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Dallas

NBA Games Soon to Be Settled Via Lawsuit

by Christian Schneider on June 29, 2007

A “slam dunk” story for the day after the NBA Draft:

Dallas Mavericks owner Mark Cuban isn’t shy about using multiple avenues to promote himself and his team. In what is likely an attempt to keep his name in the news, Cuban is suing Golden State Warriors head coach Don Nelson, who used to coach the Mavericks, for knowing the Mavericks personnel a little too well. This “inside” knowledge, claims Cuban, helped the eighth-seeded Warriors beat the #1 seed Mavericks in the first round of the NBA playoffs this year.

From the story:

Mavericks owner Mark Cuban believes Golden State’s sizzling shooting alone didn’t sink his basketball team in the most stunning playoff defeat in NBA history.

That’s according to Don Nelson’s attorney, John O’Connor, who said Cuban is suing Nelson, claiming the Warriors beat the Mavs in the first round because the Warriors’ coach — and former coach of the Mavs — had “confidential information and he [Cuban] wants to enjoin Don from coaching against the Mavericks.”…

According to the story, when Nelson left the Mavericks, he signed a “non-compete” agreement with Cuban, which Nelson claims ended when he took the job with Golden State. Cuban contends that this agreement is still in effect, which should prohibit Nelson from being able to coach another team.

I’ve often wondered how this actually affects sports teams – for instance, when a baseball player is traded mid-season to a competitor. Does it do his new team any good to have his inside knowledge of how the other team works? Isn’t it an advantage to know all the signals and shifts the other team can make, not to mention the personnel tendencies?

It’s still up in the air, however, which is a more embarrassing move for a franchise: Cuban’s lawsuit, or drafting a Chinese guy who may be lying about his age, refuses to work out against a human being, and has the Chinese government saying he will never play for your team. But I’m not bitter.

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April 24 roundup

by Ted Frank on April 24, 2007

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Welcome Dallas Morning News readers

by Walter Olson on March 26, 2007

The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:

I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning – - Somebody, somewhere…

While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (“Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (“Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (“Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).

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Lawsuits against restaurant critics

by Walter Olson on March 10, 2007

New York Times legal correspondent Adam Liptak has a good article summing up the state of play on legal actions arising from unkind reviews of eateries, including several cases familiar to our readers (Feb. 27, Philadelphia; Feb. 10, Belfast; Jan. 3, 2006, Dallas)(“Serving You Tonight Will Be Our Lawyer”, Mar. 7). More: PhilaFoodie.

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Dr. Lawrence M. Poliner v. Presbyterian Hospital update

by Ted Frank on October 19, 2006

The ludicrous $366 million award on a conspiracy theory (Aug. 30, 2004; Sep. 2, 2004) was, as we predicted reduced by remittitur to a still ludicrous $22.5 million. (Plaintiff’s attorney’s press release, Sep. 21). Kevin M.D.’s commenters note that the trial bar simultaneously complains that doctors don’t do enough to police themselves and then hold doctors liable for policing other doctors.

Note that the doctors whom the verdict was issued against weren’t even the ones on the peer review committee that suspended Dr. Poliner’s privileges for a few months; they were just the ones who started the peer-review process.

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Eating their own: Fred Baron v. Baron & Budd

by Ted Frank on September 4, 2006

Apparently there is no honor among thievesplaintiffs’ attorneys. The Texas Shark Watch Blog tells us that John Edwards’ money-man, Fred Baron, has sued his former law firm:

Never one to overlook any conceivable cause of action, Baron alleges in his petition filed in Dallas state district court breach of contract, breach of fiduciary duty, conspiracy to breach fiduciary duty, tortious interference, conspiracy to tortious interference, fraud or alternatively negligent misrepresentation, conspiracy to fraud, fraudulent transfer, conversion, legal malpractice, negligence, unjust enrichment, and alternatively promissory estoppel or quantum meruit.

The blog has much more about plaintiffs’ bar involvement in Texas politics, including the use of over a million dollars of trial-lawyer money to support the independent-Republican candidacy of Carole Strayhorn, presumably to split the Republican vote and unseat a governor who has done much for reform. Efforts by trial lawyers to supplant reform-friendly Republican legislators with their own stalking-horse candidates in Republican primaries were unsuccessful, however.

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Flying the trial lawyer skies

by Walter Olson on February 27, 2006

Duly noted: Pennsylvania state treasurer and U.S. Senate candidate Robert P. Casey Jr. last June made his first fund-raising trip outside the East Coast, flying to Dallas aboard a private jet owned by the law firm of Baron & Budd, poster kids for legal ethics in the asbestos realm. “Casey flew out of Dallas with more than $71,000, including $28,000 from employees of Baron and Budd.” (Carrie Budoff, “Money at center of Senate contest”, Knight Ridder/Centre Daily Times, Feb. 13)(OpenSecrets.org). Similar: Jan. 8, 2001 (Sen. Edward Kennedy).

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Maquiladoras caused birth defects? $17M later, maybe not

by Walter Olson on February 14, 2006

In 1991 portions of Texas’s Rio Grande Valley saw an upsurge in babies born with neural-tube defects. Litigation resulted:

Residents and lawyers had blamed pollution, and General Motors and other U.S.-owned factories paid $17 million without admitting wrongdoing to settle a lawsuit accusing their border factories of poisoning the air.

The claimed linkage of cause and effect between the factory pollution and the birth defects was, to say the least, much controverted at the time, and is looking even less impressive in hindsight:

no chemical links to the disease were ever proven, and Texas health officials began suspecting fumonisin, a toxin in corn mold. Experts had noted a high concentration in the corn harvest just before the outbreak. Some Texas horses died from brain disease caused by the toxin.

Now, a study in the February issue of the journal Environmental Health Perspectives adds impetus to the corn-mold theory:

The study found that pregnant women who ate 300 to 400 tortillas a month during the first trimester had more than twice the risk of giving birth to babies with the defects than did women who ate fewer than 100 tortillas.

Blood samples indicated that the higher the level of fumonisin, the greater the risk of neural tube defects.

Tortillas are an inexpensive dietary staple along the Texas-Mexico border, and studies suggest that the average young Mexican-American woman along the border eats 110 a month.

(“Study: Bad corn caused birth defects”, AP/Seattle Post-Intelligencer, Feb. 8). See also Dallas Morning News, Mar. 4, 2001; AP, Jan. 2001; Nicole Foy, “Border birth defects are tied to poverty”, San Antonio Express-News, Apr. 9, 2004.

Among its other implications, the episode may suggest the safety gains to be had in the shift from a pre-modern food regime based on local farm and home production to the sort of industrially based food regime more familiar to most Americans. Even aside from the issue of folic acid fortification, a big-city tortilla factory run by a large company would probably have had a better likelihood of screening out moldy batches of corn.

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Update: Dallas Observer doesn’t owe $1 billion

by Ted Frank on February 13, 2006

We reported on the story in September 2004:

“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars.

Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, “Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure”, Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).

The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC § 81.103, would create a cause of action for a plaintiff who posts “I have tested negative for HIV” on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of “test result”:

“Test result” means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.

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Update: Dallas paper agrees to second restaurant review

by Walter Olson on January 3, 2006

Restaurateur (see comments) Phil Romano has agreed to drop his lawsuit against the Dallas Morning News over its review of his local eatery, Il Mulino, in exchange for the paper’s promise to run a second review of the restaurant in coming months. “While [reviewer Dotty] Griffith handed out 4-star ratings for service and ambience, Mr. Romano took offense at her criticism of some of the restaurant’s main dishes, including entrees featuring its Bolognese and vodka sauces.” We covered the case Aug. 24, 2004. (“Restaurateur, News settle review lawsuit”, Dallas Morning News, Dec. 17)(via Romenesko).

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Blogs on Poliner

by Ted Frank on September 2, 2004

The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db’s MedRants blog (Aug. 31) calls for a “barf bag”; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.

Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?

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HIV-positive man sues Dallas Observer

by Ted Frank on September 2, 2004

“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”–which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars. The story, including “Doe’s” name, remains on the paper’s web site, and the paper has filed a motion for summary judgment on First Amendment grounds as well as arguing that the broadly-drafted statute shouldn’t be construed to encompass journalists. (Miriam Rozen, “Billion-Dollar HIV Suit Raises First Amendment Issues”, Texas Lawyer, Sep. 2; David Webb, “Dallas Observer fights lawsuit claiming wrongful HIV disclosure”, Dallas Voice, undated). More medical privacy madness: Jan. 21 and links therein; more Dallas Observer litigation Aug. 24 and Mar. 23, 2000.

Update: Case thrown out in January 2006.

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From the “damned if you do, damned if you don’t” files

by Ted Frank on August 30, 2004

In three separate cases in 1997, nurses at Presbyterian Hospital of Dallas’s cardiac catherterization lab expressed concerns about Dr. Lawrence R. Poliner’s care of patients. When the director of the lab, Dr. John Levin, alleged to the hospital’s chief of cardiology, Dr. John Harper, that Poliner had also recently performed an emergency angioplasty on the wrong artery, the chair of department of internal medicine, Dr. James Knochel, confronted Poliner, and told him to voluntarily stop performing cardiac catheterizations while his privileges were reviewed or face termination. A six-doctor peer review committee met the next month, decided that Dr. Poliner had given substandard care in 29 out of 44 cases, and voted unanimously to suspend Dr. Poliner’s privileges at the lab.

So far, so good, right? After all, we’re told by the plaintiffs’ bar that the medical malpractice crisis would go away magically if the medical profession would just police its own, and that’s exactly what happened here. Can you imagine what a trial lawyer would do with the peer review committee’s conclusions if the hospital did nothing and had been sued for Poliner’s work afterwards?

Dr. Poliner eventually got his privileges reinstated a few months later in a hearing held before a different peer review committee of doctors after a number of prominent cardiologists spoke on his behalf; another appellate committee at the hospital found no wrongdoing by the initial peer review committee, who Poliner accused of seeking to eliminate him as “competition.” Not satisfied with exoneration, Poliner sought retribution. He, with the help of medical malpractice attorney Charla Aldous, sued the hospital, Knochel, Harper, Levin, and the six doctors on the peer review committee for supposed antitrust and “consumer fraud” violations, breach of contract, defamation, interference with contractual relations, and intentional infliction of emotional distress. The antitrust and consumer fraud claims were thrown out (BNA, “Antitrust Claims Are Eliminated From Physician Suspension Case”, Antitrust & Trade Reg. Rep., Nov. 7). So were the claims against the six peer review committee doctors, who had immunity under Texas Peer Review Immunity Statutes, which the state trial lawyers’ association had fought hard against in the legislature.

But the case against the other three doctors and the hospital proceeded. A jury found in favor of Dr. Poliner’s conspiracy theory that competitive malice motivated the entire affair. The jury’s proposed payday for six months’ missed work by the 60-year-old? $366 million: “$141 million to be paid by Dr. Knochel, $32 million each from Dr. Harper and Dr. Levin and $161 million from Presbyterian.” The hospital announced that it would appeal: “From time to time, hospitals and members of the medical staff leadership must make decisions relating to patient care and safety, and these decisions sometimes affect an individual doctor’s privileges at that hospital.” (Terry Maxon, “Dallas doctor awarded $366 million in damages”, Dallas Morning News, Aug. 28).

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Sues over restaurant review

by Walter Olson on August 24, 2004

Restaurateur Phil Romano earlier this month “slapped Dallas Morning News restaurant critic Dotty Griffith and the Belo Corp., the newspaper’s parent, with a suit alleging fraud, malice, defamation and an ‘attempt to cripple the business of one of Dallas’ finest new restaurants’ via an April 16 restaurant review. That finest new restaurant is Il Mulino New York, the Romano-shepherded Dallas extension of the much heralded Greenwich Village venue founded in 1981 by Fernando and Gino Masci.” (Mark Stuertz, “Eat My Briefs”, Dallas Observer, Aug. 12; Sean Mehegan, “The Porcini Was Praiseworthy, but a Lawsuit Was Served Next”, New York Times, Aug. 23). Update Jan. 3, 2006: parties settle with paper agreeing to run second review.

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In the Kerry skyboxes

by Walter Olson on July 27, 2004

Unlike his running mate John Edwards, John Kerry has willingly disclosed the identities of his “bundlers”, the financiers responsible for raising large amounts of money in grouped donations. (He has 266 who’ve come in at the $100,000+ level, compared with more than 525 for George W. Bush.) Names familiar to readers of this site are well represented: “Trial lawyers who represent injured people in suits against business are prominent Kerry fans. Among his $100,000 Vice Chairmen are Florida plaintiff’s lawyer Kirk Wager, who hosted Mr. Kerry’s first presidential fund-raiser at his Coconut Grove home in December 2002, and attorneys Richard Scruggs of Mississippi and John Coale of Washington, both part of the tobacco companies’ $206 billion settlement with 46 states.” However, Mr. Kerry (like Mr. Bush, but unlike Mr. Edwards) also raises large amounts from other types of law firms, including firms known for lobbying and for general business work, including Mintz Levin and Piper Rudnick. (Wayne Slater, “Vested interests in Kerry”, Dallas Morning News, Jul. 25).

“Lawyers, especially trial lawyers, are the engine of the Kerry fundraising operation,” reports the Washington Post. “Lawyers and law firms have given more money to Kerry, $12 million, than any other sector. One out of four of Kerry’s big-dollar fundraisers is a lawyer, and one out of 10 is an attorney for plaintiffs in personal injury, medical malpractice or other lawsuits seeking damages. …

“Among the trial lawyers who raised money for Kerry early in the campaign were Michael V. Ciresi of Robins, Kaplan, Miller & Ciresi LLP, who represented Blue Cross and Blue Shield of Minnesota in its successful $6.5 billion suit against the tobacco industry, and Michael T. Thorsnes, who recently retired from his San Diego law firm after winning $250 million in settlements and verdicts.” After Kerry locked up the race, “One trend was a sharp increase in the number of trial lawyers joining the Kerry fundraising campaign. Among those soon joining as major fundraisers were John P. Coale, one of the nation’s most prominent trial lawyers, whose better-known cases include the Union Carbide disaster in Bhopal, India, and at least 16 plane crashes; Robert L. Lieff, founding partner of Lieff Cabraser Heimann & Bernstein LLP, a San Francisco-based firm that lists four class-action settlements in 2004 alone totaling $176.5 million; and San Francisco lawyer Arnold Laub, whose firm Web site lists its participation in the $3.7 billion fen-phen settlement, a $185 million toxic chemical award and $4.5 million for a pedestrian accident case. … John Morgan, an Orlando lawyer whose firm specializes in medical malpractice, said he has helped raise more than $500,000 for Kerry.” (Thomas B. Edsall, James V. Grimaldi and Alice R. Crites, “Redefining Democratic Fundraising”, Washington Post, Jul. 24)(our politics archive).

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Baron & Budd

by Walter Olson on July 15, 2004

Ramesh Ponnuru at National Review Online (“Robber Baron?”, Jul. 15) thinks the Department of Justice would be warranted in opening a RICO probe of the Dallas-based firm based on the contents of a detailed statement attached by Sen. Jon Kyl (R-Ariz.) to a report of the Senate Judiciary Committee, exploring at length the allegations concerning Baron & Budd’s practices in asbestos litigation (PDF) (see pp. 81-184 and specifically 86-137). For much more, see Jun. 17 and the many links from there.

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Welcome National Journal, Salon, Dallas Morning News readers

by Walter Olson on July 14, 2004

Stuart Taylor, Jr. takes a hard look at the Kerry/Edwards ticket and weighs the likelihood that it will do much to rein in the litigation biz. Quotes my comment comparing Sen. Edwards to a cleaned-up Michael Moore (“Edwards and the Problem with the Trial-Lawyer Lobby”, National Journal/Atlantic Online, Jul. 13). At Salon, reporter Tim Grieve pens an all-out defense of Edwards which is kind enough to quote me in two places (“The GOP war on trial lawyers”, Jul. 13 (subscription or ad-based “day pass”)). And the Dallas Morning News, in the person of editorial columnist Rod Dreher, includes this site in a short list of recommended weblogs, coincidentally quoting an item of mine on locally based lawyer Fred Baron and his involvement with this year’s Democratic ticket (“Welcome to the blogosphere”, Jun. 23).

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New batch of reader letters

by Walter Olson on April 20, 2004

Still far from caught up, we’ve posted four more entries from our pipeline of reader letters on our letters page. Our favorite this time comes from a reader who was a class member in a class action suit filed against companies alleged to have sent out unsolicited (“junk”) faxes. How was the settlement notice sent out to the class? Why, via another unsolicited fax. Among topics of other letters: a $4.75 million settlement payable by a Massachusetts utility because its driver tried to be courteous and wave a pedestrian into traffic, where she was hit by another vehicle that failed to stop; the case of the fired Dallas police chief who, fragile of soul, wants $5 million for his emotional anguish at the episode; and finally, a letter from another trial lawyer who appears not to like us very much.

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