PG&E’s Legal Exposure to Liability for Fires Could Cost Customers – Or Lead to Bankruptcy

If Pacific Gas and Electric Company is found liable for the devastating California fires now burning, the company’s customers could be on the hook to pay the bill, or even lead to a PG&E bankruptcy, according to The New York Times.

“Many fires in recent years have been caused by downed power lines serving California’s utilities. State officials have determined that electrical equipment owned by PG&E, including power lines and poles, was responsible for at least 17 of 21 major fires in Northern California last fall. In eight of those cases, they referred the findings to prosecutors over possible violations of state law,” write Times reporters Ivan Penn and Peter Eavis.

Some victims of the latest fires have sued PG&E, alleging negligence and health and safety code violations by the utility company.

Read the NY Times article.



Attorney’s Eye-Popping $460,000 in Earnings to Defend Indigent Clients Prompting Changes

A Texas county is adding more controls after fees to an attorney representing indigent clients this past fiscal year topped $460,000 — more than double the amount of any other court-appointed lawyer in Collin County, reports The Dallas Morning News.

Attorney Marc Fratter, 46, also earned significantly more than anyone on the county payroll, including the district judges who approved his pay sheets, according to reporter Valerie Wigglesworth.

“Fratter said he put in long hours — billing as much as 100 hours a week at times — with his one-man firm handling the workload of as many as six attorneys. He pointed to judges’ signatures on all of his pay sheets. “I’m not hiding anything,” he said.

Read the Dallas News article.



Werner Co. Hit with $4.8M Jury Verdict for Defective Ladder

Jurors have returned a $4.8 million verdict against Greenville, Pennsylvania-based Werner Co., finding the ladder company liable for the faulty design and marketing of an aluminum ladder that collapsed, permanently injuring a Lewisville, Texas man.

According to a release from Androvett Legal Media & Marketing, the jury in Denton County District Court determined that the company knew of problems with the Werner Model 354 Type II ladder and was negligent in not warning consumers of the risks when using it. The jury deliberated for a day and a half before reaching its verdict, awarding approximately $1.2 million for past damages and $3.6 million for future damages to John DeVallee.

“In mediation, Werner’s initial offer was $150,000,” said Joe Fisher, partner at Beaumont-based Provost Umphrey L.L.P., who represented DeVallee. “They said they would not offer any more because they’ve won 60-plus trials in a row.”

DeVallee, 46, was severely injured in 2011 after one of the ladder legs bent inward – a known falling hazard associated with this type of ladder. The fall led to crushing injuries to DeVallee’s arm and wrist and left him without use of his dominant hand for the rest of his life.

Fisher selected the jury and then turned over the rest of the case to fellow Provost Umphrey partner Edward Fisher and attorney Brian Zimmerman of Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. David L. Cook of Harris Cook LLP was also part of the trial team and was instrumental in securing the verdict.

“In essence, the jury saw that Werner – through its negligence – pretty much cut off John’s dominant hand,” said Edward Fisher. “That’s a lifetime injury that will require continued medical care and treatment and that, unfortunately, cannot be repaired. No one should have to deal with something such as that simply because they were working on a four-foot tall step ladder.”

The case is J. Devallee v. Werner Co., Case No. 2011-40709-362 in the 442nd District Court of Denton County.



Oklahoma Jury Hits Health Insurer Aetna with $25.5 Million Verdict

The Oklahoman reports that jurors wanted to send a message to health insurer Aetna after hearing how the company’s overworked doctors denied an Oklahoma cancer patient’s claim for coverage for proton beam therapy.

Reporter Nolan Clay writes that jurors awarded $25.5 million to the patient’s estate and to her husband, a retired Oklahoma City firefighter, in the bad-faith case against the company.

The patient, Orrana Cunningham, died in 2015 from a viral outbreak after getting treatment for the tumor in her head and returning home. She was 54.

Read the Oklahoman article.



Review the Newest Volume of Ediscovery Case Law Summaries (Fall 2018)

Zapproved has published the new Fall 2018 Ediscovery Case Law Summaries. This new edition explores how recent spoliation, proportionality, and other ediscovery-relevant case decisions are guiding litigation.

This free volume, which can be downloaded from Zapproved’s website, includes 12 full summaries, plus brief abstracts of case law from the last 10 years.

The new summaries are:

  • World Trade Ctrs. Assoc., Inc. v. Port Auth. of N.Y. & N.J.
  • BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc.
  • EPAC Techs., Inc. v. HarperCollins Christian Publ’g, Inc.
  • De Simone v. VSL Pharms., Inc.
  • Elliott-Thomas v. Smith
  • GoPro, Inc. v. 360Heros, Inc.
  • Nece v. Quicken Loans, Inc.
  • The Physicians Alliance Corp. v. WellCare Health Ins. of Ariz., Inc.
  • Cen Com, Inc. v. Numerex Corp.
  • Equal Emp’t Opportunity Comm’n v. FedEx Ground Package Sys., Inc.
  • In re Simply Orange Orange Juice Mktg. & Sales Practices Litig.
  • Johnson v. Ford Motor Co.

Download the summaries.



Lawsuit Claims El Paso Doctor, Lawyer Conspired to Violate State Law

An El Paso neurosurgeon is the subject of a lawsuit filed last week, accused of unlawfully conspiring with a local attorney to solicit legal representation for a dying truck wreck victim, according to a release from Androvett Legal Media & Marketing.

The lawsuit, filed by El Paso resident Karla Triana, claims that while her mother was undergoing emergency surgery at Del Sol Medical Center, Dr. Bratislav Velimirovic handed her a lawyer’s business card and urged her to contact the attorney. Triana’s mother died as a result of her injuries.

Triana subsequently received a call and text message on her personal cell phone from an employee in the office of the attorney, Victor J. Bieganowski, indicating that he sought to represent her in a civil claim against the trucking company.

“It’s clear that the doctor and the attorney are breaking the law by working together to solicit legal representation of accident victims and their families,” says attorney Tom Carse of Dallas. Carse handles cases involving charges of unlawful representation, known as barratry, against other attorneys, according to the release.

“It’s logical to think this was not an isolated incident, and that there may be more instances of this conspiracy still to be uncovered.”

The release states that Bieganowski was convicted in 2000 on federal charges for his role in a massive medical and legal fraud, and received a 30-month prison sentence and a fine of $375,000. He was disbarred, but subsequently regained his law license. The fraud charges involved claims against union officials for funneling the cases of injured workers to Bieganowski’s legal practice and the medical practice of his brother, Dr. Arthur Bieganowski.

Dr. Velimirovic is a partner in Neurosurgical Specialists of El Paso. According to the clinic’s website he is a “board-certified neurosurgeon who utilizes advanced techniques to perform minimally invasive spine surgery, cranial surgery and interventional radiologic procedures.”



The Supreme Court Power Index: Judging the Most Powerful Judges

U.S. Supreme CourtA new study by Above the Law takes a unique approach to ranking the influence and impact of justices of the U.S. Supreme Court by rating them based on the career success of their former clerks.

“Today’s Supreme Court clerks are tomorrow’s Supreme Court justices. They are tomorrow’s attorneys general and United States attorneys.” explains executive editor Elie Mystal. “They are tomorrow’s law professors and corporate GCs. Former Supreme Court clerks are incredibly powerful people in their own right, and they received their final training from a Supreme Court justice.”

The study covers former justices as well as current members of the court. That’s why, for example, Sandra Day O’Connor, Anthony Kennedy and the late Thurgood Marshall score high in the rankings. The study focuses on four categories: the judiciary, Biglaw, academia and government.

Read the Above the Law article.



Suit Alleges Trump Endorsements Misled Consumers and Defrauded Investors

The ABA Journal reports that a would-be class action suit filed against President Donald Trump alleges he engaged in a scheme to defraud investors by promoting three companies that charged people to sell their products and learn about business opportunities, while failing to disclose the financial risk of the buy-in.

Reporter Debra Cassens Weiss writes that the suit alleges Trump didn’t disclose that he was “lavishly paid” for the endorsements, and instead led consumers to believe that his backing was based on due diligence, inside information and personal experience with the companies.

Defendants include Trump, the Trump Organization and children Donald Trump Jr., Eric Trump and Ivanka Trump.

Read the ABA Journal article.



Argument Preview: How Should Courts Decide If Parties to an Arbitration Contract May Aggregate Their Claims?

SCOTUSblog reports that in Lamps Plus Inc. v. Varela, the U.S. Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer consented to class arbitration.

The employer in that case included language in the arbitration contract that committed the parties to use arbitration “in lieu of any and all lawsuits or other civil legal proceedings,” specified that arbitral claims include those “that, in the absence of this Agreement, would have been available to the parties by law,” and authorized the arbitrator to “award any remedy allowed by applicable law.”

Lower courts have found that the arbitration agreement could be read to authorize class arbitration, and that California contract law called for ambiguity on that point to be resolved against the contract’s drafter, Lamps Plus, writes Charlotte Garden.

Read the article.




Contract Case: Lack of Consideration – Or Not!

Money-payment-cashWriting in ContractsProf Blog, Myanna Dellinger discusses a case that “nicely demonstrates how the consideration doctrine is still relevant and, as always, the importance of getting contracts in writing even though they do not have to be.”

The plaintiff had agreed to do some work for the defendant for $10 an hour, with the understanding that he would receive a $150,000 bonus after nine months. Somewhere along the way, the employer gave him a raise to $11, and then, after a total of 18 months of labor, fired him and refused to pay the bonus.

Dellinger explains that the court apparently found that because the plaintiff actually received one single dollar more per hour over nine months, there was no consideration for the original promise of working for a “reduced salary.”

Read the article.




Company Couldn’t Cut Disabled Worker’s Benefits, So It ‘Went Rogue’ and Had Him Arrested, Lawyer Says

Over the past 15 years, Key Risk Insurance Co. has made multiple trips to courts and before the North Carolina Industrial Commission to argue that Mario Seguro-Suarez has been faking his symptoms from an on-the-job injury and that his benefits should be cut off.

The Charlotte Observer reports documents show that the company disregarded years of medical opinions — including several from its own doctors — that Seguro-Suarez was indeed left disabled from his fall at a Southern Fiber factory. The 2003 head-first fall from 18 feet onto a concrete floor left him disabled.

After years of failing to cut off payments to Seguro-Suarez, the insurance company’s private detective “took what a detective would describe as misleading information to Lincolnton police to accuse Seguro-Suarez of insurance fraud. He was arrested, jailed and later indicted,” reporter Michael Gordon writes.

That attempt drew a withering rebuke from a judge, and now Seguro-Suarez is suing for malicious prosecution.

Read the Charlotte Observer article.




Former Foley & Lardner Partner Suspended for Falsifying Documents in IRS Audit of Wealthy Clients

A former Foley & Lardner partner was suspended two years by the state Supreme Court for lying to the IRS during an audit of two wealthy estates connected to a major area business, reports the Milwaukee Journal Sentinel.

“The firm fired Adam Wiensch, 55, in 2016 when it learned he had falsified documents related to the transfer of wealth from the owners of Carma Laboratories to their children, a move that attempted to save the family millions in taxes,” writes the Journal Sentinel‘s Bruce Vielmetti.

The court’s opinion recounts Wiensch’s earlier testimony that he had been facing “several highly disruptive and personal” issues at the time of his offenses, and was dealing with depression and alcoholism.

Read the Journal Sentinel article.



Conservative Group Suspends Clerkship Boot Camp After Questions About Secrecy and Loyalty Pledges

The New York Times reports on the Heritage Foundation’s “Federal Clerkship Training Academy,” which required applicants to keep the training materials secret and to pledge that they wouldn’t use any of the training materials “for any purpose contrary to the mission or interest of the Heritage Foundation.”

The report by Adam Liptak says application materials told prospective clerks that “generous donors” were making “a significant financial investment in each and every attendee.”

“But legal experts said the effort by Heritage to train and influence law clerks raised serious ethical questions and could undermine the duties the clerks have to the justice system and to the judges they will serve,” according to Liptak.

A few hours after the Times report went online, the foundation announced that it was suspending the program.

Read the NY Times article.



Florida Supreme Court Foils Governor’s Plan to Pick New Justices

The Associated Press reports that Florida’s next governor and not incumbent Gov. Rick Scott will get to pick three new justices to the state Supreme Court, the court ruled in a decision with major implications in this year’s gubernatorial campaign.

“In a major rebuke to Scott, the Supreme Court concluded that the Republican governor exceeded his authority when he started the process to find replacements for the three justices,” the AP reports.

Because of age limits of 70, three justices must retire at midnight Jan. 8, the same day Scott is scheduled to leave the governor’s office. Scott, claiming he had authority to name the replacements, last month asked a nominating commission to start accepting applications with a Nov. 10 deadline.

Read the AP article.



Firms Cite 1851 Law in Fatal Missouri Duck Boat Accident, Seek Mediation

Two companies facing multiple lawsuits over a summer tourist boat accident in Missouri that killed 17 people have invoked an 1851 law that allows vessel owners to try to avoid or limit legal damages as they also seek settlement negotiations with victims’ family members, reports the Chicago Tribune.

“If a judge concluded that the federal law cited by Ripley [Entertainment Inc.] and Branson Duck Vehicles applies, claims for damages over the July 19 accident on Table Rock Lake near Branson, Missouri, could be consolidated into a single federal court case,” explains the article, from the Associated Press. “The companies’ petition states that under the federal law, they would not owe any damages because the boat carried no freight and was a total loss.”

Read the Chicago Tribune article.



Champagne Remark May Cost Lawyer $289 Million Bayer Award

The lawyer most responsible for winning a $289 million verdict against Bayer AG may end up wiping it out, according to a Bloomberg Law report.

Brent Wisner, the lead trial attorney who in August convinced a jury that Monsanto Co.’s Roundup weed killer caused his client’s cancer, irked the judge handling the case so profoundly that she’s considering tossing the verdict and ordering a new trial.

From the Bloomberg report: “The lawyer told jurors that Monsanto executives in a company board room were ‘waiting for the phone to ring’ and that ‘behind them is a bunch of champagne on ice,’ according to a court filing. He said that ‘if the damages number isn’t significant enough, champagne corks will pop.’”

Read the Bloomberg Law article.



Recent Oil and Gas Verdict Highlights Importance of FLSA Compliance

A recent case from the United States District Court for the Western District of Pennsylvania highlights how expensive a Fair Labor Standards Act case can be when an employee prevails for unpaid overtime compensation, writes Jay Carr in Vorys, Sater, Seymour and Pease’s Energy & Environmental Law Blog.

The article describes Sammy Mozingo v. Oil States Energy Services L.L.C., in which oil field workers in Texas filed a class action alleging that their employer Oil States had misclassified them as exempt from overtime laws. Most of the employees settled, but eight went to trial, resulting in Oil States paying damages, fees, and costs totaling $3,385,884 for just these eight employees.

Read the article.




Discrimination Defense Lawyer Confirmed for Trump Civil Rights Post

Bloomberg Law reports that the U.S. Senate has confirmed Eric Dreiband, a Jones Day attorney who defends companies accused of discrimination, to lead the Justice Department office that enforces anti-bias laws and investigates police civil rights cases.

“Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed ‘bathroom bill,’ requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates,” writes Bloomberg’s Chris Opfer. “He also won a case for R.J. Reynolds Tobacco that made it harder for workers to sue for age discrimination under federal law.”

Read the Bloomberg Law article.



Texas Lawyer Who Claimed Political Donations Influenced Appeal Faces Possible Discipline

Plaintiffs’ lawyer John McCraw of Dallas is facing possible disciplinary action because he filed a motion asking two appellate court justices to remove themselves from a case, implying that the pair voted to overturn his clients’ $1 million jury verdict because of donations they’d received from two political action committees.

Dallas Observer reports that the justices not only declined to recuse themselves, they and their fellow justices sent McCraw’s name to the general counsel of the State Bar of Texas for possible disciplinary action for insulting the court.

A three-judge panel of the 5th Court of Appeals had overturned a $1 million award to McCraw’s clients, two women who had sued their apartment owner after an intruder entered through a window and violently assaulted both women.

Reporter Nashwa Bawab writes: “McCraw asked the entire 13-member appeals court to reconsider — minus Justices Craig Stoddart and Molly Francis, two of the three judges who unanimously voted to overturn the verdict. Stoddart and Francis each received $2,000 from the Texans for Lawsuit Reform PAC and the Apartment Association of Greater Dallas PAC a few days apart from each other and less than a month before they were assigned the case.”

Read the Dallas Observer article.




Contracting Around Class Actions, a Win for Employers

A recent Ninth Circuit ruling that Uber’s arbitration agreements did not violate the National Labor Relations Act provides a major victory to Uber by requiring each plaintiff to separately arbitrate his or her claims.

Christine M. Fitzgerald, writing in the Jackson Lewis California Workplace Law Blog, explains that plaintiffs filed a putative class action against Uber for failure to remit gratuity paid by customers, and for misclassification of the drivers as independent contractors and failing to pay their business expenses. The O’Connor plaintiffs sought an order declaring Uber’s 2013 arbitration agreements unconscionable.

The panel rejected plaintiffs’ argument that the lead plaintiffs constructively opted out of arbitration on behalf of the entire class.

Read the article.