Posts tagged as:


There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (“Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).

In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.

En banc briefs in 07-40058, In re Volkswagen AG:

Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing

The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.

In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.

Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.


Pulitzer-prize winning columnist Leonard Pitts Jr.:

Anna from Estonia mak[es] it a point to show visiting friends a sight they could never see in the old country. They laugh, they point, they whip out cameras and take pictures. Of the Everglades? No. Of Mount Rushmore or Lady Liberty? No.

Anna said they take pictures of the idiot signs. These she said, crack her friends up. “Caution: Coffee is hot.” Apparently, elsewhere in the world, you don’t need a sign to know this.

More on the deservedly infamous McDonald’s coffee case. Similar discussion: March 2.

April 24 roundup

by Walter Olson on April 24, 2008


It started as a joke, but Bozeman, Mont. attorney Christopher Gillette is going through with the ambitious aquarium installation, whose saltwater inhabitants will include venomous fish as well as sharks. [Bozeman Daily Chronicle; AP/El Paso Times] In the 1980s the now well-known law firm of Bickel & Brewer adopted the snake exhibit at the Dallas Zoo. (Mark Donald, “Rambo Justice”, Dallas Observer, Mar. 19, 1998).


Ethnic discrimination by proxy? “‘I believe controlling the color you paint your house is basically profiling the Hispanic community,’ said Elizabeth Villafranca, whose family owns a Mexican restaurant in [Dallas, Texas suburb] Farmers Branch. ‘We all know who paints their homes tropical colors.'” (Anabelle Garay, “Hispanics see red over proposal”, AP/Bryan-College Station Eagle, Oct. 10). More: Virginia Postrel weighs in.


How pathetic is the State Bar of Texas when it comes to protecting clients from rogue lawyers? This pathetic:

Dallas attorney Bruce Patton has a clean disciplinary record, according to the State Bar’s Web site, which provides profiles of the state’s 80,000 or more practicing attorneys. But consider this before you hire him to draft your will: Patton is in state prison after being convicted of a felony two years ago….

The Texas Legislature and Supreme Court, which share a role in establishing ethics rules for attorneys, have made it so that the public stays in the dark about thousands of lawyers accused of misconduct. Bar confidentiality rules ensure that many sanctions are private and that lawyers accused of felonies can continue practicing. The Bar doesn’t require attorneys to report their criminal record or malpractice suits.

The Fort Worth Star-Telegram’s disturbing investigation goes into considerable detail, and mentions a couple of cases that will be familiar to readers of this site: “San Antonio attorney Ted Roberts, charged with stealing $100,000 from his wife’s lovers, was recently convicted, two years after being indicted. He faces a five-year sentence. The Bar didn’t suspend him until June and is now recommending disbarment.” And: “The firm of John O’Quinn, one of the state’s wealthiest personal-injury lawyers, was ordered by an arbitration panel this summer to pay $35 million to former clients who say he overbilled them for expenses, but no mention of that order is on the Bar’s Web site.” (Yamil Berard, Fort Worth Star-Telegram, Aug. 19; “Panel seeks changes in Bar’s disciplinary system for lawyers”, Aug. 19). More: GruntDoc wonders whether doctors can expect a similar concern for confidentiality.


Why they call it discovery

by Walter Olson on September 1, 2007

“A lot of plaintiff lawyers simply use the litigation process to find out whether it’s a good case as opposed to trying to find that out before they sign it up,” Mr. Johnston says.

– from a profile of Randy Johnston, a Dallas lawyer who specializes in plaintiff’s legal malpractice work. (Cheryl Hall, “Randy Johnston is a lawyer who sues other lawyers”, Dallas Morning News, Aug. 20).

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.


April 24 roundup

by Ted Frank on April 24, 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).

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.

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.

{ 1 comment }

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.

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)( Similar: Jan. 8, 2001 (Sen. Edward Kennedy).

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.

{ 1 comment }

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.


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).


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?