Southeast Texas Record -

Another TARP: Trial Attorney Relief Program

Sat, 07 Nov 2009 07:10:00 CST

The Troubled Asset Relief Program (TARP) was touted as a solution to the subprime mortgage crisis and a way to stabilize our economy.

However, for some it soon devolved into a slush fund, and some of the "troubled assets" receiving "relief" were revealed to be cronies of the congressmen dishing out the dough.

The health care reform bill now being ramrodded through Congress is another TARP: Trial Attorney Relief Program.

It, too, is being touted as a solution to an alleged crisis. Once again, however, among the beneficiaries are not the American people, but more cronies of the congressmen writing the rules.

Despite abundant evidence that frivolous medical malpractice suits contribute mightily to the rising cost of health care, the bill touted by U.S. House Speaker Nancy Pelosi does nothing to deter such suits. In fact, it seeks to insulate them from reform.

Section 2531 of the 1,990-page bill authorizes incentive payments to states enacting "an alternative medical liability law" to prevent disputes or facilitate their "fair resolution" � provided that law does not "limit attorneys' fees or impose caps on damages."

In other words, the one measure most likely to get rising health care costs under control is strictly prohibited.

This is not idle speculation. Here in Texas, as well as in Missouri, Mississippi and other states, medical tort reform has been enacted and the people have reaped its benefits. By limiting attorneys' fees and capping damage awards, these states have reduced the need for doctors to practice defensive medicine and carry expensive insurance policies. The number of doctors serving the citizens of these states has increased, and the cost of the medical care they provide has gone down.

It's an amazing success story. Instead of encouraging other states to follow suit and reap the same benefits, however, the Pelosi bill does just the opposite.

Pelosi's Trial Attorney Relief Program increases the power of government, hamstrings the free market, restricts the choices of American consumers and perpetuates the enrichment of trial attorneys at the expense of the public. It's a consumer trap, not a TARP, and it needs to be discarded.

Latest hurricane-related insurance suits filed in Jefferson County

Thu, 05 Nov 2009 16:42:00 CST

A total of six new lawsuits against insurance companies over hurricane damage claims were filed in Jefferson County District Court, Oct. 26-30, 2009.

The following complaints were filed:

Joseph and Julia Crow of 6860 Guess Road in Beaumont allege Texas Windstorm Insurance Association denied their claim for roof, water, wind, foundation, structural and contents damages caused to their home after Hurricane Ike struck on Sept. 13, 2008. TWIA denied the claim after its Vice President of Claims Reggie Warren assigned adjusters Paula Smith, J. Bob Vinson and Ray Lang to investigate. The Crows will be represented by Gregory F. Cox of The Mostyn Law Firm in Beaumont. Jefferson County District Court case number: B185-229.

June Jennings of 1908 North 21st St. in Nederland alleges Texas Windstorm Insurance Association improperly paid her claim for dwelling and contents damages caused to her home after Hurricane Ike struck on Sept. 13, 2008. Jennings will be represented by Jason M. Byrd, Wyatt D. Snider and Justin G. Sanderson of Snider and Byrd in Beaumont. Jefferson County District Court case number: D185-242.

Freddie Keal of 3301 East 18th St. in Port Arthur alleges Texas Windstorm Insurance Association denied his claim for damages to his property caused after Hurricane Ike struck on Sept. 13, 2008. Keal will be represented by Clint Brasher and Joe Muckleroy of Beaumont. Jefferson County District Court case number: A185-233.

Jimmie and Tiffany Lofton of 5028 Sixth St. in Port Arthur allege Texas Windstorm Insurance Association denied their claim for roof, wind, water, structural and contents damages caused to their home after Hurricane Ike struck on Sept. 13, 2008. TWIA denied the claim after its Vice President of Claims Reggie Warren assigned Allied American Adjusting Company and adjuster Cecil Riddle to investigate. The Loftons will be represented by Gregory F. Cox of The Mostyn Law Firm in Beaumont. Jefferson County District Court case number: D185-239.

Nola Prudhome of 16933 Highway 90 in Beaumont alleges Texas Windstorm Insurance Association has failed to fully pay her for dwelling and contents damages caused to her home after Hurricane Ike struck on Sept. 13, 2008. TWIA paid Prudhome $37,281.67 by Dec. 14, 2008, which she claims was not enough to reimburse her for damages. Prudhome will be represented by Rocky Lawdermilk of Beaumont. Jefferson County District Court case number: E185-237.

Betty Schluntz of 5345 Gail Drive in Beaumont alleges Voyager Indemnity Insurance Company and Assurant Specialty Property denied her claim for roof, water, wind, contents, foundation and structural damages caused after Hurricane Ike struck on Sept. 13, 2008. Voyager and Assurant denied the claim after they assigned Southwest Adjusters of Texas and adjusters Barbara Rose, Darrell Edwards and Jonathan Moretsky to investigate. Schluntz will be represented by Michael R. Ramsey of The Mostyn Law Firm in Beaumont and by David P. Wilson and Matthew C. Matheny of Provost Umphrey Law Firm in Beaumont. Jefferson County District Court case number: A185-240.

Man blames rice mill after he falls off truck full of hulls

Thu, 05 Nov 2009 14:49:00 CST

A man claims he broke both heels and a wrist after falling off the top of a trailer while attempting to secure a load.

Todd Buchholtz filed a lawsuit Oct. 30 in Jefferson County District Court against Beaumont Rice Mills Inc. and E.W. Belcher Trucking Inc.

Buchholtz claim he was working as a truck driver for E.W. Belcher, and went to Beaumont Rice Mills to pick up a load of rice hulls as part of his job duties on April 29, 2008.

Beaumont Rice Mills employees used an open shoot over the trailer to load rice hulls. After the rice hulls had settled, additional hulls were piled on top to fill the trailer as much as possible, according to the complaint.

Once the trailer was stuffed, Buchholtz was required to climb to the top of the rig to secure the load by placing a tarp over it, the suit states.

However, there were no walkways along the side of the trailer, so Buchholtz was required to walk along the edge of the trailer to find the rope and tarp that were buried on the side of the trailer, the complaint says.

"When he pulled the rope from under the hulls, he fell of the side of the trailer onto the ground with part of the rope," the suit states. "He fell from the height of several feet, landing on both feet, and then falling on his left wrist."

Immediately Buchholtz claims he was taken to the emergency room where he learned he had fractured both heels and his left wrist.

Because of his fall, Buchholtz claims he was required to undergo surgery, incurred medical costs, experienced physical pain, suffering, physical impairment and disfigurement and lost his earnings. In addition, he lost household services, suffered mental anguish and will incur future medical monitoring costs, according to the complaint.

In his complaint, Buchholtz alleges negligence against both defendants and a premises liability claim against Beaumont Rice Hill.

Buchholtz is seeking unspecified damages, interest, costs and other relief to which he may be entitled.

Joan M. Durkin and Kathryn E. Morrow of Durkin Law Offices in Hurst will be representing him.

The case has been assigned to Judge Bob Wortham, 58th District Court.

Jefferson County District Court case number: A185-235.

Pennsylvania resident sues foreign companies in Texas over asbestos exposure

Thu, 05 Nov 2009 14:31:00 CST

TYLER � While working in Texas, Pennsylvania resident Robert Plummer alleges he was exposed to asbestos and asbestos fibers which have caused injuries to his respiratory system.

He states that he is now forced to "live with the fear, distress, and mental anguish caused by the knowledge of living with the terminal disease of mesothelioma."

Claiming he was exposed to defective and unreasonably dangerous products, Plummer and his wife, Nadine, filed a suit against T & N Limited and TAF International Limited by their agent, The Federal-Mogul Asbestos Personal Injury Trust. The federal suit was filed Nov. 2 in the Tyler Division of the Eastern District of Texas.

The Federal-Mogul Asbestos Personal Injury Trust is a Delaware statutory trust, established under the terms of the Fourth Amended Joint Plan of Reorganization for Federal-Mogul Corp. and various affiliates on Dec. 27, 2007.

Defendant T&N Limited is a subsidiary of Federal-Mogul Corporation and is a foreign corporation formerly known as T&N PLC, Turner & Newell PLC and Turner &
Newell Limited.

Defendant TAF International Limited is a United Kingdom subsidiary of T&N and is a foreign corporation formerly known as Turners Asbestos Fibres Limited and Raw Asbestos
Distributors Limited.

Plummer states that while working for defendants, he inhaled dangerous fibers that contained asbestos which were produced by the defendants.

The plaintiff states that he is now sick with mesothelioma, an "irreversible disease that is unique to exposure of asbestos."

The lawsuit alleges that the defendants failed to warn of the dangers associated with their asbestos products and should have taken measures to prevent or minimize the plaintiff's exposure.

Plummer believes the defendants consorted with other representatives of the asbestos industry to cover up and minimize the known dangers associated with asbestos containing products.

"Plaintiffs alleges that such conduct amounted to fraud and was proximate cause of Plaintiff's injuries," the complaint states.

Further, the plaintiff claims the defendants were negligent for failing to keep up with the latest literature about the dangerous propensities of asbestos fibers.

The case is considered a "tag-along" case which will be transferred to the multi-district litigation pending in the federal court in the Philadelphia Division of the Eastern District of Pennsylvania

The plaintiffs are seeking damages for extreme physical and mental pain, medical expenses, mental anguish, loss of consortium, loss of household services, pre and post judgment interest.

Arguing the defendants' conduct was intentional, willful and malicious and was a conscious indifference to the rights or welfare of people, the plaintiffs are asking for punitive damages.

The plaintiffs are represented by South Carolina attorney Badge Humphries, Joseph Rice, John A Baden IV and Brian Bevon of the law firm Motley Rice LLC.

U.S. District Judge Leonard Davis will preside over the litigation.

Case No 6:09cv00497

Medical group sues doctor to recover practice set up costs

Thu, 05 Nov 2009 14:28:00 CST

A Beaumont physicians group has filed suit against a local doctor, alleging he failed to reimburse the group for money it spent helping him establish a practice.

Diagnostic Group of Southeast Texas claims Dr. Kenneth D. Wilgers signed an agreement on July 1, 2007, in which Diagnostic Group promised to provide office space and medical equipment for him. The group also agreed to share common overhead costs with Wilgers and maintain a staff common to all doctors, according to the complaint filed Oct. 28 in Jefferson County District Court.

In return, Wilgers and other doctor members of the group pledged to pay a portion of common costs.

"As the medical doctors would incur expenses in their practice, the various venders would bill the Plaintiff Group LLC," the suit states. "The Plaintiff Group LLC would pay the bill and the members of the Plaintiff Group LLC would reimburse the Plaintiff Group LLC for their portion of the expense paid by the Plaintiff Group LLC."

After Wilgers agreed to the contract, the Diagnostic Group states it incurred debt to furnish his office. Wilgers also established a line of credit so services he provided would be billed to Diagnostic Group, the complaint says.

On Feb. 6, Diagnostic Group demanded Wilgers pay $201,143.91, which it claims it was due under Wilgers' line of credit.

At first, Wilgers gave a partial payment, but asked Diagnostic Group to wait before depositing the check. By the time Diagnostic Group finally attempted to deposit Wilgers' check, it claims Wilgers had placed a stop payment on it, according to the complaint.

Since then, Wilgers has refused to pay the Diagnostic Group the money it says it is owed, the suit states. In addition, he removed property from his office that had been provided by the Diagnostic Group, the complaint says.

Diagnostic Group's allegations against Wilgers include conversion, breach of contract, breach of fiduciary duty and fraud.

In the four-count suit, Diagnostic Group is seeking actual and exemplary damages, costs, attorney's fees, pre- and post-judgment interest and other relief the court deems just.

It will be represented by William H. Conley of Conley and Schexnaider in Beaumont.

The case has been assigned to Judge Milton Shuffield, 136th District Court.

Jefferson County District Court case number: D185-228.

Local woman sues convenience store after fall

Thu, 05 Nov 2009 14:20:00 CST

A Jefferson County woman has filed suit against Speedy Stop Stores, alleging she broke her elbow after she fell on a substance while walking through the store.

Stephanie Murphy claims she was shopping for food at Speedy Stop No. 14 in Beaumont on March 25 when she slipped on an unknown substance, causing her multiple injuries.

Because of her fall, Murphy broke her elbow, which required multiple surgeries, lost wages and experienced pain, suffering and mental anguish, according to the complaint filed Oct. 28 in Jefferson County District Court.

Speedy Stop Stores was negligent because it knew of the wet condition, which caused an unreasonable amount of harm to its customers, the complaint states.

Murphy is seeking an unspecified judgment, plus pre- and post-judgment interest, costs and other relief the court deems just.

She will be represented by Gordon D. Friesz of McPherson, Hughes, Bradley, Wimberley, Steele and Chatelain in Port Arthur.

The case has been assigned to Judge Bob Wortham, 58th District Court.

Jefferson County Circuit Court case number: A185-226.

Marshall resident claims denture cream caused zinc poisoning

Thu, 05 Nov 2009 14:11:00 CST

MARSHALL � A Marshall resident and an Arizona resident believe they are the victims of zinc poisoning and possible neurological damages caused by their ingestion of Super Poligrip Denture Adhesive Cream.

Arguing the product was defective and unreasonably dangerous, Dani Arnold and Nathan Kuester filed a product liability lawsuit against Smithkline Beecham Corp. and Block Drug Co. Inc. on Oct. 9 in the Marshall Division of the Eastern District of Texas.

According to the complaint, zinc poisoning and a resulting copper deficiency can lead to loss of balance, paralysis, tingling, numbness, pain and other neurological problems.

The plaintiffs argue that the defendants' products did not contain any product warnings or instructions explaining the health hazards associated with the absorption and ingestion of the denture adhesive.

Arnold and Kuester state that they are now "subject to an extraordinarily increased likelihood of developing neurological injury, sexual dysfunction and other complications."

Causes of action filed against the manufacturer's include strict products liability, design defect, marketing defect-inadequate and improper warnings, negligence, intentional misrepresentation, negligent misrepresentation, breach of express and implied warranties, unlawful marketing activities and deceptive trade practices.

The lawsuit states that the defendants are negligent for failing to adequately warn, failing to use reasonable care in testing and inspection, failing to implementing a safe design and failing to use reasonable care in the process of manufacturing of Poligrip.

The plaintiffs are seeking damages for medical expenses, medical monitoring, pain and suffering, mental and emotional anguish, anxiety, loss of enjoyment of a normal life, physical impairment, disability, disfigurement, lost earnings and loss of earning capacity, prejudgment interest and attorneys' fees.

Also seeking punitive damages, the plaintiffs argue that the defendants continue "to design, manufacture, market, distribute, and sell their respective product so as to maximize sales and profits at the expense of the public's health and safety and in conscious disregard of the foreseeable harm."

The plaintiffs are represented by Texarkana attorney Kurt Truelove of the law firm Patton Tidwell and Schroeder LLP and Marshall attorney Casey Q. Carlile of The Carlile Law Firm LLP.

U.S. District Judge T. John Ward has referred the case to Magistrate Judge Charles Everingham for pretrial proceedings.

Jury trial is requested.

The case will likely be transferred to the multidistrict litigation pending in the Southern District of Florida for pretrial proceedings. (MDL- 2051 In Re: Denture Cream Products Liability).

Case No 2:09cv00314

Jury finds in TDCJ's favor, no damages awarded

Thu, 05 Nov 2009 13:44:00 CST

Two former Texas Department of Criminal Justice employees alleging discrimination will collect nothing from their past employer as jurors found in TDCJ's favor on Wednesday, Nov. 4.

TDCJ was on trial the past two weeks for allegedly discriminating against former employees Bonnie Young and Michael Simmons, who claimed TDCJ supervisors retaliated against them for reporting illegal activities.

Young claimed she was threatened with termination after she disciplined a black subordinate. Young, a white woman, felt her supervisor was purposely trying to discredit and get rid of her so she could eventually be replaced by an African American.

On Wednesday, Oct. 28, Young testified that her TDCJ supervisors retaliated against her for reprimanding a black male employee, whom she alleges was using the inmates to build personal items for him.

She also testified that her supervisor told her to "back down" from the matter, but she refused.

A retired Texas Department of Criminal Justice director testified on Tuesday that it was his "solution" to transfer Young rather than independently investigate her numerous claims against fellow TDCJ employees.

Doug Dretke, retired director of the TDCJ Correctional Institutions Division, testified that he was aware of the controversy surrounding Young and made the decision to transfer her to a different unit, rather than independently investigate her claims.

However, jurors found no negligence in Dretke's "solution." They ruled in favor of TDCJ and awarded no damages to the plaintiffs.

Background

When her position was finally taken from her, Young, along with Simmons, filed a suit against her former employer on Feb. 17, 2006, in Jefferson County District Court.

Court documents show that in the fall of 2003, TDCJ transferred Young to the Mark W. Stiles Prison Unit as an assistant warden to work under the direct supervision of then Senior Warden David Doughty.

In addition to other duties, Doughty assigned Young to assist in overseeing the prison's kennel and horse operations.

Her duties included supervision of the kennel sergeant, David Conley. Simmons, another TDCJ officer, was Conley's assistant kennelman. Young contends that in March 2005, TDCJ's discriminatory treatment led to her transfer from the Stiles Unit to another prison.

According to court documents, Young filed a charge of discrimination on June 7, 2005, with the Texas Workforce Commission-Civil Rights Division, alleging Doughty removed her from her position based on her gender and race.

She also asserted that Doughty threatened to retaliate against her if she disciplined Conley, whom Young alleged made unfounded sexist and racist remarks about her with Doughty's consent.

Based on Conley's unfounded allegations, according to Young's testimony, Doughty wrongfully took disciplinary actions against her, ultimately resulting in her transfer to a less desirable position at another prison.

Dretkey testified that the transfer was his "solution" to the problem.

Young's charging documents also state that the harassment increased following her refusal to comply with Doughty's instructions on how to respond to an internal departmental investigation.

According to Young, soon after she began supervising Conley he began making threatening remarks about Young to Simmons, which he reported. Despite Doughty's instruction that she not discipline Conley, Young issued Conley several reprimands based on his poor work performance and TDCJ policy infractions.

Then, in November of 2004, Conley filed a discrimination complaint against Young. Conley alleged that Young allowed another correctional officer to make racist remarks in his presence.

Conley also alleged that Young and Simmons were engaged in a sexual relationship.

An investigation failed to substantiate Conley's complaints.

Doughty met with Young and told her that he did not allow such relationships. Doughty subsequently modified Young's job duties so that she no longer had supervisory responsibilities over the prison's kennel or field operations.

Young responded by writing Doughty, complaining about Conley spreading false information about her relationship with the employee and objecting to the modifications that Doughty made to her job, court papers say.

The suit also named Mosely, Conley and Doughty as defendants.
Judge Bob Wortham, 58th District Court, is presiding over the trial.
Young is represented by attorney John Morgan of the Lindsay & Morgan law firm.

TDCJ is represented in part by attorneys Allan K. Cook and Phillip E. Marrus.

Case No. A176-511

Texas SC weighs in on fees from negligent lawyers

Thu, 05 Nov 2009 13:39:00 CST

Justice Phil Johnson

AUSTIN � Clients can recover fees from negligent lawyers but only to the extent that negligence caused the fees, the Supreme Court of Texas ruled on Oct. 30.

The justices didn't measure the extent of negligence in the case before them, however, choosing instead to let Fifth District appeals judges in Dallas measure it.

Fifth District judges can dodge a decision too, because the justices authorized them to remand it to Dallas County for a new trial if they wish.

For the moment a question mark still hangs over a trial that ended 10 years ago.

At trial, the firm of Akin, Gump, Strauss, Hauer and Feld represented National Development and Research Corp. in a suit with Panda Energy International.

The companies had agreed in 1994 to invest in an energy project in China.

In 1997, Panda issued $155 million in bonds for the project through a subsidiary.

Pursuant to the 1994 agreement, NDR received shares of stock in Pan-Sino, another Panda subsidiary.

Panda then notified NDR that it would terminate the agreement and buy back its stock.

NDR wouldn't sell, so Panda sued the company and its president, Robert Tang, in Dallas County district court.

Tang hired the Akin Gump firm, agreeing to pay an hourly fee plus a contingency fee on a sliding scale.

For Tang, Akin Gump filed a counterclaim against Panda.

At jury trial in 1999, a Panda International employee testified that the China project couldn't meet its debt and that he was trying to save the company.

Panda's chairman testified that banks lost confidence in the China market and bonds were trading at 30 to 40 cents on the dollar.

Jurors rendered a verdict but District Judge Jay Patterson struggled to carry it out.

He entered judgment but modified it three times in two years.

He finally ruled that no one owed damages to anyone, but that NDR owed Panda $427,317 in legal fees.

The Fifth District affirmed Patterson in 2002.

By then, NDR had filed a malpractice suit claiming Akin Gump failed to request jury instructions on breach of contract.

At trial, District Judge Charles Stokes instructed jurors "to only consider the amount of money NDR would have recovered and collected" from Panda.

Jurors found that Akin Gump's negligence caused NDR to lose more than $500,000 in stock value and success fees.

They held Akin Gump liable for about $170,000 of the judgment in Panda's favor and $216,590 in legal fees it received from NDR.
Stokes entered judgment accordingly.

On appeal, Fifth District judges affirmed Stokes in awarding damages for stock value, success fees, and the Panda judgment, but they reversed him on awarding legal fees.

Both sides appealed to the Supreme Court, where neither gained complete victory.

Justice Phil Johnson wrote, "We agree with Akin Gump that the evidence is legally insufficient to support the jury's findings that NDR would have collected damages awarded in the Panda suit for the value of NDR's Pan-Sino stock and for success fees."

On the other hand, he rejected Akin Gump's argument that NDR would have incurred legal fees regardless of negligence.

He wrote, "We also agree with NDR that it may recover damages for attorney's fees it paid to its attorneys in the underlying suit to the extent the fees were proximately caused by the defendant attorneys' negligence."

He wrote that a general rule against recovery of fees from an adverse party in litigation "does not bar a malpractice plaintiff from claiming damages in the malpractice case for fees it paid its attorneys in the underlying suit."

He rejected Akin Gump's argument that NDR didn't prove a breach of duty that would allow fee forfeiture.

"If an attorney has breached his or her fiduciary duty to a client, then part or all of the fees the client paid may be recovered through disgorgement and forfeiture," he wrote.

Still, he couldn't find evidence to support the jury's award of $216,590.

The justices remanded the award to Fifth District judges and advised that if they can't solve it, they should send it back to Stokes.

David Shuford and Michael Jones represented National Development and Research.

Thomas Allen, Corbet Bryant, Jeffrey Levinger and Christopher Scanlan represented Akin Gump.

Train conductor slips on ladder, sues railroad

Thu, 05 Nov 2009 13:21:00 CST

MARSHALL � While climbing down a tank car, a conductor slipped and fell from a ladder, hurting his right knee. The conductor believes that a slippery substance on the ladder presented an unsafe condition.

Jose Natal filed a personal injury lawsuit against the Kansas City Southern Railway Co. on Nov. 2 in the Marshall Division of the Eastern District of Texas.

The incident occurred on July 8, shortly after Natal, the train's conductor, released a hand brake and attempted to climb down a ladder from a tank car.

"The ladder in question was in such a condition that it was not safe to use without creating unnecessary danger of personal injury and the ladder failed to comply with applicable statutes and regulations," court documents state.

The lawsuit alleges that the defendant was negligent by:

Failing to provide proper supervision;

Failing to properly train its employees;

Requiring that the plaintiff perform unsafe acts;

Failing to warn of the dangers associated with working in or around tank cars;

Operating its tank cars in an unsafe condition;

Failing to take reasonable steps to prevent slippery substances from remaining on ladders;

Failing to inspect the ladders on its tank cars: and

Failing to remove slippery substances from the ladders.

The Louisiana resident is seeking damages for physical pain, mental anguish, physical impairment, disfigurement, loss of wages, loss of earning capacity and medical expenses.

Houston attorneys Sara Youndahl, Ross Citti and Joshua Davis of the law firm Youngdahl and Citti PC are representing the plaintiff.

U.S. District Judge T. John Ward will preside over the litigation.

Case No 2:09cv00341