Southeast Texas Record -

AP Poll: Americans want medical malpractice reform

Thu, 19 Nov 2009 16:51:00 CST

Maas

WASHINGTON (Legal Newsline)-The majority of Americans say federal lawmakers ought to make it more difficult for allegedly aggrieved patients to sue for medical malpractice, a poll Thursday indicates.

The Associated Press poll found that 54 percent of Americans say they would like to see it more difficult to sue hospitals and doctors over alleged malpractice, while 32 percent said they are opposed to placing limits on medical malpractice litigation.

The Associated Press reported that support for limits on malpractice lawsuits cuts across party lines.

Fifty-eight percent of independents and 61 percent of Republicans said they are in favor of lawsuit limits, while 47 percent of Democrats said they favor making it harder to sue. Thirty-seven percent of Democrats said they are opposed to such measures.

The director of the nonpartisan Congressional Budget Office, Douglas Elmendorf, has said as much as $54 billion could be saved over the next 10 years if Congress enacts legal reforms including a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages and restricting the statute of limitations on malpractice claims.

Lisa Maas, executive director of Californians Allied for Patient Protection, which supports limits on medical malpractice lawsuits, said it should come as no surprise that Americans favor limiting medical malpractice lawsuits.

"Clearly, frivolous lawsuits don't result in better care, just more dollars spent on defensive medicine and unnecessary tests that drive up the cost of health care for everyone," she said.

In California, the Medical Injury Compensation Reform Act limits noneconomic damages -- pain and suffering -- to $250,000. The statute, however, allows for unlimited compensation for economic damages such as lost wages and medical costs.

The California Supreme Court in August declined to hear a challenge to statute, passed by the California Legislature in 1975 and signed into law by then-Gov. Jerry Brown, who currently serves as the state's attorney general.

In a statement, Maas said the 34-year-old MICRA law should be a model for cost-cutting as federal lawmakers work on a national health care overhaul.

"California's MICRA has saved health care consumers billions of dollars, limited the number of meritless lawsuits against health care providers, and has ensured injured patients are fairly compensated," she said. "Congress would be wise to use MICRA as a template as they craft federal health care reform."

The $1 trillion health care plan that was narrowly approved this month by the House of Representatives eschews tort reforms such as a cap on punitive damages and narrowing the statute of limitations on medical malpractice claims.

Instead, the plan would allow the U.S. Secretary of Health and Human Services to give grants to states that overhaul their medical malpractice systems so long as their reforms don't in any way limit attorneys' fees or impose caps on damages.

The Associated Press poll of 1,502 adults from Oct. 29 to Nov. 8 was conducted by Stanford University with the Robert Wood Johnson Foundation. Its margin of error is plus or minus 2.5 percentage points.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

Cornyn: Reid's proposed Senate health care bill will have negative impact

Thu, 19 Nov 2009 15:49:00 CST

Last night, Senate Majority Leader Harry Reid released his 2,074-page health care bill, which Senate Budget Committee analysis shows will cost American taxpayers $2.5 trillion when fully implemented over 10 years.

Until we have had a chance to read the full 2,074 page Reid Bill, it's impossible for Americans to fully grasp what the Majority Leader has cooked up behind closed doors. It is my hope that Sen. Reid will afford all Americans the same courtesy that he had: ample time to study the legislation and deliberate the best way to proceed.

What we do know so far, as reported by the nonpartisan Congressional Budget Office (CBO), is that this bill will have a wide, negative impact on Americans across the board � from seniors on Medicare to small business owners to future generations of Americans who will be footing the bill.

The bill will increase taxes on all Americans by nearly half a trillion dollars and breaks the president's pledge not to raise taxes on working families earning less than $250,000 �- at a time that unemployment is at a 26-year high.

While CBO has not been given time to analyze the Reid bill's impact on premiums, every other independent analysis to date has found that Reid's new mandates and taxes will increase health care premiums on American families. The Reid bill increases taxpayer spending and liability for health care over the next 10 years �- instead of reforming our already insolvent entitlement programs.

It will gut the already insolvent Medicare program by $464.6 billion, hurting access to care for seniors. It includes a government-run public option that will, according to CBO, have premiums higher than private plans and cause millions of Americans to lose the coverage they currently have.

The largest expansion of Medicaid since it was created means the Medicaid program will be the only coverage option for 60 million Americans. It will also impose $28 billion in punitive taxes on employers who do not comply with Washington's new job-killing mandates.

These initial findings are troubling, to say the least. My staff and I will be pouring over the 2,074 pages, assuming we are given the time to do so. You can access the full text of the Reid bill from my Web site: http://cornyn.senate.gov/public/?p=HealthCareReformHQ.

It is essential that Congress take the time get health care reform right. If the president and majority leader are more interested in getting health care reform right for all 300 million Americans than they are in putting a political feather in their cap for the midterm elections, this shouldn't be an issue.

Sen. John Cornyn wants to keep Texans informed and engaged as the debate on health care reform moves forward in Washington. Please visit www.cornyn.senate.gov and www.facebook.com/Sen.JohnCornyn to share your ideas for how best to reform our health care system and to recommend others who might want to join the dialogue by receiving these Health Care Reform Alerts.

Texas AG defends state medical malpractice reforms

Thu, 19 Nov 2009 11:29:00 CST

AUSTIN(Legal Newsline)-The Texas attorney general has urged the state Supreme Court to leave intact medical malpractice reforms.

The Texas Legislature in 2003 imposed a strict 10-year statute of repose on medical malpractice claims.

The law -- House Bill 4 -- was aimed at helping to control skyrocketing medical malpractice insurance premiums, which were blamed for doctors leaving the Lone Star State at the time.

In Republican Attorney General Greg Abbott's brief to the Supreme Court, state Solicitor General James Ho noted law was enacted because "the Legislature concluded that indeterminate and unpredictable liability regimes drive up the cost of health care and reduce access to physicians."

The attorney general's friend-of-the-court brief also argues that Texas's 10-year statute of repose does not interfere with an individual's right to file a medical malpractice lawsuit.

"The Legislature struck a fair balance between the rights of plaintiffs to obtain redress for injuries and the rights of physicians and other health care providers from having to litigate stale claims," the AG's amicus brief said. "The balance struck by the Legislature was reasonable -- and constitutional."

Abbott's brief was filed in the case of Methodist Healthcare System of San Antonio v. Rankin.

The case stems from a 2006 lawsuit Emmalene Rankin filed against two physicians and the Methodist Healthcare System of San Antonio 11 years after a surgical sponge was allegedly left behind in her body after her hysterectomy in 1995.

The sponge was found lodged in Rankin's abdomen more than a decade after her hysterectomy at Southwest Texas Methodist Hospital in San Antonio.

At trial, Rankin's lawyers said the state's statute of repose violated the Texas Constitution's Open Courts provision that provides that "all courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have remedy by due course of law."

The Bexar County district court found that Rankin's lawsuit exceeded the statute of limitations, but the decision was reversed last year by the Fourth Court of Appeals, which also struck down the statute of repose under the Open Courts provision.

"The Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit," the appeals court ruled.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

Popstars, team named in Texas infringement suit over use of video screens

Thu, 19 Nov 2009 10:52:00 CST

What do Justin Timberlake, Britney Spears, the Pussycat Dolls and the Los Angeles Lakers all have in common?

They all use giant video screens during their performances and have recently been named in a patent infringement case for doing so.

Large Audience Display filed the patent infringement suit Nov. 11 in the the Marshall Division of the Eastern District of Texas, alleging the well known group of entertainers is infringing U.S. patent No. 6,669,346 B2.

According to the suit, Mr. Timberlake has put on concerts "using a large-audience display screen that infringes upon certain claims in the Patent."

"This infringing activity occurred, without limitation, during the 'FutureSex/LoveShow Tour' which was performed in the U.S. ... and tickets to certain of these performances were intentionally advertised and sold to concert attendees residing in the Eastern District of Texas, and which was also intentionally videorecorded and then presented for broadcast via HBO and sale via DVD and other media."

Allegedly, the Lakers are also guilty of putting on "sporting events using a large-audience display screen."

Concerts performed by Spears and the Pussy Cat Dolls also allegedly use the plaintiff's patented large-audience display screen.

"Defendants have put on and/or presented and continue to put on and/or present their infringing performances or sporting events in a wide range of locations throughout the United States and the world, including Texas and Western Louisiana," the suit states. "The intentionally infringing activities of Defendants are and have been without authorization from Plaintiff."

The plaintiff is suing for reasonable royalties and exemplary damages.

"Plaintiff has suffered, is suffering, and will continue to suffer irreparable harm and injury as a result of Defendants' aforesaid unlawful and intentional activities. Defendants will, unless restrained and enjoined, continue to act in the unlawful manner complained of herein, all to Plaintiff's irreparable damage," the suit states.

The company is represented by attorney Michael G. Burk.

The case has been assigned to U.S. District Judge T. John Ward and referred to Magistrate Judge Charles Everingham for pretrial proceedings.

Case No. 2:09-cv-00356-TJW-CE

Recent real estate foreclosures filed in Jefferson County

Thu, 19 Nov 2009 09:51:00 CST

Beneficial Texas has filed an application to foreclose on the property of Julie Broussard, located at 312 Shannon Lane, Nederland, Texas 77627.

The application was filed Nov. 12 in Jefferson County District Court.

The amount owing on the loan is $144,083.10.

The lender is represented by the Hughes, Watters & Askanase law firm.

Case No. E185-319

CitiFinancial has filed an application to foreclose on the property of Walter Joseph Jr., located at 3001 East 6th Street, Port Arthur, Texas 77642.

The application was filed Nov. 12 in Jefferson County District Court.

The amount owing on the loan is $16,804.24.

The lender is represented by the Hughes, Watters & Askanase law firm.

Case No. B185-320

This Just In: Recent civil suits filed in Jefferson County District Courts

Thu, 19 Nov 2009 09:47:00 CST

Nov. 6

Clarence Polk et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Milton Shuffield

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

D185-300

Willie Lyons vs. National Lloyds Insurance Co.

PA - Steve Mostyn, J - Bob Wortham

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

A185-301

Nov. 9

Pati Cure vs. Texas Windstorm Insurance Association

PA - Gilbert Adams III, J - Donald Floyd

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

E185-305

Nov. 10

William Pinson et al vs. State Farm Lloyds

PA - Steve Mostyn, J - Gary Sanderson

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

B185-308

Ryan Lewis vs. Scot Shaffer et al

PA - Brandon Monk, J - Bob Wortham

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

A185-310

Alfredo Hernandez et al vs. Fire Insurance Exchange

PA - Hart Green, J - Milton Shuffield

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

D185-311

John Steele vs. Texas Windstorm Insurance Association

PA - Hart Green, J - Bob Wortham

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

A185-312

Roland Boudreaux vs. Texas Windstorm Insurance Association

PA - Hart Green, J - Donald Floyd

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

E185-313

Nov. 12

Harvey Warren III vs. Margaret Thibodeaux

PA - Don Bush, J - Gary Sanderson

On Sept. 5, 2008, the defendant struck the defendant at the intersection at Gladys Street and Thomas Boulevard.

The plaintiff alleges the defendant negligently failed to keep a proper lookout and is suing for past and future mental anguish, pain, impairment, lost wages and medical expenses, plus attorney's fees.

B185-316

Leslie Smith vs. Wal-Mart Stores Texas

PA - Ryan White, J - Gary Sanderson

On Dec. 14, 2007, the plaintiff was shopping at the defendant's store when she slipped on a wet substance.

The plaintiff alleges the defendant negligently failed to maintain its premises and is suing for past and future mental anguish, pain, impairment, lost wages and medical expenses, plus attorney's fees.

B185-318

Robert McLane vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Milton Shuffield

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

D185-321

Ronald Sanders et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Donald Floyd

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

E185-322

Cornell Price et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Bob Wortham

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

A185-323

Sharon Hill vs, Beaumont Independant School District

PA - Michael McGown, J - Bob Wortham

The plaintiff is alleging her 4-year-old grandson was left on the bus unattended for nearly four hours.

She is suing for exemplary damages.

A185-324

Nov. 13

Carlton Johnson vs. Felonda Thomas

PA - David LaRue, J - Bob Wortham

On Oct. 20, 2008, the plaintiff was traveling north on 6th Street at Calder Avenue when the defendant failed to yield the right-of-way and struck his vehicle.

The plaintiff alleges the defendant negligently failed to keep a proper lookout and is suing for past and future mental anguish, pain, impairment, lost wages and medical expenses, plus attorney's fees.

A185-332

Bill Taylor et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Bob Wortham

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

A185-334

Steven Metoyer et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Milton Shuffield

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

D185-336

Phillip Jones et al vs. Texas Windstorm Insurance Association

PA - Steve Mostyn, J - Milton Shuffield

The plaintiff is suing the insurance company and several of its agents for denying at least a portion of the plaintiff's Hurricane Ike policy claim.

The plaintiff alleges the defendant is guilty of several Texas Insurance Code violations and of violating the DTPA.

The plaintiff is suing for actual and consequential damages, plus attorney's fees.

D185-337

Toyota wants Texas, California cases combined for discovery

Thu, 19 Nov 2009 08:58:00 CST

Biller

MARSHALL � Citing concerns over public disclosure of confidential business information, Toyota Motor Sales is attempting to transfer
pending Texas cases to California in an effort to coordinate pretrial proceedings.

But the player at the center of the allegations, former Toyota in-house attorney Dimitrios Biller, is fighting to prevent Toyota's move to combine the cases.

Biller argues that "Toyota's Motion is a clear attempt to avoid litigating claims properly filed in the District Court for the Eastern District of Texas, Marshall Division, and is not based on the convenience of the parties and witnesses, or the promotion of the just and efficient conduct of the four cases."

Toyota argues that the cases are "factually-identical" and that "centralization will promote the just and efficient conduct of the actions."

Toyota believes that centralizing the cases will promote judicial efficiency and are especially necessary to prevent the disclosure of attorney-client privileged information.

In the motion Toyota argues, "inconsistent rulings concerning that issue would not be merely unseemingly or inefficient; rather, because the privilege is a privilege against disclosure, if the privilege is vitiated in one action, it cannot be protected or restored in other actions."

In a wrongful termination lawsuit filed in the Central District of California in early 2009, Biller alleges that the Toyota has continually and continues to conspire to "unlawfully" withhold and conceal evidence and obstruct justice.

Biller claims Toyota made every effort to "stop, prevent, and delay" his attempts and efforts to "search, collect, preserve, review, and produce" evidence in product liability litigations. As an example, Biller contends that Toyota failed to disclose crash test data, including a report involving roof-crush data, to the National Highway Traffic Safety Administration.

The lawsuit also asserts that Biller attempted to tell his supervisors that Toyota was in violation of law by withholding the requested evidence, but his efforts failed and some evidence destroyed.

As a result of his efforts to comply with the legal and ethical obligations to turn over "clearly discoverable material," Biller states that he was "subjected to intimidation, harassment, and an uncertain future, both at TMS, and elsewhere."

Biller states that he was forced to resign and sign a severance agreement and now has compromised mental and physical condition due to harassment, intimidation, and retaliation by Toyota.

After taking a medical leave of absence for psychiatric problems including a mental breakdown and depression, Biller left the company and accepted a $3.7 million severance package in 2007. However, Biller now states his "forced resignation" was part of a "calculated conspiracy to prevent the disclosure of damaging evidence."

In court documents, Toyota referred to Biller as a disgruntled employee attempting to retaliate for losing his job.

Shortly after the former lawyer's allegations became public, several lawsuits were filed attempting to reopen previous product liability cases.

After Biller's allegations that Toyota obstructed justice Dallas plaintiffs' attorney E. Todd Tracy, who specializes in motor vehicle product liability litigations, began reopening his former cases against Toyota.

Describing the "earth shattering news," Tracy states that "Plaintiffs have now learned that Defendants have been engaged in a pattern of discovery abuse that is tailor made for a Hollywood movie. Defendants conduct is more like a horror movie script to the victims of Toyota's products."

He claims his clients settled their cases believing in good faith that Toyota had not destroyed or concealed any documents.

The plaintiffs' attorney maintains that by attempting to reopen settled cases, he is seeking to "end the conspiracy of illegal and obstructive discovery practices by the various defendants."

"The days of Defendants destroying, concealing and hiding discovery must be abolished. This type of conduct by Defendants is illegal, immoral, and unprofessional and deprives litigations of equal access," Tracy argues.

The lawsuit wants the same information that Toyota has at its disposal so that the plaintiffs' "constitutionally guaranteed right to trial can be achieved." The plaintiffs argue that Toyota knows its conduct violates federal and states laws and rules of civil procedure, but has conspired to prevent the truth from being discovered to prevent the plaintiffs from making informed decisions.

Attempting to consolidate the pre-trial proceedings with identical litigations pending in the Northern District of Texas and a California class action, Toyota filed the motion with the Judicial Panel on Multidistrict litigation in October.

Toyota has filed motions to prevent its former attorney from
disclosures, arguing he is in violation of the attorney-client privilege and violating confidentiality agreements.

"We are disappointed that Mr. Biller has elected to file this lawsuit in an attempt to avoid what we believe are his obligations as an attorney formerly employed by Toyota," the company states.

"In our view, Mr. Biller has repeatedly breached his ethical and
professional obligations, both as an attorney and in his commitments
to us, by violating attorney-client privilege in defiance of a court
restraining order that Toyota obtained against him."

Biller claims his initial litigation did not "spawn" other cases but that the original Biller litigation alerted plaintiffs to "past improprieties committed by Toyota."

"Toyota simply ignores the glaring factual differences between Biller/TMS and the cases it seeks to consolidate through the Motion, as well as the interests and convenience of the parties," Biller argues in its reply.

Also arguing against the combining of pretrial proceedings, Biller states that many of the documents supporting his allegations are
located in the Marshall. In October, Biller hand-delivered four boxes of allegedly "explosive" documents to U.S. District Judge T. John Ward and are being held as evidence in the reopened case of Raul Lopez and Diana Lopez, individually and as next friend of A.L., a minor.

The Lopez plaintiffs requested a protective order, declaring that their reasoning is simple, "Plaintiffs allege via Mr. Biller that Toyota has destroyed these documents rather than disclose them in litigation."

Recently Judge Ward granted the protective order.

The four boxes of documents will be date stamped and watermarked. The company holding the documents will create a privilege log and will track those allowed to view the documents, Toyota's in-house counsel and counsel of record. When viewing the records, the individuals must be escorted by and are not allowed any form of recording device.

U.S. District Judge T. John Ward is presiding over the litigations pending in the Marshall district.

Case No 2:09cv00292

Arkansas man claims diabetes drug caused heart attack

Thu, 19 Nov 2009 08:55:00 CST

TEXARKANA, Ark. � An Arkansas man with diabetes but an otherwise clean bill of health claims his diabetes medication Avandia caused him to suffer a heart attack.

Kenneth L. Bryan, 58, filed a personal injury lawsuit against GlaxosmithKline on Nov. 18 in the Texarkana Division of the Western District of Arkansas.

Bryan states that around the same time he was given a clean bill of health in December 2003, he began taking the prescription drug Avandia.

Two years later, in December 2005, Bryan had a heart attack that he believes was related to the drug. Since his heart attack, he has been taken off of Avandia, endured four bi-pass surgeries, multiple angioplasties and stints.

The plaintiff alleges that the drug was not fit for the purpose for which it was intended and that it was in a defective condition which rendered it unreasonably dangerous.

Bryan argues that "Glaxo's known risk of potential life threatening side effects caused by Avandia created an inherently dangerous risk with the use of Avandia."

The plaintiff believes the defendant breached the implied warranty of fitness and directly caused his injuries.

The plaintiff is seeking more than $75,000 in damages for medical expenses, loss of earnings, loss of earning capacity, pain and suffering, post-judgment interest and attorney's fees.

Texarkana attorney Fredye Long Alford of the Alford Law Firm is representing the plaintiff.

U.S. District Judge Harry F. Barnes will preside over litigation.

Jury trial requested.

Case No 09CV4125

Texas SC blocks return of adjuster's notes in insurance case involving power plant

Thu, 19 Nov 2009 08:48:00 CST

Texas Supreme Court

AUSTIN � Insurers who inadvertently surrendered an adjuster's notes in a Jefferson County lawsuit over a project in the Dominican Republic haven't recovered the notes.

The Supreme Court of Texas on Nov. 13 temporarily blocked an order from Ninth District appeals judges in Beaumont, who would have returned the notes to the insurers.

Next, the Supreme Court must decide whether the appeals court or District Judge Bob Wortham called the case correctly.

Wortham denied a motion from 14 British insurers to recover notes that Smith/Enron Cogeneration and Raytheon Ebasco Overseas obtained in routine discovery.

The Ninth District reversed him in August, adding that plaintiffs should have returned the notes while they awaited Wortham's decision.

Smith/Enron Cogeneration and Raytheon Ebasco Overseas built an electrical generation plant in the Dominican province of Puerto Plata.

In 1998, they told their insurance agent in Dallas that the plant suffered severe corrosion damage. They wrote that they would pursue a claim against the insurers.

Kent Westmoreland of Houston, already representing the insurers in other suits over the plant, answered that his clients reserved the right to deny coverage.

Brian Goetsch of Steege Kingston adjusting firm, already assisting Westmoreland in other cases, reviewed the claim with him and Karen Milholin of his firm.

The review sessions continued for three years, and Goetsch filled 57 pages with notes.

After the plant builders sued the insurers, Clifton Hall of Westmoreland's firm asked Steege Kingston for a copy of its file.

He reviewed the file and produced portions of it in discovery, without any dire result.

Later, the plant builders served a subpoena on Steege Kingston for the file.

Steege Kingston delivered the file to the court on Oct. 11, 2006, and Hall received a copy three weeks later.

Hall didn't review it, resting on assurances that it matched the one in his possession.

Four months later, on the eve of a deposition, Milholin discovered that the file included Goetsch's notes.

At the deposition she asserted privilege and asked plaintiffs to return the notes.

She didn't get them, and her clients filed a motion to compel their return. They cited Rule 193.3(d) of civil procedure, allowing parties to retrieve privileged documents in case of inadvertent production.

The builders argued that privilege didn't apply to early notes because when Goetsch took them, litigation had not begun and the insurers hadn't anticipated litigation.

They argued that an exception to privilege applied to later notes due to substantial need for the notes and undue hardship in obtaining them any other way.

They argued that the insurers should have objected within 10 days of receiving the file, rather than waiting until the deposition.

The arguments of the builders persuaded Wortham, who denied the motion last year. He didn't adopt findings or conclusions, and neither side asked him to do so.

On appeal, Justices David Gaultney, Charles Kreger and Hollis Horton directed him to require prompt return of the notes.

"While evidence that documents are sent creates an inference that the documents were reviewed around that time, that inference vanishes when opposing evidence is introduced to show that the document was not reviewed," they wrote in an unsigned opinion.

"We are not persuaded that the substantial need and undue hardship exception allows the policyholders to retain Goetsch's notes," they wrote.

They wrote that "the better practice is for parties to return documents asserted to be within the ambit of Rule 193.3(d) pending the ruling of the trial court, and we believe that policyholders should have done so here."

Rather than return the notes, the builders petitioned the Supreme Court.

Kent Adams, Michael Choyke, Thomas Wright, Bradley Snead and Marie Yeates represent the builders.

Westmoreland, Milholin, Hall, James Old Jr. and Kelli Smith represent the insurers.

Men claim dietary supplement caused liver problems, sue maker and distributor

Thu, 19 Nov 2009 08:18:00 CST

GALVESTON � A Houston law firm has filed a pair of suits against a Virginia dietary supplement manufacturer on behalf of two men who complained of liver problems as a result of taking a steroid.

The Gibson Law Firm alleges Jesse Woods of Baytown and Heath Stevison of Lake Charles, La., suffered liver failure in July after the plaintiffs took M-Drol, a capsule made by defendant Competitive Edge Labs.

"The defect or defects made this product unreasonably dangerous for its intended use," court documents say.

"Such defect or defects were the proximate cause of the plaintiffs' injuries and damages."

The complaints were filed Nov. 17 in Galveston County District Court.

They show Woods and Stevison bought the product in question at TF Supplements in Galveston, explaining that M-Drol was a steroid precursor which carried a methylated compound reportedly known to cause serious liver damage.

Competitive Edge Labs marketed the pill as a dietary supplement, according to the original petitions in both suits.

In late July, the FDA issued a warning stating that consumers should stop taking steroids as dietary supplements, ordering that anyone who took the steroids must seek immediate medical attention if they experience liver trouble.

The plaintiffs say they started to show symptoms of liver failure just weeks after they popped their first M-Drol.

Woods claims P-Plex, another steroid-based pill produced by Competitive Edge Labs, also contributed to his illness.

Both men were hospitalized for long periods of time and diagnosed with severe and permanent liver damage, their suits state.

The plaintiffs say they were put on strictly limited diets and could not work because of the supplements' devastating toll.

They also insist the likelihood of undergoing liver transplants.

Woods' spouse, a co-plaintiff, says she suffered a loss of consortium.

TF Supplements is also a defendant in the case.

Both the shop and Competitive Edge Labs are accused of negligence, negligent representation, breach of implied warranty, and products liability.

The plaintiffs seek unspecified monetary damages and a jury trial.

Galveston County 122nd District Court Judge John Ellisor is presiding over the litigation.

Case Nos. CV092115 and CV092118