)
[8] The Court overturned a small amount of the award related to physical impairment of plaintiff’s son. Unlike the case before this Court, there was no evidence of any kind reflecting loss of physical activities for the son.
[9] Id at 39
[10] “ In assessing personal injury damages, we note that courts should use great restraint in overturning a jury verdict on sufficiency of the evidence. Carr, 884 S.W.2d at 800. The jury necessarily has great discretion in fixing the amount of the damage award. Bundick v. Weller, 705 S.W.2d 777, 783 (Tex.App.---San Antonio 1986, no writ), citing Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.---Corpus Christi 1978, writ ref'd n.r.e.).” p 44
[11] “When reviewing a jury verdict to determine the factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).” p 176
[12]“Matters of pain and suffering, which are necessarily speculative and not subject to precise mathematical calculations, are particularly within the province of the jury to resolve and to determine appropriate amounts. Lee v. Huntsville Livestock Servs., Inc. 934 S.W.2d 158, 160 (Tex.App.---Houston [14th Dist.] 1996, no writ); Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 636 (Tex.App.---San Antonio 1989, writ denied). In determining future medical expenses, the jury is granted wide discretion, and may consider the nature of the injury, the medical care rendered in the past, and the condition of the injured party at the time of the trial. K Mart Corp. v. Rhyne, 932 S.W.2d 140, 144 (Tex.App.---Texarkana 1996, no writ); Beverly Enter. of Texas, Inc. v. Leath, 829 S.W.2d 382, 386 (Tex.App.---Waco 1992, no writ)” p 952
[13] General Chemical Corp. v. De La Lastra, 815 S.W. 750, 753-54 (Tex. App.—Corpus Christi 1991), aff’d in part, rev’d in part on other grounds, 852 S.W. 916(Tex. 1993)
Indivisible injury
INTRODUCTION
This memorandum seeks to explain whether a Plaintiff injured in an auto accident and, is in a second accident’ hurting the same area of his body, before his healthcare providers have had an opportunity to properly evaluate the injury, can have the case tried jointly with the defendants having the burden of proof of their percentage of contribution to the injury.
http://www.bailey-law.com/lawyer-attorney-1215482.html
Fire Hazard
About 185,000 Packaged Terminal Air Conditioners (PTAC) and Heat Pumps (PTHP) contain an electric heater in the units that can break, causing a fire hazard. Although it is officially listed as a product of Carrier Corp of Farmingtion, Conn., it is manufactured in Mexico.
They were sold by HVAC dealers and factory-direct sales from January 2002 through December 2006 for between $425 and $675.
Once again, it appears that American consumers are the guiney pigs to determine the safety of products branded by an American Company yet manufactured in a foreign country that does not regulate working conditions, fair pay or reasonable inspection of the safety of the products. Continue Reading...
They were sold by HVAC dealers and factory-direct sales from January 2002 through December 2006 for between $425 and $675.
Once again, it appears that American consumers are the guiney pigs to determine the safety of products branded by an American Company yet manufactured in a foreign country that does not regulate working conditions, fair pay or reasonable inspection of the safety of the products. Continue Reading...
Rule of Law
Gen. Pervez Musharraf has justified taking away the individual rights of citizens of Pakistan for the purpose of fighting terrorists. Conveniently, his actions have also crushed the voice of his political opponents and free speech necessary for a fair election. Ironically, he claims to be fighting forces that take away rights from individuals by taking away rights from individuals. To accomplish this he disbanded the Supreme Court and jailed the lawyers—much like the famous words of the Shakespearean characters who plotted to take away the rights of the people they conquered: “First, let’s kill all the lawyers.” Rule of law is the last and best line of defense for the people.
This is problematic in the U.S. as the chief law enforcement leader of the land is about to be confirmed, even though he feels the President can violate law and doesn’t know if “water boarding” is torture even though the U.S. has prosecuted this practice as a war crime for many decades.
Sometimes the speeches of Radical Muslim Clerics are tragically similar to the rhetoric of the spin-doctors for Bush. If we give up ethics and rule of law for security we will lose both.
http://www.bailey-law.com/lawyer-attorney-1215835.html
Driver license
Driver’s Licenses for Illegal Aliens
The Federal Government hasn’t provided an immigration program capable of supplying the labor our economy has needed. The net result has been 12 to 20 million illegal immigrates, sometimes encouraged by employers who enjoy the use of invisible labor without the responsibility of safe working conditions or minimal wages. There is no chance in foreseeable future that these immigrants are going to be rounded up and sent away or provided a route to citizenship. Now many think that issuing a drivers license to them should not be done because it is a privilege. I disagree. Until our Federal Government gets around to a meaningful solution, we need to register these invisible people by issuing driver’s licenses. This will allow us to see if they can pass a written (English) test; pass the driving exam; and prove possession of liability insurance. Anyone driving on our roads needs to be known and exercise financial responsibility and competence—illegal or not.
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The Federal Government hasn’t provided an immigration program capable of supplying the labor our economy has needed. The net result has been 12 to 20 million illegal immigrates, sometimes encouraged by employers who enjoy the use of invisible labor without the responsibility of safe working conditions or minimal wages. There is no chance in foreseeable future that these immigrants are going to be rounded up and sent away or provided a route to citizenship. Now many think that issuing a drivers license to them should not be done because it is a privilege. I disagree. Until our Federal Government gets around to a meaningful solution, we need to register these invisible people by issuing driver’s licenses. This will allow us to see if they can pass a written (English) test; pass the driving exam; and prove possession of liability insurance. Anyone driving on our roads needs to be known and exercise financial responsibility and competence—illegal or not.
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Dangerous drugs...whose in charge?
Drugs for our babies on the counter without perscription can kill. What kind of system is that? The FDA can't handle screening prescription drugs and accepts money from the industry that they are supposed to be regulating...now we know that medication that is supposed to be so safe you don't even need to get a doctor to prescribe can hurt or kill our babies. It turns out the only regulation that works is consumers standing up for themselves in lawsuits. Unfortunately its after the fact but at least it gives some pause to these drug providers before they spend millions of dollars in advertising to convince us that we can trust them with the health of the most vulnerable in our families.
http://www.bailey-law.com/lawyer-attorney-1215852.html
The following is an excerpt from a recent article in the Washingtion Post:
Infant Cold Medications Pulled From Drugstores
By Rob Stein
Washington Post Staff Writer
Friday, October 12, 2007; Page A01
Drugstores began clearing their shelves of over-the-counter cough and cold medicine designed for infants yesterday after leading manufacturers announced they were withdrawing the products amid rising concerns about the safety of the popular remedies.
The decision to pull 14 products, including well-known brands such as Dimetapp Decongestant Plus Cough Infant Drops, Tylenol Concentrated Infants' Drops Plus Cold and Robitussin Infant Cough DM Drops, came one week before the Food and Drug Administration plans to hold a hearing on nonprescription cough and cold medications for children.
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The hearing is part of a broad evaluation of the products the agency launched in light of doubts about their effectiveness and mounting evidence the medications can cause serious complications, including severe hallucinations and agitation, seizures, high blood pressure, and heart and breathing problems that can be fatal in rare cases.
Medicare corruption
The private drama of families seeking treatment is a daily experiece for a plaintiff's trial lawyer such as myself. Delays in paying legitimate claims can destroy a family. Insurance companies, motivated by profit, can be ruthless. Even delays of a few days can work havoc on an injured person's ability to get timely treatment or be able to keep a job. Compound this ruthless motivation for profit many times if President Bush gets his way by converting medicare to a for-profit cartel with little or no checks and balances. The following is part of a recent New York Times article that clearly demonstrates the travesty of Bush's for-profit gift for his chronies. Do not confuse this effort with free enterprise because there are no natural checks and balances of an open market.
By ROBERT PEAR
Published: October 7, 2007
WASHINGTON, Oct. 6 — Tens of thousands of Medicare recipients have been victims of deceptive sales tactics and had claims improperly denied by private insurers that run the system’s huge new drug benefit program and offer other private insurance options encouraged by the Bush administration, a review of scores of federal audits has found.
Paul Vernon/Associated Press
Michael O. Leavitt, the secretary of health and human services, says the Medicare drug benefit is saving people money.
The problems, described in 91 audit reports reviewed by The New York Times, include the improper termination of coverage for people with H.I.V. and AIDS, huge backlogs of claims and complaints, and a failure to answer telephone calls from consumers, doctors and drugstores.
Medicare officials have required insurance companies of all sizes to fix the violations by adopting “corrective action plans.” Since March, Medicare has imposed fines of more than $770,000 on 11 companies for marketing violations and failure to provide timely notice to beneficiaries about changes in costs and benefits.
The companies include three of the largest participants in the Medicare market, UnitedHealth, Humana and WellPoint.
The sad end to this story is that there will be no real solution until the sheppards and wolves are not the same
Nursing Home corruption
the following is an excerpt from a New York Times article dealing with the corruption of nursing homes:
"The Times analysis shows that, as at Habana, managers at many other nursing homes acquired by large private investors have cut expenses and staff, sometimes below minimum legal requirements.
Regulators say residents at these homes have suffered. At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services.
The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents. Those ailments include bedsores and easily preventable infections, as well as the need to be restrained. Before they were acquired by private investors, many of those homes scored at or above national averages in similar measurements."
Actually, the picture is worse. Nursing homes are sold and resold, with the same holding companies reappearing. It is common place for the facilities to go through bankruptcy's or "asset sales" to shield legal liability resulting from sloppy care. Many families or their lawyers finally give up because of the smoke screen set. up.
More profits and more abuses are on the horizon as the baby-boomers age.
http://www.bailey-law.com/lawyer-attorney-1215854.html
Predatory lending litigation
Common Cause has just issued an intriguing report suggesting a link between the severe problems in the subprime lending market and political contributions made by the lending industry to lawmakers. The following is an excerpt from the report's executive summary:
While investing nearly $210 million on Washington lobbying and campaign contributions, the mortgage lending industry for seven years successfully blocked Congress from taking action to restrict lending abuses that saddled economically vulnerable families with home mortgages they could not afford. In 2006 alone, foreclosure filings across the country were up 42 percent compared to 2005—a total of 1.2 million homes in jeopardy, or one in every 92 homes. And foreclosures continue to mount in 2007, with March foreclosure filings up 47 percent compared to the year before.
http://www.bailey-law.com/lawyer-attorney-1215840.html
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Attempted judicial coup
In the last session of the Texas Legislature our Supreme Court pushed for authority to send a judge of its choice to any jurisdiction in Texas if it determined that there was a case of "complex litigation". This action would be without the consent of the local judge. For this reason, unprecedented power would be given to judges in Austin to usurp the power of our locally elected judges in cases of importance. Once again, the powers with the money to elect state-wide supreme court judges, (the insurance industry), would increase their advantage on our local courts and the determinations of conflicts among local parties. Trial judges; the Texas Trial Lawyers Association: the Texas Association of Defense Counsel; and the American Board of Trial Advocates came out against this unusual and scary proposal. The Texas Legislature overwhelmingly rejected the legislation. Once again the power play raises its ugly head as the judges on our Supreme Court try to gain this power through the back door as reflected below:
“Based on discussions with Justice Hecht, Chip Babcock, as Chair of the Supreme Court Advisory Committee, has asked our Subcommittee to develop a proposed rule for dealing with ‘complex cases.’ As you may be aware, the Texas Legislature considered such a proposal as part of Senate Bill 1204 during the recent 80th Legislative Session, but that bill did not pass. The Court would now like to consider alternatives for enacting such a proposal as a Court rule, in the absence of a legislative mandate.”
Continue Reading...alcohol and proximate cause
Texas Courts have held that where there is no contributory negligence, prior use of alcohol is inadmissible. Nichols v. Howard Trucking Co. Inc., 839 S.W.2d 155, Tex. App. (Beaumont 1992); Dorman v. Langlinais, 592 S.W.2d 650, Tex. Civ. App. (Beaumont 1979); and Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727. The Court in Trans-State Pavers, Inc. v. Haynes, states that “[e]vidence of alcohol consumption standing alone is inadmissible unless there is further evidence of negligence or improper conduct on the part of the user.”
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Texas Supreme Court abuse of review
When I first started practicing law in 1973 the black-letter law on Supreme Court jurisdiction in considering fact issues as opposed to legal issues was a 1960 article written by Justice Robert Calvert. He probably did not realize how prophetical he was being:
"It is theoretically possible, and sometimes not far from actual fact, that five members of the Supreme Court will conclude that the evidence supporting a finding of a vital fact has no probative force, and ...in effect, that the trial judge, who overruled an instructed verdict, the twelve jurors who signed the verdict, the three justices of the court of civil appeals and four dissenting justices of the Supreme Court are not "men of reasonable minds'". No Evidence & Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).
Today, the conservative Supreme Court in Austin practices exactly what their conservative backers used to condemn--activist judicial review. Not only does it change the law to meet the desired outcome, it second guesses the factual determinations by the juries and lower courts. Because of this plaintiffs attorneys many times consider it to be tantamount to malpractice to file a case in Texas if it can legitimately be filed in ANY other state. The chances of surviving a Texas Supreme Court appeal with a large jury verdict is at best minimal.
The McDonald's case
http://www.bailey-law.com/lawyer-attorney-1215835.html
The following is a great article written by Kevin Cain for the Houston Lawyer:
And Now, The Rest Of The Story...
About The McDonald’s Coffee Lawsuit
We have probably all heard someone say, “Watch out! That coffee is hot. You could have a lawsuit on your hands.” The McDonald’s coffee lawsuit became the poster child for frivolous lawsuits. Who hasn’t taken a crack at this lawsuit for the sake of furthering their own cause? David Letterman and numerous other comedians have exploited this case as the punch-line to countless jokes.1 One of my favorite Seinfield episodes involves Cosmo Kramer suing Java World after Kramer spills a cup of café latté on himself while trying to get a seat at a movie theater.2 Kramer suffers from minor burns that are easily remedied after a single application of a balm given to Kramer by the Maestro. Kramer asks his favorite attorney, Jackie Chiles, if the fact that he tried to sneak the coffee into the theater is going to be a problem in their lawsuit. Jackie responds, “Yeah, that’s going to be a problem. It’s gonna be a problem for them. This is a clear violation of your rights as a consumer. It’s an infringement on your constitutional rights. It’s outrageous, egregious, preposterous.”3 When Kramer asks if this lawsuit has a chance, Jackie responds, “Do we have a chance? You get me one coffee drinker on that jury, you gonna walk outta there a rich man.”4 Of course, Elaine is less than supportive when she finds out about Kramer’s latest lawsuit and quips, “What I mean is, who ever heard of this anyway? Suing a company because their coffee is too hot? Coffee is supposed to be hot.”5 Obviously, Jerry and company are taking their own shots at the McDonald’s lawsuit in particular, and at frivolous lawsuits in general.
It seems that nearly everyone has an opinion about frivolous lawsuits. This author recently removed a box containing class handouts sitting on the floor in the middle of an entryway into a Bible classroom and asked the person who put the box there if he minded my moving the box because someone could accidentally get hurt. The person responded (knowing that I was an attorney) by simply snorting as he walked away, “I think everyone who files a frivolous lawsuit should be shot.” “Objection, non-responsive,” I thought, but you get the point. All too often there does not appear to be much we can do to change people’s opinions on this subject. Or is there?
“Just the facts ma’am; just the facts” -- a line made famous by Dragnet’s Sergeant Joe Friday -- may be the answer. Unfortunately, people often refuse to let the facts alter their points of view. “I have my opinion, and I won’t let truth, reality, or the facts get in the way.”6 However, if people knew the true facts about the McDonald’s lawsuit, few would have the same opinion (or misconceptions). Most people, attorneys included, know little to nothing about the infamous McDonald’s lawsuit other than the last joke they heard about it. A woman spilled some McDonald’s coffee on herself, got burned, and got millions of dollars. That is all most of us know about this woman and her legendary lawsuit. And yet, many uninformed people have very strong opinions on this case. As Paul Harvey says, “And now, the rest of the story.”
Waiver of personal responsibility
“[I]ndemnification of a party for its own negligence in the future is an extraordinary shifting of risk.” Dresser Industries, Inc., 853 S.W.2d at 508. As a result, Texas imposes two “fair notice” requirements upon all attempts at such indemnity -- the express-negligence doctrine and a conspicuousness requirement
Culminating a “trend toward more strict construction of indemnity contracts,” the express-negligence doctrine requires three things before any party can ever be indemnified against or released from the consequences of its own neglect:
• The intent of the parties must be clear.
• The intent to indemnify for the indemnitee’s own negligence must be set forth expressly “in specific terms within the four corners of the contract.”
• No part of the agreement may be left to implication or inference.
Dresser Industries, Inc., 853 S.W.2d at 508; Maxus Exploration Co. v. Moran Bros., 817 S.W.2d 50 (Tex. 1991); Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987). Implied obligations to indemnify one’s own negligence thus are invalid. Indeed, this is the essential difference between the express-negligence doctrine and the “clear and unequivocal” test that it replaces.
Contracts purporting to globally release/indemnify any and all claims categorically fail the strict express-negligence doctrine:
A. In Gulf Coast Masonry, Inc. v. Owens-Illinois, Inc. a global attempt to indemnify “any and all loss” to the indemnitee’s “property or operations” failed the express-negligence doctrine and thus indemnified nothing. 739 S.W.2d 239 (Tex.1987).
B. In Trinity Industries v. Ashland, 53 S.W.3d 852, 858 (Tex.App.—Austin 2001, pet.denied), a contract that purported to release “all claims . . . and liabilities . . . of any nature whatsoever” nonetheless was ineffective to release claims of negligent misrepresentation and fraud where the global release “mention[ed] neither negligent misrepresentation nor fraud.” 53 S.W.3d at 868.
C. Singleton v. Crown Central Petroleum Corp. 729 S.W.2d 690 (Tex.1987), the Texas Supreme Court likewise struck down an indemnity provision that did not specifically state (but distinctly implied) that there was indemnity for concurrent negligence.
Any attempted waiver of future negligent acts is an extra-ordinary shifting of risk that can be accomplished only under the most stringent rules of notice. The language must be conspicuous. Storage & Processors, Inc. v. Reyes, 134 S.W. 3d 190, 193 (Tex 2004).
See Tex. Bus. & Comm. Code Ann. Sec 1.201(b)(10) defining conspicuous:
"Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
A document attempting to waive personal responsibility must provide the “fair notice” requirement described in Dresser Industries v. Page Petroleum v. Houston Fishing, 853 S.W. 505 (Tex 1993) and can not be a contract of adhesion. In recognizing suicide as a foreseeable, recoverable consequence of negligence, the Supreme Court in Exxon Corporation v. Brecheen, 526 S.W. 2d 519 (Tex. 1975) rejected Exxon Corporation’s release defense citing “disparity of bargaining power”. Also see: Allright, Inc. v. Elledge, 515 S.W.2d 226, 267 (Tex. 1974).
FBI and insurance
According to a July 11, 2007 MSNBC report the FBI is gathering and sorting information about Americans to help search for terrorists and “fake car accident insurance claims”. How powerful has the insurance industry become that it can enlist the country’s top law enforcement agency to defend car accident claims? Why don't we have the insurance industry on the terror list for delaying or denying legitimate claims for citizens who can't afford to go to the doctor or get their car fixed?
Someone needs to tell the federal government that the crisis in the court system has to do with abuse of insurance and not the injured. http://www.bailey-law.com/lawyer-attorney-1215835.html
The buying of a court
This week the Associated Press released an article about one of our most pro-insurance justices on the Texas Supreme Court stating in part: “The state's top law firms and their attorneys donated $447,000 to help Texas Supreme Court Justice Nathan Hecht defend himself against charges that he abused his judicial office to promote Harriet Miers, his onetime girlfriend, for a seat on the U.S. Supreme Court.”
In all opinions Hecht signed issued since March, he sided with these large donors to his personal legal defense fund 89% of time. This includes ruling in favor of chemical companies and polluters with an interest in the outcome of In re Allied Chemical Corporation and represented by a law firm that contributed $30,000 to Hecht’s fund.
We are exposed to hundreds of millions of dollars in advertising by corporate and insurance interests about “frivolous lawsuits” which poison the jury pools of our nation but little is said about the blatant buying of our Texas Supreme Court by corporate and insurance interests or the law firms that represent them.
It is time that we seek the truth and not just propaganda. http://www.bailey-law.com/lawyer-attorney-1215835.html
Permissive use
ANALYSIS PERMISSIVE USE
Under Texas law, a person who deviates from the permitted use of a car will still be covered under insurance policy if the deviation is minor or immaterial. Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 73 (Tex. 2004). The factors to be considered while determining whether the deviation was minor or material are “extent of deviation and actual distance or time”… “purposes for which vehicle was given and other factors”. Id. at 72. If permission to given to a person to use a car, he may use the car for the purpose the car is given to him, and he is not excluded from insurance coverage because of a minor deviation from the purpose the car is given. Allstate Ins. Co. v. Smith, 471 S.W.2d 620, 624 (Tex. App. 1971). When a person has permission to use a vehicle and if the person uses the vehicle with minor deviations, it is still considered to have been done with permission. Coronado v. Employees Nat. Ins. Co., 577 S.W. 2d 525, 529 (Tex. App. 1979), aff’d 596 S.W.2d (Tex. 1979). If a car owner does not object to the use of the car by another person, such non-objection may be considered as implied consent to use of the car. United Services Auto. Ass’n v. Stevens, 596 S.W.2d 955, 957 (Tex. App. 1980). Whether consent is given for the use of the car may be inferred from the circumstances of the case, relationship between the parties and from the lack of objection by the owner of the car for use of the car. Tristan v. Gov’t Emp. Ins. Co., 489 S.W.2d 365, 367 (Tex. App. 1972); Royal Idem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W. 2d 343, 345 (Tex. 1966), rev’g 392 S.W.2d 359 (Tex. App. Austin 1965).
In Truck Ins. Exch. v. Ballard, 343 S.W.2d 953 (Tex. App. 1961), an individual was employed as an automobile salesman to sell new and used cars. Id. at 954. The first day he reported for work, he took a used car and while driving the car had an accident. Id. The individual was neither given permission to take the used car nor had been denied such permission. Id. The individual testified that, since he had a prospective purchaser for a used car, he took the car to determine whether it was suitable for sale and to go to his home for lunch. Id. The court noted that an employee can act within the scope of his employment, although he is at the same time accomplishing his own purpose. Id. The court held that since evidence demonstrated that he was driving the car to test it in furtherance of his employment and the fact that he joined with such purpose some of his private business, i.e., going to lunch, would be immaterial and the appellee is covered under insurance policy as employee. Id. at 956.
In United Serv. Auto. Ass’n v. Stevens, 596 S.W.2d 955 (Tex. App. 1980), the insured left the vehicles for sale, the sales manager, during the course of his employment, was expected to show the vehicles to prospective purchasers and the prospective purchasers were expected to drive the vehicles before buying. Id. at 956. The court held that since at the time of the accident the prospective purchaser’s daughter was driving the vehicle and the prospective purchaser was seated in the front seat of the vehicle, it is sufficient to support a finding that the prospective purchaser and his daughter, even though an unlicensed driver, were using the vehicle with implied consent of the insured at time of accident. Id. at 959.
In Liberty Mut. Ins. Co. v. Behringer, 419 S.W.2d 651 (Tex. App. 1967), Aiken lived in the home of Pepper’s parents. Id. at 652. Aiken was Pepper’s boyfriend, he went on dates using her car. He had driven her car by himself when he wanted to go to the store to get things for Pepper, her family and also for himself and Pepper never objected to the use of the car by Aiken. Id. 652. On the day of the accident, a kid asked Aiken to take him for a ride in the car. Id. Pepper told Aiken that he should not take the car for a drive; however, Aiken did not listen to Pepper and took the kid for a drive in the car. Id. Pepper made no effort to take the keys away from Aiken and made no further effort to stop Aiken. Id. at 653. When they went for drive Aiken meet with an accident. Id. The court held that since Aiken always uses Pepper’s car and Pepper in that instant did not make any effort to prevent Aiken from taking the car for drive, Aiken was driving the car with the permission of Pepper. Id. This case seems quite similar to the present. The dealer knew that Phillips drove the car on unapproved trips. They did nothing to stop him. Behringer, 419 S.W.2d at 653.
In Tull v. Chubb Group of Ins. Companies, 146 S.W.3d 689 (Tex. App. 2004), Shaffer was driving a pickup truck owned by her employer. Id. at 691. Shaffer during the accident was not at work for her employer but was with her boyfriend. Id. Following the accident, Shaffer was arrested and charged with driving while intoxicated. Id. The court held that Shaffer’s use of the truck while being intoxicated and after office hours, which resulted in collision, was a material deviation from her permitted use of the truck. Id. at 696. In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70 (Tex. 2004), rev’g 90 S.W.3d 810 (Tex. App. Ft. Worth 2002), the employee used the company vehicle after work to visit his friend and took her with him to a location which is 40 miles from employer’s office. Id. at 71. The court held that the employee materially deviated from the permission granted by the employer for the use of the company vehicle and was thus not covered under employer’s commercial auto liability policy. Id. at 72.
Knowledge of an agent can be imputed to the principal. Poth v. Small, Craig & Workenthin, L.L.P., 967 S.W.2d 511, 515 (Tex. App. Austin 1998) citing Wellington Oil Co. v. Maffi, 150 S.W.2d 60, 63 (Texas 1941). It therefore seems reasonable that the dealer’s employees’ knowledge of Phillips’ deviations can be imputed to the dealership. Poth, 967 S.W.2d at 515. A minor deviation such as driving the car in a different direction then the owner’s address, is immaterial for the purpose of insurance coverage. See Coronado, 577 S.W.2d at 529. Moreover, the deviation appears to be “minor” if the actual distance and the time the car was taken was not long enough to term the deviation material. Cf. Tull, 146 S.W.3d 689; Old Am. County Mut. Fire Ins. Co., 130 S.W.3d 70. If an agent drove the car for doing his job and joined with such purpose some private business it would not amount to deviation and the accident would still be covered under insurance policy. See Truck Ins. Exch. 343 S.W.2d at 956.
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Lawyer's role in product safety
Los Angeles-based consumer attorney, William A. "Bill" Daniels hosts http://billdanielsblog.typepad.com/my_weblog/2007/07/so-great-to-see.html and quotes an interesting article that points out the obvious. Who do we have to safeguard our rights against unreasonable dangerous products? Government bureaucrats? Ultimately, we must rely upon the free enterprise system supported by our open courts. As long as manufacturers and promoters of products for us and our families know that plaintiffs’ attorneys are willing to aggressively put their representations of safety to the test, we will have a chance for reasonable product safety research and development. The following is an excerpt from the article on Daniel’s site. I recommend that you click on his blog to read the rest.
By Jeffrey Pfeffer, Business 2.0 Magazine columnist
July 9 2007: 6:21 AM EDT
(Business 2.0 Magazine) -- Decades after Tylenol bottles were tampered with and Ford Pintos exploded, you'd think that product-safety panics would be nearing extinction.
No such luck. Consider just the past few months: Pet food laced with poison killed more than a dozen dogs and cats. Toothpaste shipped from China to Latin America turned out to be tainted with a potentially fatal thickening agent. And the FDA issued yet another recall for defective defibrillators, bringing the total number of heart devices that need to be replaced to nearly 200,000.
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By Jeffrey Pfeffer, Business 2.0 Magazine columnist
July 9 2007: 6:21 AM EDT
(Business 2.0 Magazine) -- Decades after Tylenol bottles were tampered with and Ford Pintos exploded, you'd think that product-safety panics would be nearing extinction.
No such luck. Consider just the past few months: Pet food laced with poison killed more than a dozen dogs and cats. Toothpaste shipped from China to Latin America turned out to be tainted with a potentially fatal thickening agent. And the FDA issued yet another recall for defective defibrillators, bringing the total number of heart devices that need to be replaced to nearly 200,000.
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International Consumer Protection
China has polluted our food system with poisons and the trail to the guilty has been covered with bureaucratic morass. Recently reports of recalled products has pointed to China as the number one culprit for unreasonably dangerous products. We need to enforce sanctions and judicial remedies against manufacturers outside our borders. The following article is a classic example of the looming problem associated with unregulated integration of the world's economy.
http://www.bailey-law.com/lawyer-attorney-1215486.html
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Perry's veto against fairness
Our good governor vetoed a bill that restored fairness and cured confusion in our court system. Texas Watch, a non-profit consumer group released the following press release, voicing its disgust. I second that sentiment.
LEGISLATION TO PROTECT POLICYHOLDERS VETOED BY GOVERNOR
HB 3281 Passed Legislature with Overwhelming Bipartisan Support
AUSTIN – Governor Rick Perry bowed to the wishes of a few special interest lobbyists and the insurance industry by vetoing HB 3281 by Rep. Phil King.
“HB 3281 would have restored fairness for responsible policyholders that are injured by reckless, irresponsible, and drunk drivers,” said Alex Winslow, Executive Director of Texas Watch, a statewide consumer advocacy organization active on insurance issues. “Instead of siding with responsible policyholders, Governor Perry bowed to the wishes of insurance companies that want to pad their bottom line.”
HB 3281 was designed to clarify current law. The current statute, adopted in 2003 as part of the sweeping so-called tort “reform” measure known as HB 4, is ambiguous and has been the subject of ongoing controversy.
In opposing HB 3281, insurance companies are asserting that reckless drivers who cause death and injury should be allowed to unfairly benefit from a responsible policyholder’s decision to carry health insurance. Insurance companies are simply seeking to reap windfall profits by requiring innocent families to subsidize the cost of their injuries.
By vetoing this legislation, Governor Perry guarantees this issue will continue to be disputed in the courts, increasing litigation expenses, padding the insurance industry’s bottom line, and making justice harder to come by for hard working Texas families.
“By vetoing this legislation, the governor is sending the message that personal responsibility is not as important as insurance industry profits,” said Winslow.
This legislation passed with overwhelming bipartisan support. Not a single dissenting vote was cast in the House of Representatives (139-0; RV 1140, 5/9/07) and just two Senators registered opposition (28-2; SJ 2238, 5/17/07).
Contingent fee
Lisa A. Rickard, President of the US Chamber Institute for Legal Reform, applauded President Bush signing an Executive Order barring all contingency fee arrangements with outside plaintiffs' lawyers and expert witnesses who work on behalf of the United States Government.
What is wrong with the US Chamber of Commerce? The federal government doesn’t enter into contingent fee contracts but should if the circumstances call for it.
Do you really think the Tobacco Industry would have ever been challenged if state governments hadn't contracted with a group of plaintiff's lawyers on a contingent fee basis? Those trial lawyers spent tens of millions out of their own pockets and thousands of hours of work and would not have been paid a dollar if they hadn't won. No one in the government—state or federal—had the guts or the budget to hire lawyers by the hour to challenge the litigation war machine of tobacco.
Why doesn’t the US Chamber worry about the unaccounted billions of dollars paid to companies supposedly building stuff after Katrina or in Iraq. Maybe we should put Halliburton on a contingent fee and not pay them until we see a positive result!
Blake Bailey
112 S Broadway
Tyler, Texas 75702
blake@bailey-law.com
903-593-7660
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What is wrong with the US Chamber of Commerce? The federal government doesn’t enter into contingent fee contracts but should if the circumstances call for it.
Do you really think the Tobacco Industry would have ever been challenged if state governments hadn't contracted with a group of plaintiff's lawyers on a contingent fee basis? Those trial lawyers spent tens of millions out of their own pockets and thousands of hours of work and would not have been paid a dollar if they hadn't won. No one in the government—state or federal—had the guts or the budget to hire lawyers by the hour to challenge the litigation war machine of tobacco.
Why doesn’t the US Chamber worry about the unaccounted billions of dollars paid to companies supposedly building stuff after Katrina or in Iraq. Maybe we should put Halliburton on a contingent fee and not pay them until we see a positive result!
Blake Bailey
112 S Broadway
Tyler, Texas 75702
blake@bailey-law.com
903-593-7660
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Censorship and right to expression
I wrote an article criticizing my hero for his extreme stand in favor of censorship. He felt that society should be best served by philosopher kings who would make the best decisions for society. Art, he felt, was a copy of the realities we perceive and the realities we perceived merely replicas of the "true forms". Plato reasoned that art was leading us away from the search for the true forms (reality) and should be banished. This censorship is a classic example of how bad things can come from good and pure ideas. As an attorney I see the same struggle with laws trying to protect society by banning expression that might later prove to be the key to better ideas. The struggle between differing rights of a society is never ending. A person should be able to express his political ideas yet parents of children on a school ground should not have to worry about the law allowing a man to express his feelings about free sex by posing naked on the sidewalk.
To this end I wrote a paper attempting to tie the Platonic ideals to Supreme Court opinions concerning pornography. Please read the paper at www.edgeofthecave.com/plato.html or go to the extended entry if you wish and give me your best criticisms. Thanks
http://www.bailey-law.com/lawyer-attorney-1215482.html
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Ethics and Amended Fed Rule 26
Ethics and Amended Federal Rule 26
The new federal rule 26(a)(1)(B), effective Dec.1, 2006, requires parties to provide, without discovery request, “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession custody, and control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.”
The commentary indicates that “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” FRCP, Comments to Amended Rule 26, subdivision (b)(2).
Although such automatic disclosure isn’t required in state courts, it is reasonable to assume that the various jurisdictions will rule that this type of discovery is appropriate if requested. It is important to put the other side of litigation under a discovery request, or at least written notice, before the electronic data disappears.
The first and foremost issue before us is whether those seeking discovery are doing a complete and adequate job representing our clients. Lazy omission in preparing for litigation can be as wrong as an intentional ethical violation, and much more prevalent. Electronic information has been the 800 pound Gorilla in the living room that most litigators have ignored. It is a different world than the one we learned while in law school or in early years of practice. Even recent graduates receive little training to match the challenges of the digital age.
Let me first confess that I am one of those attorneys who did not have the technical background to face the new challenges of today’s discovery efforts. This puts me in a unique position to write to others playing catch-up. Much of the technical information I will be departing to you is basic. Additionally I must give credit to Craig Ball, a Texas Trial Lawyer from Austin, Texas
The problem the requesting attorney will most assuredly encounter is the opposing counsel asking his non-tech company rep, “We have any electronic information?” To which he will receive and pass on to you a negative response. Your reaction should be: “Oh really?”
Did you make a reasonable search for emails? Did you conduct a good faith search in
1. Each employee’s computers, both desk top and lap top
2. The department and company server
3. The mirror server
4. Backup for the server
5. Computers of the recipients of the emails
6. Emails residing in active files
7. Emails stored with local providers
8. Network repositories
9. Remote servers
10. Copies to third-party systems
11. Removable media
12. Achieved email
13. Email stored in other formats?
The list goes on. One of the ethical questions is: When have you spent more time and money than could reasonably yield results searching each possible pocket of information? This is an especially sensitive question when is working on a contingent or fixed rate fee. An expert can save a great deal of time and money with suggestions of format and search capabilities.
Think of other electronically stored data and where it might be stored:
1. PowerPoint presentations
2. Cell phones
3. Blackberries
4. Voice mail
5. Instant messaging
6. Databases
7. Word processing documents
8. Digital cameras
9. CD
10. DVD or other video storage
11. PDF files
12. Spread sheets
The list is endless.
Once this information has been gathered, then the issue becomes: Is there data about the data being produced? The DNA of the electronic information is “metadata”. Depending upon how careful the opposing party has been to keep its electronically stored data purged of metadata and the expertise of you or your forensic data expert, there can be much more relevant information in what does not appear on the printed hard copy. For instance, a document sent back and forth among several employees of a firm could receive many edits and comments which are accepted or excluded from the final draft. The electronic version may well still have the information as to all excluded sections, amendments or comments and the identity of the authors of each. Imagine the possible ramifications.
A keystone to the electronic discovery practice is the Preservation Demand letter to the opponent. Although, in federal court, the discovery is automatic, a letter should be sent to put the parties under an obligation to not purge hidden information even before the discovery is served. This kills that twilight time when the potential party could argue that it was merely instigating a new company policy of purging its electronic files and was not on notice of a lawsuit or the need to preserve metadata. The letter should carefully list the type of electronically stored data and the data systems or archives you will be seeking to review and demand that the company guard against deletion by any of its employees or agents. In this regard, demand that routine destruction should also be stopped. Your letter should specifically refer to preservation of metadata. List specifically the categories of information and dates of inquiry you will be seeking. Imagine you are the judge at a later date trying to determine if the demand was reasonable and clear.
Please understand that this description of a preservation letter is not an inclusive check list and I recommend that you talk to an expert to develop a form letter that you can alter as you refine your discovery process and discover ways some will try to get around their obligation to respond in good faith to your notice.
There are many ethical questions that arise from this technological advance. For instance, what if a client wants his file back? He owns the file and has the absolute right to all of its contents. However, since many offices are creating virtual e-files, is he entitled to the electronic version with all its metadata? What about the emails among staff or attorneys about the client that are not part of the litigation file? If an attorney receives the e-files and discovers metadata, can it be purged after discovery has begun or after a notice letter has been sent prior to litigation? What if an attorney receiving e-discovery realizes privileged information exists in the metadata? The list of thorny questions is never-ending.
see: http://dcbalpm.wordpress.com/2007/05/21/e-discovery-rule-26a1b-preservation-letters/
