Op/Ed on the problem of health insurance subrogation

Judy Kostura, an Austin lawyer with a wealth of expertise in insurance subrogation matters, has a good op/ed in today's Austin American-Statesman:

Why you should always read the fine print

Judy Kostura, LOCAL CONTRIBUTOR, Thursday, April 17, 2008

Wal-Mart's recent efforts to deprive an employee of her injury settlement highlight an unfair advantage insurance companies enjoy in the legal arena. Unfortunately, the Wal-Mart example is not an isolated incident. The legal tactic Wal-Mart used against the policyholder has recently been endorsed by the Texas Supreme Court and is being used daily against injured Texans.

Deborah Shank, an employee who was covered under Wal-Mart's group health plan, was catastrophically injured in a wreck caused by an 18-wheeler. Wal-Mart's employee health policy paid the medical expenses and the Shank family looked to the justice system to hold the trucking company accountable. A settlement from the trucking company was put in a trust account to help fund the round-the-clock care that Shank's severe brain injury requires.

Wal-Mart attempted to raid the trust account to recover the money it spent, relying on a subrogation clause in the health policy fine print. Wal-Mart backed off on its demand only after being vilified in the court of public opinion.

You never heard of subrogation? Look closely at your health insurance policy. After the pages promising benefits in exchange for your premiums, you'll find a section demanding reimbursement from you if you are hurt because of someone else's negligence.

Texas has allowed insurance companies to include subrogation clauses for years, but the insurers were reimbursed only after the injured policyholder was paid for lost wages, scarring, future medical expenses, pain and other damages. Putting the policyholder first is known as the "made whole" doctrine and required courts to interpret the fine print fairly. Allow me to use a real Austin example.

For privacy, let's call this client "Mary." One morning, Mary kissed her toddler son goodbye as she dropped him off at day care on her way to work. Minutes later, a car crossed the center stripe and smashed into Mary head-on, breaking her neck and trapping her inside a burning vehicle. Brave bystanders pulled her from the flames. Rendered a quadriplegic by the wreck and burned on her arms and legs, Mary lost her job, was divorced by her husband and spent months in a hospital.

The other driver's insurance company paid Mary $100,000, which was all of the coverage available. It was not much for a 34-year-old divorced mother who would never walk or work again, but it would help. Mary's health insurer, armed with a subrogation clause, demanded that Mary hand over the entire proceeds of the settlement. Because of the "made whole" doctrine, the legal system required Mary's health insurer to waive its subrogation interest, allowing her to keep the recovery.

Vanessa Cantu, like "Mary," was rendered a quadriplegic in a collision and was able to secure a settlement from the insurance company of those responsible for her injuries. Her settlement didn't compensate her fully for her terrible injury, but it helped. Cantu's insurer, Fortis, sued her to recover the money it had paid under the policy. The case found its way to the Texas Supreme Court. The court sided with the insurance company and wrote an opinion that eviscerated the 92-year-old "made whole" doctrine in Texas law. Cantu was the first person hurt by this wrong-headed decision, but she won't be the last. The Fortis v. Cantu case gives insurance companies a free rein to write deceptive and onerous health insurance policies, promising benefits on one page and taking them away in the fine print on another.

Insurance companies should be treated fairly, but they shouldn't be able to jump to the front of the line when settlements are paid for serious injuries. Public outcry saved Shank in the Wal-Mart case. The Texas "made whole" doctrine saved Mary, but the Texas Supreme Court has taken that away.

We need a legislative solution. Congress and the Texas Legislature should enact a strong and unambiguous "made whole" doctrine that puts Texas families first.

Study accuses Merck of deception in promoting Vioxx

A study published today in the Journal of the American Medical Association accuses pharaceutical giant Merck of deception in promoting Vioxx. According to the researchers, who had access to thousands of documents gathered in lawsuits involving Vioxx, Merck "waged a campaign of deception to promote its drug, moving slowly to warn of possible hazards while at the same time dressing up in-house studies as the work of independent academic researchers." Among the allegations are that Merck gave the Food and Drug Administration an incomplete accounting of deaths in a clinical trial involving Vioxx, and that studies ostensibly done by independent scientists were done by employees or contractors.

Two observations: First, this highlights the growing problem of "preemption," in which drug makers avoid civil liability by hiding behind the FDA's approval of drugs and devices. That is, if the federal government thinks something is safe enough to sell to the public, a slick trial lawyer and a jury of twelve yokels ought not find to the contrary and award a bunch of money to some poor sap who dies from using it. Preemption has been a darling of the Bush administration and has found sympathetic ears on the Supreme Court. The problem is, as this Vioxx study points out, the FDA is getting their information from the drug makers themselves. Bad idea.

Second, when individuals lie and kill people, we call that a felony and we punish them. When drug companies lie and kill people, their market share increases and their stock rises. How is that right?

Another Truck Wreck in Dallas

WFAA.com reporting a wreck in Dallas on Stemmons (I35) near Carpenter Freeway involving a cement mixing truck, a car and a motorcycle. Photos show the cement truck on its side apparently on top of an automobile. Southbound lanes of I35 are closed while rescue workers are on the scene.

San Francisco files suit against credit card "arbitration" service

The San Francisco Chronicle reports that the city attorney is suing a leading credit card dispute resolution service, accusing it of favoring industry and stacking the system against consumers in debt collection cases.

The suit, filed by the office of City Attorney Dennis Herrera late last month in San Francisco Superior Court, alleges that National Arbitration Forum, one of the nation's biggest dispute resolution companies, is biased in favor of debt collectors. It says the forum "is actually in the business of operating an arbitration mill, churning out arbitration awards in favor of debt collectors and against California consumers."

The complaint cites forum statistics showing that of 18,075 cases brought before one of its arbitrators from January 2003 to March 2007, a total of only 30 resulted in victories for consumers.

The suit touches on a matter that's become an increasing concern for consumer groups in recent years - the push by financial services companies and other businesses to impose mandatory arbitration as a substitute for lawsuits to settle disputes with customers.

If I did the math right, consumers win approximately .16 of the cases and the credit card companies and banks win...uh...99.84 of the cases. Amazing.

Plush Rocker Toys Recalled By Tek Nek Toys Due to Fall Hazard

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of Product: Rock ‘N Ride Plush Rocker Toys
Units: About 122,000
Manufacturer: Tek Nek Toys Int’l L.P., of Southlake, Texas

Hazard: The base of the rocker can become unstable and allow the rocker to tip forward or backward, posing a fall hazard to children.

Incidents/Injuries: Tek Nek Toys has received 35 reports of the rockers tipping over, including

ten reports of injuries such as bumps, bruises and lacerations.

Description: This recall involves Rock ‘N Ride plush rocker toys sold in eight models: brown pony, pink pony, pink unicorn, deluxe pony, deluxe bull, lil’ penguin, lil’ propeller plane and Clifford big red rocker. The toys have molded plastic rocker bases and were sold for children at least 18 months old and up to 65 lbs. A button on the toy’s ear, hat or dash activates songs and phrases when pressed. Rockers included in this recall have a date code from July 26, 2007 through December 29, 2007. The date codes are printed on a sticker inside the battery compartment.

Sold at: Wal-Mart, Toys “R” Us, Kmart, Target, Atwoods, and Pamida stores nationwide and Internet retailers from September 2007 through March 2008 for about $30.

Manufactured in: China

Remedy: Consumers should immediately take the rocker toys away from young children and contact Tek Nek Toys for a free replacement base.

Consumer Contact: For additional information, contact Tek Nek Toys toll-free at (888) 686-2728 anytime, or visit the firm’s Web site at www.teknektoys.com

Seinfeld unhurt after rollover car wreck

EAST HAMPTON, N.Y. - Jerry Seinfeld was in a harrowing rollover wreck but was unhurt after the brakes on one of his vintage cars failed.

Seinfeld was driving alone when the brakes on his 1967 Fiat BTM stopped working Saturday evening, East Hampton Town Police Chief Todd Sarris told the New York Post. Seinfeld tried the emergency brake, to no avail, and then swerved to keep the car from careening into an intersection, Sarris said.

The two-door sedan flipped over and came to a stop just yards from the highway, Sarris said, adding that the comic’s maneuver “probably avoided a very serious accident.”

The comedian took the crash in stride. “Because I know there are kids out there, I want to make sure they all know that driving without braking is not something I recommend, unless you have professional clown training or a comedy background, as I do,” Seinfeld said. “It is not something I plan to make a habit of.”

(I didn't know Seinfeld was 53...)

The Pillaging Continues

State Farm boosting home rates again, especially on coast, the Fort Worth Star-Telegram reports today.

"State Farm blamed the increase along the coast on the increased cost of reinsurance, which insurance companies buy to guard against the huge losses associated with hurricanes.

Galveston County residents who have both home and auto insurance through State Farm will see their rates go up by 7.9 percent, according to the Texas Department of Insurance. Those residents who have home insurance only will see their rates go up by more than 20 percent, according to the department.

The department says State Farm will take in $42 million more statewide annually because of the adjustments. By contrast, the company estimates increased revenue at $35 million to $40 million.

State Farm has 29.3 percent of the home-insurance market in Texas.

In 2003, regulators ordered the company to roll back home rates by 12 percent, but it has refused and is fighting the order in court."

Wal-Mart drops claims against injured former employee

Wonders never cease.

CNN is reporting that a former Wal-Mart employee who suffered severe brain damage in a traffic accident won't have to pay back the company for the cost of her medical care, Wal-Mart told the family Tuesday.

Eight years ago, Debbie Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.

After a tractor-trailer slammed into her minivan, the 52-year-old mother of three lost much of her short-term memory and was confined to a wheelchair. She now lives in a nursing home.

Wal-Mart's health care plan lets the retail giant recoup the cost of its expenses if an employee collects damages in a lawsuit. And Wal-Mart set out to do just that after Shank and her husband, Jim, won $1 million after suing the trucking company involved in the wreck. After legal fees, the couple received $417,000.

Wal-Mart sued the Shanks to recoup $470,000 it paid for her medical care. However, a court ruled that the company could only recoup about $275,000 -- the amount that was left in a trust fund for her care.

The Shanks appealed to the U.S. Supreme Court, but the court declined in March to hear the case. CNN told the couple's story last week, prompting thousands of angry blog responses and at least two online petitions to boycott the company.

On Tuesday, Wal-Mart said in a letter to Jim Shank that it is modifying its health care plan to allow "more discretion" in individual cases.

"We wanted you to know that Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank's care, and we will work with you to ensure the remaining amounts in the trust can be used for her ongoing care," Curran said.

"We are sorry for any additional stress this uncertainty has placed on you and your family."

On a related note, Keith Olbermann excoriates Wal-Mart here.

Props to Winter Park, Colorado

Just got back with the family from Winter Park, Colorado. What a great time. Snow was great, people were friendly, lift lines were manageable. It's been 25 years since I was last in Winter Park and I forgot what a neat ski resort it is. Certainly not stuffy or snooty like some places. Note to self: 11-year old daughter now skis better and faster than me...9-year old daughter not far behind. Next time, remember to take lots of ibuprofen.

Congress would save a lot of time and tax dollars if...

...they'd let civil lawsuits and juries take care of problems like KBR and Halliburton.

A congressional committee is investigating what role defense contractor KBR played in the accidental electrocution of at least a dozen soldiers in Iraq during the past five years. The inquiry stems from whether KBR, which is contracted to maintain housing for troops, properly repaired electrical and plumbing problems. The family of at least one soldier electrocuted in KBR-maintained housing has filed a lawsuit against the contractor.

No doubt KBR will try to hide behind some liability protection (that is, responsibility-avoidance) law set up by the Coalition Provisional Authority.

Baristas Win Lawsuit Against Starbucks Over Tips

A California judge has ruled that Starbucks Corp. must pay baristas in that state more than $100 million for forcing them to share tips with shift supervisors. San Diego Superior Court Judge Patricia Cowett also found that state law prohibits managers and supervisors from profiting from employee gratuities and issued an injunction to stop the practice. Starbucks said it plans to appeal the judge's ruling.

I hope Starbucks doesn't turn into Wal-Mart. I gotta have my daily grande non-fat latte from the store down the street. The coffee is good but I stop there because of the friendly baristas (shout out to Vikki and crew at Montgomery Plaza).

Treat the employees right and I won't have to initiate my one-man boycott like I did with Wal-Mart (whose stock plunged when I announced that I would no longer shop there).

Girl Whose Disembowelment Led To Pool Legislation Dies

OMAHA, Neb. -- A 6-year-old girl who underwent a rare transplant surgery after her intestines were sucked out in a swimming pool has died in an Omaha hospital.

Abigail Taylor's family said she died Thursday evening. Bob Bennett is an attorney for the Taylor family. He said Abigail's parents were with her when she died at Nebraska Medical Center in Omaha.

NMC's Paul Baltes confirmed to KETV NewsWatch 7 that Abigail died at the hospital, where she has been under care since the operation. Baltes was not sure whether an autopsy or exact cause of death would be released to the public.

Abigail was injured when she sat on a pool drain, and its powerful suction ripped out part of her intestinal tract on June 29. She underwent transplant surgery in December at the Nebraska hospital to receive a new small bowel, liver and pancreas.

The Minneapolis Star Tribune reported in November that Taylor's family filed suit against the pool manufacturer and the Minneapolis Golf Club.

"The suit blamed both the club, located in St. Louis Park, Minn, and Sta-Rite Industries, a pool equipment manufacturer owned by a Golden Valley company, for the accident, in which 21 feet of Abigail Taylor's small intestine were sucked out when she landed on an uncovered suction outlet in the kiddie pool in June," the paper reported.

In December, President George W. Bush signed The Virginia Graeme Baker Pool and Spa Safety Act of 2007, according to SafeKids.net. The legislation provides incentives for states to adopt comprehensive pool safety laws that will protect children from life-threatening injuries and deaths from potentially dangerous pool and spa drains.

Big Business as Usual at the Texas Supreme Court

Good editorial in today's Houston Chronicle from Alex Winslow of Texas Watch:

Recent reports paint an ugly picture of irresponsible behavior by oil and chemical companies in Texas and across the country. In response to the BP Texas City tragedy, the federal agency responsible for policing workplace safety has started a review of the safety habits of U.S. refineries. The preliminary results paint a picture of carelessness, including 11 violations at a Port Arthur refinery. Meanwhile, the chemical industry continues to thumb its nose at Mayor Bill White's call to reduce caustic benzene emissions in and around Houston.

The backdrop to all of this is Entergy v. Summers, a recent Texas Supreme Court decision allowing oil, chemical and manufacturing interests to escape accountability when they fail to ensure the safety of their work sites. When they cut corners on workplace safety, oil and chemical companies not only place their workers at risk, they also endanger the communities that surround the plants through increased chances of violent workplace and environmental disasters. The Texas Supreme Court has a chance to reconsider its position, and it should do so. In the meantime, big oil and chemical industries need to clean up their acts by putting public, workplace and environmental safety first.

$590 million for daughter, slain mom’s estate

RENO, Nev. - A jury awarded a $590 million wrongful death judgment Tuesday to the young daughter of a woman killed by her estranged husband and to the slain woman's estate.

Darren Mack, once a wealthy pawn shop owner, is serving a life sentence for the June 2006 killing of his wife and shooting of the couple's divorce judge.

Under the award in the wrongful death lawsuit, $530 million will go to the couple's young daughter, Erika, and the rest will go to the estate of his slain wife, Charla, said Hans Jessup, administrator for the Washoe County court.

Doctors cleared in actor Ritter's death

A California jury cleared a cardiologist and a radiologist Friday of negligence in the diagnosis and treatment of actor John Ritter, who died of a torn aorta in 2003.

Jurors said the majority believed the cardiologist summoned to the hospital after Ritter was diagnosed with a heart attack had no time to order a chest X-ray that might have found the tear.

They also said the radiologist, who gave Ritter a body scan two years earlier, did advise Ritter of coronary problems and to consult other doctors, but his failure to do so did not cause his death.

Follow-Up on Dennis Quaid's Kids

Actor Dennis Quaid recently appeared on "60 Minutes" to discuss his kids' medical malpractice case (follow the link to a video clip of part of his interview with Steve Kroft).

Quaid twins Thomas Boone and Zoe Grace nearly died last November at Cedars-Sinai hospital in Los Angeles when they were mistakenly given a massive drug overdose.

Quaid believes such mistakes occur too often. "They happen in every hospital in every state in this country and…I've come to find out, there's 100,000 people a year killed...in hospitals by medical mistakes," he tells Kroft. "It’s bigger than AIDS. It’s bigger than breast cancer. It’s bigger than automobile accidents and yet, no one seems to be really aware of the problem," says Quaid.

The Quaid twins were mistakenly given the drug Heparin, an adult-strength blood thinner, instead of Hep-lock, a version of the drug a thousand times weaker that’s routinely used to clear IV lines in pediatric patients. It caused the infants, who were in the hospital for a suspected infection, serious hemorrhaging. "Our kids are bleeding from everyplace that they've punctured…They were working on Boone, whose belly button would not stop bleeding…blood squirted across the room…. It was blood everywhere," recalls Quaid. "It was a life-and-death situation."

Jamie Jones' files suit against Halliburton

Jamie Jones, the young woman who alleges that she was drugged and raped by her Halliburton/KBR co-workers while she was in Iraq, has filed suit in federal court in Houston. Halliburton wants to force Jones's claims into arbitration per her employment contract, which is outrageous given the inquities of arbitration against the plaintiff.

Halliburton's attorneys argued that the contract Jones signed binds her to settle all claims - including claims of sexual assault - against her former employer through arbitration. In the next breath, they argue that her claims were not related to her employment, despite her allegations that Halliburton co-workers raped her in Halliburton barracks.

Defense attorneys also chortle over the fact that Jones has changed her story "several times." Well then, tough guys, you shouldn't fear trying her case to a jury, should you? Go win it the old fashioned way through good lawyering and tough cross-examination, not through a private arbitrator who always rules for the employer.

Truck Loses Load at I30 and Loop 12 in Dallas

NBC reporting that at least one person has been injured in Dallas when a tractor-trailer lost its load of lumber ear I-30 and Loop 12. What a mess. Photos here.

"Forget that Day in Court"

Excellent piece in yesterday's Los Angeles Times describing how arbitration is supplanting jury trials. Here's an excerpt:

Tort reform is a game of bait-and-switch in which ordinary citizens have been snookered by carefully orchestrated and relentless propaganda into seeing a phantom boogeyman in the much-reviled "trial lawyer" who brings "frivolous lawsuits" to "runaway juries" that render "out of control verdicts" in "judicial hellholes," making insurance rates and the costs of all goods and services go up. Well, none of those expenses have gone down, have they? All the while, the real target was the justice system set up by our founders to protect the average citizen, and now it is in serious peril.

Well said, Ms. Garrity.

Actor John Ritter's Family Brings Wrongful Death Lawsuit

Actor John Ritter's widow and children have brought a wrongful death lawsuit in California against a Burbank cardiologist who treated him on the day he died in September 2003. Story here.

Ritter, 54, died of torn aorta but was treated for a heart attack. The plaintiffs claim the cardiologist, Dr. Joseph Lee, should have recognized the aortic dissection and that the radiologist, Dr. Matthew Lotysch, should have detected an enlargement of the aorta in the body scan. Both doctors dispute the claims.

Of note, apparently "the Fonz" testified at trial, and John Ritter is the son of Western film star "Tex" Ritter.

At least 2 dead in 18-wheeler wreck in Dallas

NBC5i is reporting that at least two people (and possibly a third) are dead after an 18-wheeler overturned and crashed onto another vehicle at I35 and Continental Avenue in Dallas. Looks like the truck fell over a guardrail ramp and onto the lanes below. How horrific.

Plaintiffs Challenging Texas Med Mal Damage Caps

A group of 11 plaintiffs, including the family of ex-Dallas Cowboys player Ron Springs, filed suit recently in U.S. District Court in Marshall to challenge the constitutionality of the state's medical malpractice caps.

The Houston Chronicle has a story here. The article suggests that the non-economic cap of $250,000 is per defendant, which is not the case. The $250,000 cap is per claimant (including all derivative plaintiffs such as spouses and children of the injured patient), no matter how many doctors or health care providers are sued. There is - in theory - the potential to stack two limits for a $500,000 cap, but I have yet to see a scenario where that would apply...nor have I heard of any across the state. And in some lobbyist's fantasy world, there is a magical place where an injured patient could - just maybe - stack three limits for a $750,000 recovery. It'll never happen, but that was part of the snake oil the insurance lobbyists sold elected officials and voters when tort reform passed in 2003.

In any event, hats off to the plaintiffs in Marshall.

Woman who ran over cheating spouse takes former attorney to trial

Now here's an interesting twist in a bizarre case, as reported in the Houston Chronicle today:

HOUSTON -- The famous saga of a woman who killed her cheating husband by mowing him down with her luxury car returns to court Tuesday in a civil case Clara Harris filed against her former defense attorney.

Jury selection is set to begin more than three years after Harris filed a lawsuit claiming Houston attorney George Parnham overcharged to defend her in the 2003 murder trial that garnered international attention.

Harris, 50, was sentenced to 20 years in prison for running over her philandering spouse in a hotel parking lot in 2002 after confronting him with his mistress. The lawsuit claims Harris hired Parnham for $75,000 but wound up paying more than $235,000.

Lawyers for Parnham, whose list of past clients includes Andrea Yates, have argued that Harris is the one who still owes money. "She's mad about how much he charged her," said Charles Babcock, who is representing Parnham.

Opening statements are scheduled for Wednesday in the trial, which is expected to last about a week.

Medicare won't pay for hospital-caused injuries after October 1

Medicare, soon to be followed by private health insurers, will no longer pay for medical treatment of preventable injuries caused by medical errors. Medicare lists eight "hospital-caused preventable injuries," including urinary tract infections from catheters, falls, pressure sores, and embolism. After October 1st, if a Medicare patient develops one of these eight injuries, Medicare won't pay for treatment. Apparently under this plan, hospitals cannot bill the patient, either.

I don't know what to think about this. On one hand, if it truly becomes a matter of economic incentive for the hospitals, perhaps they will take more precautions to avoid these problems. On the other hand, this could lead to decreased quality of care for those patients who end up with these preventable injuries which no one is paying to treat. The number-crunchers in hospital administration might try to cut their loses by withholding appropriate and expensive care. It also seems that the patient could be caught in a tug-of-war between the hospitals and the insurers over whether or not something was preventable in the first place.

Bottom line, patients will end up getting screwed by this. Woe be to those in Texas, where the tort-deform insurance lobbyists and many of your elected representatives have just about driven the last nails into injured consumers' coffins.

Refinery Explosion in Big Spring, Texas

An Alon USA oil refinery in Big Spring exploded this morning. All workers are accounted for, according to CNN. No word yet on the environmental impact and property damage. I-20 is closed.

Something tells me explosions like this will become more commonplace. We seem to have had a rash of them lately.

Patriots Sued by Former Ram

What tha...?

A lawsuit filed Friday by a former St. Louis Rams player and others seeks millions of dollars in damages from the alleged taping of Rams practices by the New England Patriots before the 2002 Super Bowl.

The Patriots won the game 20-17 in the Superdome.

The $100 million suit, filed on behalf of former Rams player Willie Gary in U.S. District Court in New Orleans, names the Patriots, team owner Robert Kraft and head coach Bill Belichick.

Texas Pipeline Explosion

Just saw a report about multiple explosions involving gas pipelines in South Texas. The explosions occurred near the town of McCook in Hidalgo County, not far from the the U.S.- Mexico border.

Jury Sides with BNSJ in Cancer Lawsuit

FWST covers the story here.

This seemed to me to be an incredibly challenging case. The wife of a long-time BNSF employee alleged that her stomach cancer was caused by years of cleaning chemicals off her husband's work clothes. He and other workers used creosote in making railroad ties and they testified that they often went home caked in the chemical. The plaintiffs apparently presented evidence linking creosote to the wife's cancer but it wasn't enough to overcome the defense that she had a pack-a-day cigarette habit.

Tough case, particularly in Tarrant County, home of BNSF. Hats off to the plaintiffs' attorneys for teeing it up, though.

Another Tragic Truck Wreck

A Tennessee minister, his wife and their two children died when an 18-wheeler hit their van as they were driving to help families devastated by last week's tornados in that state. Michael Welch, wife Julie, 11-year old daughter Hannah and 14-year old son Jesse died when a Wal-Mart truck slammed into the back of their van and pushed it into the car in front of them. Criminal charges are pending against the Wal-Mart driver.

In an interview just a few hours prior to his death, Rev. Welch said of his and other ministers' efforts to comfort families affected by the tornadoes, "We cling to God, because He's all we've got."

Amen.

Car Hits Parked 18-Wheeler in Grapevine

Three men died when their car hit a parked 18-wheeler in Grapevine early Sunday morning. Police report that that truck was parked legally.

Next victim on Wal-Mart's path to world domination: Your local doctor

It seems Wal-Marts will now offer in-store medical clinics.

Wait a minute, folks...do you really want to get your health care at Wal-Mart? Wal-Mart? I can see it now:

"Honey, run get momma the 20 lb. bag of Wavy Lays and some Diet Coke while she's waitin' for the results of her angiogram."

Texas Trial Judges Weigh In On "Tort Reform"

Some smart professors at Baylor Law School were skeptical of all the anecdotal "evidence" used by the business and insurance lobbies to push for more restrictions on the rights of injured plaintiffs, so they decided to poll Texas trial judges about "frivolous lawsuits" and "runaway juries." Here is their conclusion, based on over 300 responses from judges across the state:

"The survey results confirm that most Texas trial judges do not see significant numbers of frivolous filings by people who have no business suing, and plaintiffs with legitimate suits are much more likely to be under compensated than to receive any windfall. Two primary goals for tort jurisprudence are for the victim to receive full compensation and to deter the tortfeasor, and when victims are not fully compensated and tortfeasors are not deterred, neither goal is met."

Amen, brothers.

Big Insurers Continue to Suck Your Blood

Just saw in the paper today that Aetna is joining Humana in deciding to no longer cover colonoscopy sedation. You can still have a colonoscopy, mind you; they just won't pay for you to be comfortable while it happens. Of course, the effect of this decision will be not just saving money by not covering sedation, but more importantly by not paying for colonoscopy procedures when more and more men say, "No sedation? No thanks."

I think I speak for most men when I say I want to be sedated out of my gourd when seeing Dr. Roto-Rooter. Aetna's spokesman wouldn't comment on this controversial decision, but was seen wiping fresh blood off of his chin.

This move by Big Insurance is symbolic on so many levels...

The American Jury: The Bulwark of Democracy

Jury service in the United States is unique among justice systems worldwide, so much so that American juries have been called the “bulwark of democracy.” In fact, our Founding Fathers believed trial by a jury of one’s peers to be of equal importance with representative government, and both concepts were integral in drafting the Declaration of Independence. Thomas Jefferson said, “I consider trial by jury as the only anchor yet devised by man by which a government can be held to the principles of its constitution.” Well over two hundred years later, Jefferson’s anchor still holds fast, despite repeated attempts to dislodge it.

But is the jury system at risk? Regretfully, yes. More and more arbitration clauses, anti-consumer legislation, and anecdotal horror stories about “frivolous lawsuits” and “out of control jury verdicts” have put a damper on the number of civil cases that go before a jury. Coincidentally, a recent nationwide poll shows that a majority of Americans do not mind jury service and view it as a privilege and an active part of democracy. It is ironic that in a time of declining access to the courthouse, most of us are willing to serve as jurors.

Quite simply, jurors level the playing field in the search for justice. My favorite fictional lawyer, Atticus Finch, says in that classic book To Kill a Mockingbird, “The only place where a man ought to get a square deal is in the courtroom.” How true. The next time you open the mail to find a jury summons, I hope you’ll take a moment to reflect on the importance of jury service and perhaps groan a little softer. And I hope your experience as a juror is rewarding and meaningful.

Judge Joe Bruce Cunningham, 1928-2008

The Tarrant County legal community lost a giant of a man last week with the death of Joe Bruce Cunningham, former judge of the 342nd District Court. Integrity, wisdom, and strength of character defined Joe Bruce on and off the bench. He was a fine man and a true gentleman.

Big rig hanging from Fort Worth freeway wall

FWST reports a tractor trailer wreck this morning at Western Center Boulevard and I35, where the rig ended up hanging over a wall near a southbound overpass. Yep, a truck hanging precariously off the side of a bridge will cause on-looker delay. North-bound folks better hope the wreck is cleared before heading home today.

John Edwards Bows Out of Presidential Race

Well, I was sorry to learn today that John Edwards has stepped out of the presidential race. I think he has a lot to offer America and I hope this is not the last time we hear from him. A good man and a heck of a trial lawyer back before he got into politics. Godspeed, John and Elizabeth.

Wreck shuts down northbound I-35W in Fort Worth

Motorists traveling Interstate 35W in south Fort Worth this afternoon should expect big delays after a wreck forced the closure of the highway’s northbound lanes, police said. Fort Worth police officials are reporting that the northbound lanes of the highway at Alta Mesa Boulevard are closed due to a jack-knifed tractor trailer that is leaking fuel. dispatcher said the wreck, reported about 2:30 p.m., involved three vehicles. MedStar was on the scene but no one had been transported to the hospital as of 3:30 p.m., officials said.

B. Michael Cummings, 1940 - 1996

Today is my Dad's birthday. He would have been 68 today. Great man, great lawyer, great mentor, great friend. I miss him.

Head-on crash in Roanoke kills 3 people

Tragic car wreck on Sunday in Roanoke left three dead, including a toddler. Apparently a driver tried to pass in a no-passing zone and hit another car head-on. Sad stuff.

FWST story here.

Happy Dr. Martin Luther King Day

If you've never read (or better yet, heard) the speeches of Dr. King, you are missing out on some incredible oratory. His "I have a dream" speech is mezmerizing. Here are some of my favorite short quotes:

"The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy."

"Injustice anywhere is a threat to justice everywhere."

"I submit to you that if a man hasn't discovered something he will die for, he isn't fit to live."

"Our lives begin to end the day we become silent about things that matter."

"It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important."

"Now, I say to you today my friends, even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: - 'We hold these truths to be self-evident, that all men are created equal.'"

"...And I've looked over, and I've seen the promised land. I may not get there with you, but I want you to know tonight that we as a people will get to the promised land. So I'm happy tonight. I'm not worried about anything. I'm not fearing any man."

(Edit. That last statment was made by Dr. King on April 3, 1968, the day before he was assissinated. Amazing.)

Fiery truck wreck shuts down I-30

Big flaming truck wreck on I-30 in east Dallas early Sunday morning (as in 4:45 am; imagine what kind of traffic jam that would have caused on a weekday). Sounds like some idiot in an SUV went the wrong way on the freeway and hit the truck. I'm sorry for the trucker and glad he got away with just bumps and bruises, but imagine if he had been in a passenger car.

Allstate Suspended by Florida Insurance Commissioner

This week, Florida Insurance Commissioner Kevin McCarty announced that he is suspending Allstate Insurance companies (corporate spokesman at right) from writing new insurance in Florida. McCarty's decision follows Allstate's refusal to comply with subpoenas served October 16 by the Office of Insurance Regulation.

The subpoenas seek disclosure of the McKinsey Documents, in which McKinsey & Co. instructed Allstate on how to systematically underpay claims starting in the mid 1990's. The content of the documents is so explosive that Allstate has already ignored a $25,000 per day fine in Missouri for its ongoing failure to provide the McKinsey Documents in that state.

Taking peoples' premiums and paying legitimate claims is called the "business of insurance." Taking peoples' premiums and refusing to pay legitimate claims is called "theft." I only wish more states' insurance commissioners and elected officials would stop these pirates. Not gonna happen here in Texas for a long, long time...

Perhaps they were burning the Constitution...

AUSTIN -- Texas Supreme Court Justice David Medina (R) and his wife were indicted Thursday in connection with an arson that destroyed their Houston-area home in June and caused extensive damage to neighboring houses. Story here.

He of the Court that has already torched the legal rights of so many injured people...

(Disclaimer: That's not his house burning in the photo there. Good shot, though.)

I'm thinking "Flying Elvises - Fort Worth Chapter"

The Library of Congress is trying to identify a number of aviation-related photos taken in Fort Worth in the early 40's (the dude on the left has quite the pompadour, considering that he's probably an Army recruit).

Check 'em out. Suddenly I remember why we call our airport "Meacham Field."

What's with all the bus wrecks?

Crews responding to multi-vehicle wreck

BY BILL MILLER
wmiller@star-telegram.com

FORT WORTH -- Emergency crews are responding to a multi-vehicle wreck, including a bus, at 3331 N. Beach St. in northeast Fort Worth, police said. At least one person was injured in the wreck, which was reported just before 8 a.m. near the intersection with Fossil Drive. The area is at the city limits shared with Haltom City. The injured person was taken to John Peter Smith Hospital in Fort Worth, a dispatcher for MedStar Ambulance Service said. It was unclear at 8:30 a.m. which agency operated the bus or how many passengers were on board.

Oklahoma Throws Out Med Mal "Tort Reform"

My hat is off to the good judges on the Oklahoma Court of Civil Appeals.

OKLAHOMA CITY -- For at least the second time in slightly more than a year, a state appeals court has told lawsuit reform proponents that they got it wrong. The Oklahoma Court of Civil Appeals has struck down a lawsuit reform statute, saying it treats medical malpractice plaintiffs differently from others who file lawsuits. The decision comes in the wake of a 2006 Oklahoma Supreme Court ruling that tossed another measure. The justices said it put medical negligence cases in a separate class from all other negligence claims and created a monetary barrier to the courts by requiring an expert witness to attest to a case's merits. The most recent decision comes just weeks before lawmakers return to the Capitol, where a renewed battle over lawsuit reform is expected. Last year, Gov. Brad Henry vetoed a controversial lawsuit reform measure, Senate Bill 507, saying several provisions were unconstitutional, unduly restricted access to the courts, and didn't do enough to curb frivolous lawsuits.

The Court of Civil Appeals decision issued Thursday said Lisa K. Jones could pursue her case in Oklahoma County for the alleged wrongful death of her husband, Michael W. Jones, who died after surgery at an Oklahoma City hospital. The trial court had tossed Jones' case after she failed to inform defendants of the suit within 180 days. The appeals court said a tort reform package passed in 2003 that required such notification treated medical malpractice plaintiffs differently. The opinion said other plaintiffs had the ability to show the court why notification was not made within 180 days but that medical negligence plaintiffs had no such opportunity. The law "holds medical negligence plaintiffs to different and stricter standards than any other plaintiffs," the opinion states.

Should I sue my doctor?

Here's an interesting article from CNN series "Empowered Patient."

Since "tort reform" passed in 2003, it's made it extremely difficult for many injured patients to find competent lawyers to file medical malpractice suits. I've lost count of how many injured folks we've had to turn away because the expenses of bringing a malpractice suit far outweigh the potential recovery because of damage caps. This article offers some suggestions on steps an aggrieved patient might take with the doctor and/or hospital to make things somewhat right.

I would add to those suggestions that patients can contact the Texas Medical Board and file a complaint against a physician. The Board, at least ostensibly, is supposed to investigate and reprimand negligent physicians.

Vote doesn't stall Mexican trucks

WASHINGTON -- The Bush administration is allowing Mexican trucks to continue to travel deep into the United States despite what critics say is a congressional mandate to ban the trucks from U.S. highways.

More here.

Driver charged in Arkansas bus crash that killed 4

LITTLE ROCK, Ark. -- The driver of a passenger bus that crashed in east Arkansas, killing four, faces four counts of felony negligent homicide after he tested positive for amphetamines, a prosecutor said.

Witness statements portrayed the driver as acting and driving erratically on the rain-slicked portion of Interstate 40 near Forrest City. The bus crossed the interstate median, colliding with a pickup truck and a tractor trailer. Three people on the bus, as well as the driver of the pickup, died from their injuries. More than 20 others suffered injuries.

Story here.

Country singer Toby Keith's family awarded $2.8M in death of dad who died in truck wreck

PURCELL, Okla. -- Toby Keith, his mother and his siblings have been awarded $2.8 million in damages in the 2001 collision that killed the country music star's father.

A jury returned the verdict against Elias Rodriguez and Pedro Rodriguez, operators of Rodriguez Transportes of Tulsa, and the Republic Western Insurance Co.

According to evidence presented at trial, a charter bus owned by the Rodriguezes was "in urgent need" of brake repairs before H.K. Covel was killed in the March 2001 accident on Interstate 35, said attorney Greg Dixon, who represented Keith's family.

The Rodriguezes had been advised of the brake problem before Covel's truck crossed the center median and struck the bus, he said.

The family initially suspected Covel suffered a medical condition that caused the truck to veer out of control. It later learned another vehicle had bumped the truck and filed a wrongful death lawsuit to clear Covel's name, Dixon said.

The verdict was returned last week. "The jury found no fault on the part of Mr. Covel in the wreck that claimed his life," Dixon said.

The plaintiffs, wife Carolyn Covel, daughter Tonni Covel and sons Toby Keith Covel and Tracey Covel, alleged that H.K. Covel would not have died if the bus had been equipped with properly working air brakes.

Here.

Truck vs. Car Wreck in Parker County

Two die in Parker County wreck
BY BILL MILLER
wmiller@star-telegram.com

Two people died early Monday when a car collided with a tractor-trailer in rural northwest Parker County, according to reports. The Texas Department of Public Safety reported that the victims were Brandon Lee Edwards, 21, of Big Spring, and Laura Elizabeth Anderson, 27, of Whitt. According to a DPS report, the collision happened at 3:30 a.m. Monday about four miles south of Whitt at the intersection of Lamkin Road and Farm Road 1885. Edwards and Anderson were northbound on Lamkin Road in a 2001 Chrysler Concorde which collided with the trailer section of the tractor-trailer which was westbound on FM 1885, according to the report.
Edwards, who was driving the Concorde, and Anderson died at the scene, the DPS said. The driver of the tractor-trailer was not hurt, according to the report.

Truck vs. Car Wreck in Wise County

Decatur collision leaves two dead
BY BILL MILLER
wmiller@star-telegram.com

Two people have died from injuries in a collision on Christmas Eve between a car and a tractor-trailer in Decatur, according to reports. Details were sketchy Tuesday, but Decatur Police records show that the collision happened at 8 p.m. on U.S. 287 in Decatur. A police dispatcher said one person died at the scene, but there was no information available Tuesday morning about the person's identity. The other person, however, died at about 2:30 a.m. at John Peter Smith Hospital in Fort Worth, according to the Tarrant County medical examiner's office.
The agency's Web site said the man's name was William Bell, but it did not list his age or address. U.S. 287 was shut down for three hours Monday night, the dispatcher said.

Four-Car Wreck on I-35W

Four-vehicle wreck on I-35W injures 3
BY BILL MILLER
dboyd@star-telegram.com
FORT WORTH -- Two people were in critical condition today after being taken from the scene of a four-vehicle wreck on Interstate 35W in far north Fort Worth, according to reports.
The wreck was reported at 5:48 a.m. in the northbound lanes of I-35W at Westport Parkway, east of Fort Worth Alliance Airport, police dispatchers said.
Three people were taken by ambulance to Harris Methodist Fort Worth hospital and two were in critical condition, a dispatcher for MedStar Ambulance Service said.
All northbound lanes of I-35W remained closed at 8:30 a.m., police said.
No other details were immediately available.

Pickup driver killed in accident with big rig

A 39-year-old Weatherford man was killed late Friday when his pickup truck plowed into an 18-wheeler on the city's west side, sheering off the top of the pickup, according to Fort Worth police. Russell Blanchard was driving east on Camp Bowie West at about 11:20 p.m. when the 18-wheeler, which had stopped at the intersection of Camp Bowie and Longvue Avenue, pulled into the intersection, said Lt. Dean Sullivan, a police spokesman. Blanchard's 2001 Toyota pickup went underneath the tractor-trailer, and the top of the pickup was sheered off, Sullivan said. Blanchard died at the scene, Sullivan said. The Tarrant County medical examiner's Web site said he died of head injuries.

Edit. Reminds me of a truck wreck case we tried a couple of years ago, in which a young man struck the rear of a stalled 18 wheeler on the freeway. Scary stuff.

Truck Accidents on the Rise

With the increased truck traffic on our roads these days, it bears repeating that in our experience prosecuting truck wreck cases, we frequently find evidence of various safety violations by either the trucking company or the truck driver or both. Falsified logbooks and hours-of-service violations, vehicles and equipment with mechanical problems, and speeding are just some of the violations that are commonly seen in these cases. Often victims of trucking accidents are left to wonder why these problems are not caught sooner, before they lead to wrecks. Needless to say, there is much room for improvement.

Let's hope we see continued investigative reporting from Dallas Morning News reporters Gregg Jones and Doug Swanson, who have written an excellent investigative series in the DMN.

Left alone, the trucking industry is not going to clean itself up, despite the many carriers and drivers who operate professionally and safely. Average citizens must demand more from our lawmakers: More meaningful oversight of the industry, more funds for enforcement, and more dangerous trucks taken off our roads.

Family sues insurer who denied teen transplant

That didn't take long.

The family of a 17-year-old girl who died hours after her health insurer reversed a decision and said it would pay for a liver transplant plans to sue the company, their attorney said Friday.

Nataline Sarkisyan died Thursday at about 6 p.m. at the University of California, Los Angeles Medical Center. Attorney Mark Geragos said he plans to ask the district attorney to press murder or manslaughter charges against Cigna HealthCare in the case. The insurer “maliciously killed her” because it did not want to bear the expense of her transplant and aftercare, Geragos said.

The family’s “loss is immeasurable, and our thoughts and prayers are with them,” Cigna said in a news release Friday. “We deeply hope that the outpouring of concern, care and love that are being expressed for Nataline’s family help them at this time,” the company said.

Edit. CIGNA's crocodile tears and solicitous statements of sympathy make me want to puke. Mark my words, though: CIGNA will skate one way or the other. They may pay some money in a settlement to try and contain the negative publicity, but they'll beat the rap through the courts or the politicians if the civil case ever goes to trial. Maybe the criminal courts are the way to get these bastards.

Teen Dies After Health Insurance Nixes Transplant

Teen dies after insurance nixes transplant
17-year-old girl needed new liver; company initially refused payment

GLENDALE, Calif. - A 17-year old died just hours after her health insurance company reversed its decision not to pay for a liver transplant that doctors said the girl needed.

Nataline Sarkisyan died at about 6 p.m. Thursday at University of California, Los Angeles Medical Center. She had been in a vegetative state for weeks, said her mother, Hilda.
"She passed away, and the insurance (company) is responsible for this," she said.

Nataline had been battling leukemia and received a bone marrow transplant from her brother. She developed a complication, however, that caused her liver to fail. Doctors at UCLA determined she needed a transplant and sent a letter to CIGNA Healthcare on Dec. 11. The Philadelphia-based health insurance company denied payment for the transplant.

On Thursday, about 150 teenagers and nurses protested outside CIGNA's office in Glendale. As the protesters rallied, the company reversed its decision and said it would approve the transplant.

Despite the reversal, CIGNA said in an e-mail statement before she died that there was a lack of medical evidence showing the procedure would work in Nataline's case.

"Our hearts go out to Nataline and her family, as they endure this terrible ordeal," the company said. " ... CIGNA HealthCare has decided to make an exception in this rare and unusual case and we will provide coverage should she proceed with the requested liver transplant."

Edit. Funny how some insurance claims manager decided the liver transplant wouldn't work for Nataline, when her UCLA doctors said it would. Once again the insurance company wins. Their insured is dead, they didn't have to pay for the expensive procedure, and the family probably can do nothing to hold CIGNA accountable in court. Perfect. Champagne corks are popping in CIGNA's boardroom.

Holiday Travel Safety Reminder

Attorneys from the Fort Worth personal injury law firm of Laird & Cummings, P.C., are reminding everyone who may be traveling on interstate highways to stay safe and smart this holiday season.

Families traveling north to celebrate the holidays with love ones this year should be particularly aware of weather-related dangers on the roads. Take precautions, and check the weather before you leave.

“The difference in road conditions can be very tricky for drivers who aren’t used to driving on icy roads or in severe weather,” says attorney John Cummings, partner in the Fort Worth personal injury law firm of Laird & Cummings, P.C. “When you combine bad driving conditions with the fact that tractor trailer drivers are trying to make it home for the holidays themselves, you can see the dangerous combination.”

Nearly 5,000 people were killed in crashes on U.S. roads involving large trucks in 2006, according to the Federal Motor Carrier Safety Administration.

The National Transportation Safety Board and other respected highway safety research groups have found that nearly 40 percent of big truck crashes are due to fatigue. Studies show that extended periods without sleep can slow reaction times by as much as 50 percent, which is the same as having a .05 percent blood alcohol level.

Laird & Cummings, P.C., is a Fort Worth, Texas, personal injury law firm that represents individuals and families in cases involving personal injury, wrongful death, trucking accidents, medical malpractice, construction site accidents, products liability and business litigation.

Referral Fees in Texas

Historically in Texas, there were no particular rules regarding the division of fees among lawyers or the payment of a referral fee from one lawyer to another for forwarding the case. In 2005, however, the Texas Supreme Court enacted new referral fee rules which do away with “pure” referral fees (those where the referring lawyer has no role in the case other than forwarding it to another lawyer). Now, referral fees in Texas must be based on either a “proportion of services” basis or a “joint responsibility” basis.

In a “proportion of services” situation, each lawyer performs substantial services on behalf of the client with respect to a particular legal matter. Each lawyer who participates in the division of the fee is required to perform services beyond simply being hired by the client and forwarding the case to another lawyer. There must be a “reasonable correlation” between services performed and the sharing of the fee between the referring lawyer and the handling lawyer.

In a “joint responsibility” situation, the referring lawyer assumes an ethical and perhaps financial responsibility for the representation. The referring lawyer must make a reasonable investigation into the client’s legal matter and refer the matter to a lawyer reasonably believed to be competent to handle it. The referring lawyer must monitor the matter throughout the representation, respond to client questions and keep the client informed of progress in the case, and assist the handling lawyer when necessary. “Joint responsibility” does not mean joint control, and the referring lawyer is not required to attend deposition or hearings or trial, or be copied on all pleadings and correspondence.

Importantly, attorneys must obtain the client’s written consent in advance regarding the basis for the referral and the division of fees. The complete rules pertaining to referral fees in Texas may be found in Rule 104 of the Texas Disciplinary Rules of Professional Conduct.

In our practice handling personal injury and wrongful death cases on a contingent-fee basis, we find that referrals on a joint responsibility basis are most common and most akin to the traditional referral fee arrangements our referring attorneys have enjoyed over the years.

Bizarre Car Wreck in Dallas

Bizarre car wreck in Dallas left one person dead today. Seems an SUV going one way lost control and hit a concrete median, causing a piece of concrete to break off the median and strike the driver's side window of a car coming from the other direction. Killed the driver of that car. Story here.

Wal-Mart Gets the Money, Taxpayers Get to Bill

This makes me seethe.

Wal-Mart employee suffers brain damage in a truck wreck, Wal-Mart's health plan pays for medical treatment (which it agreed to do when it took premiums from the employee), employee gets a $417,000 settlement from the trucking company (which is put into trust to pay for her on-going nursing home care) and now Wal-Mart sues the brain-damaged employee for the $470,000 the health plan paid plus its attorneys' fees (which, at least in Texas, the injured employee would not be able to recover from the trucking company). It's called subrogation, which is a fancy word for "insurance company screws the little guy."

The biggest corporation in the world is taking this lady's last dime, leaving her future medical care to be paid by Medicaid, which means you get to pay for it.

Watch this video and think about this the next time you decide to shop at Wal-Mart.

How to Fight Your Health Insurer

Here's a good article giving tips on how to fight your health insurance plan when your claim is rejected.

The keys seem to be persistence, documentation, and the patience of Job.

Toy Recall - Infantino "Lion" Teethers

Infantino® Recalls Infant Teethers Due to Choking Hazard

The U.S. Consumer Product Safety Commission today announced a voluntary recall of Infantino® Lion Teethers, about 28,000 of which were produced by Infantino® LLC, of San Diego, Calif.

Hazard: The plastic nose can detach, posing a choking hazard to young children.

Incidents/Injuries: Infantino® has received eight reports of the nose detaching, including one report of a child gagging on the bitten off nose.

Description: This recall involves Infantino® lion teethers. The yellow and orange plastic teethers have date codes 6116, 6129, 6158, 6137, 0606, 0806, 0906, and 1006. The date codes are located on the back of the lion’s head, above the Infantino® logo. Lion teethers with other date codes are not included in this recall.

Sold at: Babies “R” Us, Pottery Barn Kids and other specialty stores nationwide from June 2006 through December 2007 for about $5.

Remedy: Consumers should take the recalled toys away from young children immediately and contact Infantino® for a replacement teether or a product of equal value.

Consumer Contact: For additional information, contact Infantino® toll-free at (888) 808-3111 between 8 a.m. and 4 p.m. PT Monday through Friday, or visit the firm’s Web site at www.service.infantino.com

Allstate's Arrogance Is Gonna Get Expensive

Allstate refuses to turn over documents in a Missouri lawsuit which pertain to company policies "allegedly" designed to shortchange clients while earning itself huge profits. Even the Missouri Supreme Court, not exactly known as a hot bed of liberal judicial activism, orders Allstate to turn over the documents. They still refuse. So the trial judge fines Allstate $25,000 per day until the turn them over. They still refuse. This has been going on since September.

The fine currently exceeds $2.4 million. Yet Allstate's lawyers say the company will not produce these records for public view no matter how much the court fines them.

This display of arrogance and contempt towards courts and the rule of law is just mind-boggling. But perhaps most disturbing is how Allsnake will stop at nothing to screw their own insureds.

Savor the Irony

The head of the Carlyle Group buys one of 17 known copies of the Magna Carta, an ancient legal document from which Western rule of law springs, from billionaire Ross Perot for $23.1 million.

The Carlyle Group, you'll recall, is a secretive investment firm that is making a lot of very rich people richer, thanks in large part to a booming (pardon the pun) defense industry and the War on Terror. Its Washington DC offices are conveniently located between the White House and the Capitol and it employs top-tier politicians (George H.W. Bush, Colin Powell, John Major and James Baker, to name a few) to help obtain sweet deals for its investors, among them the Bin Ladin family of Saudi Arabia (yes, that Bin Ladin family).

Who needs the rule of law when you own the lawmakers? The symbolism of buying the Magna Carta just astounds me.

Amusement Park Ride Severs Girl's Legs

Remember this case from back in the summer?

A Kentucky judge will decide next week which company will perform testing on the broken cable from the ride at Six Flags Kentucky Kingdom that severed the feet of a 13-year-old Louisville girl in June. Kaitlyn Lasitter's attorneys are asking that a local company test the cable, while Six Flags "wants to award the contract" to a laboratory in Chicago.

"Award the contract" for testing the cables that cut this poor girl's feet off sounds so crass.

Family Ties

Now this fellow deserves our support. Good looks, charm, and a great name. I'd vote for him.

Mandatory Arbitration Hurts Consumers, Favors Businesses

Bills are being floated in Washington D.C. to address the growing disparity between consumers and businesses because of mandatory arbitration clauses which prevent consumers from taking disputes to a court of law.

At issue is the fine print in many contracts for goods and services, such as credit cards and cellphones, requiring that disputes be submitted to arbitration by a third party.Critics of the provisions say they deny consumers and employees a basic American principle: the right to go to court."People from all walks of life -- employees, investors, homeowners, those enrolled in HMOs, credit card holders and other consumers -- often find themselves strong-armed into mandatory arbitration agreements," said Sen. Russell D. Feingold (D-Wis.), who is sponsoring one of the measures aimed at making arbitration voluntary rather than mandatory.

Many lawmakers say mandatory arbitration has tipped the playing field in favor of businesses. Public Citizen, a Washington-based consumer watchdog group, reported that consumers won 4% of 19,000 California cases decided by one arbitration firm between January 2003 and March 2007. The study found one arbitrator who rendered 68 decisions in one day -- "one every eight minutes," said Laura MacCleery, director of the consumer advocacy group Public Citizen's Congress Watch. "Consumers won zero."

During a hearing Wednesday on Feingold's bill, Sen. Sam Brownback (R-Kan.) said, "The fact of the matter is that the little guy is, by and large, better off in arbitration than trying to get to court. Arbitration is cheaper than litigation, and it leads to faster results for plaintiffs."

Whoa there, Senator. You're either wilfully ignorant, woefully misinformed, or just flat-out being dishonest with that statement.

Judge wants wrongful death lawsuit dropped

Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals (that's the highest court in the state for criminal matters), has been named in a wrongful death lawsuit brought by the widow of Michael Wayne Richard. Richard was executed by the state on September 25th, after his lawyers tried unsuccessfully to file a last-minute appeal.

Keller contends that while she ordered the clerk's office closed promptly at 5 p.m., state law clearly gave attorneys for death row inmate Michael Wayne Richard the power to contact judges on the court directly.

In papers filed in U.S. district court in Austin, Keller said Richard's lawyers made no attempt to contact any judges on the court, even though three were available Sept. 25, the date of Richard's execution in 1986 rape and murder of Marguerite Dixon, a Houston-area mother of seven. Keller said the clerk's office was closed but the court's building remained open.

Keller has garnered national attention for refusing to extend the court's closing time prior to Richard's execution, despite calls from Richard's attorneys alerting her office they were experiencing computer problems and begging for extra time.

But in a motion to dismiss the suit, Keller said Texas law "provides a clear and unambiguous avenue for litigants to file documents with the (Court of Criminal Appeals) directly through any of its judges, so Richard did not need the CCA clerk's office to stay open after hours to file his motion." This is the first time Keller has claimed Richard's lawyers could have directly gone to other judges on the court. She previously has tried to shift blame to Richard's lawyers by saying they had all day to file.

Jim Harrington, director of the Texas Civil Rights Project, called Keller's argument "shameless" and said "The rules of procedure in the law are supposed to serve justice and here you have a case where a guy's life is at stake. It's literally a matter of life or death and to fall back on some off-the-wall assertion, 'go find a judge and file it that way' is absurd. It makes a farce of the law."

Story here.

Trucking company to pay $9 million to settle crash lawsuit

MADERA, Calif.—A trucking company will pay $9 million to the parents of two sisters who were killed in a highway accident involving one of its trucks in Madera County.

Seven-year-old Korren Radke and 2-year-old Chloe Baker of Coursegold died in June last year when a concrete pumper truck rear-ended the family car near the Rocky Cutout area on Highway 41.

The owner of the truck, Brundage-Bone Concrete Pumping, will pay the parents of the two victims to settle the wrongful death civil lawsuit in Fresno County Superior Court.

The California Highway Patrol says the truck driver was driving at an unsafe speed and was unable to stop when it hit the family car, which had stopped for a disabled vehicle on the highway.

Story here.

Med Mal "Crisis" Over-Hyped in Maryland?

Back in 2003, when the Texas Legislature bent over for the insurance lobby and capped damages on suits brought by victims of medical negligence, the justification for selling off our rights was typically some variant of a "crisis" facing doctors...too many "frivolous suits," too many "runaway juries," too high insurance premiums, too many doctors fleeing the state, etc., etc.

One of the solutions proposed by consumer groups back then was, sensibly, insurance reform. That is, the Legislature should take steps to rein in the insurers, or subsidize premiums for doctors in high-risk specialties or underserved areas, etc. Makes sense. But the insurers and the aligned big money interests wanted no part of that...don't mess with the invisible hand of the free market, they said, despite the fact that they were charging more for less coverage in order to make up for bad business decisions made along the way (losses in the stock market, poor management, and so forth). So now we have Draconian damage caps and other hurdles affecting consumers but nothing to reform or stabilize the insurance market. Nada. Zip.

Apparently the same "crisis" was hyped in Maryland several years ago, when that state's legislature contemplated ways to save their doctors. The state implemented a subsidy paid to the insurers to help the docs manage the higher premiums, the same proposal that went over like a lead balloon here in Texas.

The Washington Post reports that Gov. Martin O'Malley (D) now has concerns that his predecessor, Gov. Robert L. Ehrlich, Jr. (R), might have exaggerated the economic hardship facing doctors when he called the General Assembly into emergency session in 2004 to fix what he called a malpractice "crisis." In the midst of a downward economic cycle for the insurers, a "crisis" was fabricated in order to ram "reform" through the statehouse.

Sounds oddly familiar. Unfortunately for Texans, it won't be so easy to repair the damage done to our rights. Getting legislators on board to repeal subsidies to insurance companies is a no-brainer; getting them on board to restore patients' rights at the courthouse is another matter entirely.

Family of Madison teen killed in crash settles for $18.3 million

WATERBURY, Conn. - Attorneys say the family of a Madison teen killed nearly six years ago in a car accident is to receive an $18.3 million settlement. Seventeen-year-old Tim Orefice was killed in Guilford on Jan. 25, 2002. The teen's car was hit by a Guilford Texaco tow truck driven by Jason Secondino. Secondino, Guilford Texaco, and the company which leased the truck to Guilford Texaco, were all sued in the case that went to trial in October at Waterbury Superior Court. A lawyer says the settlement was reached on the day before closing arguments. An attorney for the family says the award came years after the Orefice family proposed a $1 million settlement that the defendants refused.

Obviously, that jury must have seen some baaaaad evidence and the plaintiff's lawyers were ready to put on a whale of a closing argument. Wonder if it was the defendants or their insurance company who decided to refuse the earlier offer?

Halliburton Is Truly Above the Law

A female employee of Halliburton/KBR, Jamie Leigh Jones of Houston, says she was gang-raped by several male co-employees while working in Iraq. Medical tests confirmed the attacks, but the rape kits were mysteriously lost after being turned over to Halliburton "security officers."

Over two years later, no criminal charges have been brought nor are any likely due to an enormous loophole that has effectively left contractors in Iraq beyond the reach of United States law.

Jones recently filed a civil suit against Halliburton/KBR over the rapes. The defendants want to force Jones's claims into closed, private arbitration rather than let a jury hear the case and assess the damages. In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it.

It seems Halliburton is continuing to rape this poor young woman.

Lawmakers ask court to reverse liability claims ruling

Follow up to my previous post. From reporter Clay Robinson at the Houston Chronicle, regarding the Entergy opinion written by Justice Willett:

In an unusual move, four legislators have asked the Texas Supreme Court to reverse a recent decision that, critics say, gives refineries and other industrial plants a new shield against liability claims from contract workers injured on the job.

The ruling contradicted the law, said two Democrats — Rep. Craig Eiland of Galveston and Sen. Rodney Ellis of Houston — and two Republicans — Sen. Jeff Wentworth of San Antonio and Rep. Bryan Hughes of Mineola — in a brief filed with the all-Republican court.

"This Court, by disregarding the express terms of the Legislature's enactments, has violated the separation of powers clause of the Texas Constitution and impermissibly encroached on the powers and functions expressly reserved to the Legislature," the lawmakers argued.

Edit. This brings to mind the study by a University of Texas law professor who found that lawsuit defendants — often businesses like Entergy — won 87 percent of the time when they took their cases to the Texas Supreme Court during its 2004-05 term.

"Judicial Activism" in the Eye of the Beholder?

Interesting. President Bush endorses Texas Supreme Court Justice Don Willett by saying "he is a proven conservative who understands courts should interpret and apply law, not legislate from the bench." Yet Justice Willett authors a recent opinion - joined by the other eight justices - that "offends not only the law, but also court precedent, legislative intent, reason, custom and common notions of justice" in order to side with big business. As the Houston Chronicle points out, this ruling "makes the justices guilty of blatant judicial activism, which many conservatives regard as an unpardonable sin."

Guess it depends on whose interests one is protecting...

Debunking the "Stella Awards"

The "Stella Awards" that make the email rounds every now and then are lies, my friends. Ask yourself who would have an incentive to create this garbage.

Houston Chronicle columnist Rick Casey concludes with these statements:

Here's the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations. One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."

Well said.

Dennis Quaid and Wife Sue Drug Maker

Actor Dennis Quaid and his wife sued the makers of heparin Tuesday after their newborn twins were inadvertently given massive doses of the blood thinner at a hospital. The product liability lawsuit, filed in Chicago, seeks more than $50,000 in damages. It claims that Baxter Healthcare Corp., based in Deerfield, Ill., was negligent in packaging different doses of the product in similar vials with blue backgrounds. The lawsuit also says the company should have recalled the large-dosage vials after overdoses killed three children at an Indianapolis hospital last year.

The Quaids' children, Thomas Boone and Zoe Grace, and a third patient were at Cedars-Sinai Medical Center on Nov. 18 when they were mistakenly given vials of heparin that were 1,000 times stronger than the usual dosage.

Cedars-Sinai said Tuesday the mistake occurred when two pharmacy technicians failed to verify the vials' concentration before placing them in the pediatrics unit where the lower-concentration heparin is kept. The nurses who administered the drug also failed to check the dosage, the hospital said in a news release.

Link.

Who Gets Hurt Most by "Tort Reform?"

Women, children, the elderly, minorities and those who are less-affluent, according to a study done by two professors at Emory University. Here is the abstract to the article:

"Tort reform may not affect all segments of society equally. Studies have shown that many tort reforms disproportionately reduce compensation to women, children, the elderly, disadvantaged minorities, and less affluent people. This study goes beyond tort reform's disproportionate effect on compensation, to explore whether tort reform also has a disproportionate effect on accidental death rates. We explain that, theoretically, tort reform's care-level effects and activity-level effects may disproportionately impact the accident rates of different groups. Using the most accurate, comprehensive data on medical malpractice tort reforms and state-level data from 1980-2000, we examine empirically whether tort reforms indeed have such a disproportionate effect. The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform's benefits as much as men and middle-aged people. In fact, they might even be harmed by reform."

Rush Hour in Fort Worth (circa 1955)

A buddy just sent me this cool photo of 7th Street looking west. You can see Montgomery Plaza in the distance. Cars seemed awfully bubble-shaped back then.

On Thrill Rides, Safety Is Optional

Good article about the dangers of amusement park rides.

Hey, I'm not opposed to the well-run outfits, but even the most-professionally run parks have had some problems. What really scares me to death are the traveling carnivals that set up in mall parking lots, at county fairs, and such. I worked on a case years ago involving a machine called the "Gravitron" at a state fair. It broke apart and spun kids all over the midway. Seems the carny who assembled the ride had not followed the set-up procedure in the instruction manual...then we learned during his deposition that the carny could not read.

Why such little safety oversight by the government? Follow the money (see the industry's lobbying efforts described on page 3 of the article).

If you're interested, this consumer safety organization deserves a look.

Changing Minds, One at a Time

A grown man sat in my office last week and cried like a baby. He had buried his wife and their first child less than a month earlier, both the victims of medical negligence. He came to us for help, wanting answers to why his young, healthy wife and his unborn son are now gone. He struggled to simply breathe. I thought of my wife and my two girls and I cried, too.

What do you say to a fellow like this? I confess that I was at a loss. Once we plaintiff lawyers could at least offer some comfort, inadequate as it was, that the civil justice system might provide answers and maybe, just maybe, some attempt at compensation. Now I had to explain that politicians in Austin have already decided what his loss is worth. I had to tell him that because his beautiful wife and the son that was to bear his name were the victims of medical negligence, the courthouse doors had been closed by the very people who represent his family in the Capitol.

Do you know what was most frustrating about this scenario? This man had not voted on Proposition 12 and had no idea of the damage that it did to the Texas Constitution. Before this tragedy befell him, he was one of the thousands of uninformed, misinformed or indifferent Texans who did not understand what HB 4 and Proposition 12 really did to their rights. He knows the truth now, unfortunately.

So what can we trial lawyers do about this ? Speak up. Educate others. Make sure your families, friends and clients are registered to vote and that they do vote. Get involved with your elected representatives. Let them know that we will hold them accountable for the promises made when they stripped away our rights. When you turn down cases that are no longer economical due to "tort reform," make sure the potential clients know how to contact their senators and representatives in Austin, because odds are they voted in favor of HB 4.

And above all, keep fighting. Fight for victims. Fight for justice. Fight the negative stereotypes about trial lawyers and the "tort reform" propaganda. Fight for what is right and never, ever give up.

Arkansas Bus Wreck Injures 40, Kills 3

Terrible tragedy on I40 in Arkansas.

(CNN) -- A bus hopped a highway median and crashed into a pickup truck before being broadsided by an 18-wheeler, Arkansas police said, killing the pickup driver and two bus riders.

Forty people were hurt in Sunday night's crash, which shut down a 13-mile stretch of Interstate-40 east of Forrest City, Arkansas, said state police spokesman Bill Sadler.

The bus was westbound en route from Chicago, Illinois, to Dallas, Texas.

Truck Wreck in Bedford

As if 183 weren't bad enough already.

For those of you stuck on it yesterday, here's why.

Gas Well Explosion in Alvarado

Story here.

With all the wells around these parts, it's a wonder there haven't been more tragedies. Fortunately for these three workers, it sounds like they'll be okay.

Texas House District 97 Voters, Dan Barrett's Your Man

Okay, folks...shameless plug for a friend of mine.

Dan Barrett is in the run-off for District 97 (SW Fort Worth, Benbrook, Edgecliff Village, Crowley) to replace former Rep. Anna Mowery.

I know Dan. He is a man of integrity, intelligence and determination. He will show thoughtful independence and principled leadership in Austin.

His opponent has pledged blind support to Der Speaker Craddick (he of "absolute power") and unwavering support of school vouchers.

Folks in District 97, if you want a representative who will speak up for your community, your neighbors, your schools and this fair city, vote for Dan Barrett on Saturday, December 18th.

Check out Dan's website here.

Professor Laird's Playbook - Using Video Depositions at Trial

More and more these days, witnesses are presented at trial through video deposition excerpts, either by necessity because they are unavailable at trial (out-of-state witnesses, treating physicians, etc.) or by choice (to streamline the case or in situations where an adverse witness’s testimony will never get better than it was at deposition).

Some tips:

• Keep the video edits as short as possible, 15 minutes or less if possible. Don’t just pop the entire video in and hit “play.”
• Hire a good video editor. Get the edits on VHS and DVD formats.
• Have a copy of the edits and a written page/line designation to give to the court reporter for the record. It will save him or her from having to record the testimony at trial.
• Ask the judge in pretrial to instruct the jury that they will see and hear video deposition testimony, which is meant to speed the trial and which is to be given the same weight as if the witness was live at trial.
• Ask the judge to point out that the lawyers have edited the videos with the judge’s approval (here in Tarrant County, at least, the parties have to exchange designate portions of the depos they wish to use at trial and the court rules on objections to those designations prior to trial). Often the editing causes the image on the screen to jump around a bit or cut off a word or two. I had one juror tell me after trial that this made her suspicious that the attorneys were trying to pull a fast one on the jury by splicing the testimony. Get the judge to explain this before your jurors draw that conclusion in their minds!
• Think about the timing of showing your video depos. Consider interspersing them in between live witnesses. Be careful about showing them right after lunch or at the end of the day.
• As much as possible, coordinate your video edits with those to be shown by the other side. Jurors don’t like hearing the same testimony again when the defense offers their tender right after the plaintiff shows his.
• When taking the deposition, keep in mind that the jury may later see the video and they may compare your dress and demeanor during deposition with that at trial. For example, if you tone down your usual jewelry when you’re in trial, don’t forget to take off that flashy watch during the depo. Don’t be a jerk in deposition and then a choirboy in trial.
• In a lengthy trial, take a still shot of the witness’s face from the video depo and blow it up or show it on an ELMO during closing argument to remind the jurors of the witness.

Clearly, there is no substitute for a live witness. However, when done right, video depos can be effective and time-saving, so long as they are not too long and are not overused.

Unfrozen Caveman Lawyer Revisited

A buddy reminded me of another great closing argument delivered by Unfrozen Caveman Lawyer. Pure gold.

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! . . . When I see my image on the security camera at the country club, I wonder, are they stealing my soul? I get so upset, I hop out of my Range Rover, and run across the fairway to the clubhouse, where I get Carlos to make me one of those martinis he's so famous for, to soothe my primitive caveman brain. But whatever world you're from, I do know one thing--in the 20 years from March 22, 1972, when he first ordered that extra nicotine be put into his product, until February 25, 1992, when he issued an interoffice memorandum stopping the addition of that nicotine, my client was legally insane."

Heard Gets Life in Prison

Jurors just returned a sentence of life in prison rather than the death penalty for Lance Heard, who was convicted earlier this week of capital murder in the shooting death of Fort Worth police officer Hank Nava.

I don't practice criminal law and I don't weigh in with opinions on most criminal trials because their courtrooms are not mine. But I've followed this murder trial pretty closely because I have friends on all sides of that case, including the police officer who eulogized Nava at his funeral and the lead defense attorney. Talk about being at opposite ends of the spectrum.

Regardless of one's views on criminal defense lawyers, or the death penalty, or the justice system, or the police, or whatever, this was a fascinating, hard-fought trial. My hat goes off to the attorneys, the judge, and especially the jurors.

Unfrozen Caveman Lawyer

Man, I loved Phil Hartman.

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and later got thawed out by some of your scientists. Your world frightens and confuses me! Sometimes the honking horns of your traffic make me want to get out of my BMW.. and run off into the hills, or wherever.. Sometimes when I get a message on my fax machine, I wonder: 'Did little demons get inside and type it?' I don't know! My primitive mind can't grasp these concepts. But there is one thing I do know - when a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than two million in compensatory damages, and two million in punitive damages. Thank you."

Another child disembowled by a pool drain

This sort of story scares me to death.

MINNEAPOLIS — The family of a 6-year-old girl who lost part of her intestinal tract after sitting on an open drain in a wading pool is suing the pool manufacturer and the country club where the accident happened.

Abigail Taylor faces a small intestine transplant that will keep her hospitalized for six months, said family attorney Robert Bennett. Her lifetime medical expenses could total $30 million and the country club carries only $6 million in liability insurance, he said.

Edit. This poor child's intestines were sucked out of her rectum by an uncovered pool drain, a danger known within the industry for years (Sen. John Edwards, in his previous life as a trial lawyer, handled a similar case in North Carolina some time ago). To the "tort deformers" out there, I say look that little girl and her parents in their eyes and tell them her case is frivolous.

Each Year, 30,000 Truckers Test Positive for Drugs/Alcohol

And those are just the ones who get caught.

I've said it before and I'll say it again: Good truck drivers are among the safest, most-professional, most-skilled drivers on the roads today, and my hat is off to them for doing a tough job well. But the bad apples among them are getting away with murder, thanks to lax oversight, over-burdened enforcement personnel, carrier indifference, and economic pressure.

DFW is one of the largest inland ports of commerce in America, with thousands of trucks plying our roads every hour. A meth-head driving a 40-ton tractor/trailer can really ruin your day, my friends.