The Dallas-based law firm Fears Nachawati has been retained by the Calvert County Board of County Commissioners in Maryland to pursue a lawsuit against opioid manufacturers and distributors over their role in the epidemic of addiction to these painkillers, the firm said in a release.

Representing the southern Maryland county is a legal consortium that features Matthew McCarley and Jonathan Novak of Fears Nachawati, along with attorneys from Ferrer, Poirot & Wansbrough in Dallas; Motley Rice in Washington, D.C.; and The Kane Law Group and McNamee, Hosea, Jernigan, Kim Greenan & Lynch in Maryland.

Just southeast of the Washington, D.C., metropolitan area, Calvert County has seen its public resources overburdened by the societal, health and public safety demands created by the reckless proliferation of prescription opioids, plaintiffs say.

“The opioid epidemic has continued at a horrifying pace, taking a tremendous human toll and creating intense financial and social services pressures on local governments such as Calvert County,” said McCarley. “There is no single, simple solution, but recovery cannot begin until those who knowingly created the problem are held responsible for their actions.”

Fears Nachawati currently represents 61 counties, cities and hospital systems in Texas, Florida, Kentucky, Maryland, Mississippi, New Mexico and North Dakota in lawsuits seeking to hold 30 of the nation’s largest pharmaceutical manufacturers and distributors liable for their role in the opioid addiction crisis that resulted from deceptive and illegal marketing schemes.

“While we fight to recover some of the financial costs related to the public health emergency caused by the overuse of prescription opioids, this is also about stopping these illegal and unethical practices,” said Novak.

A former partner at Jones Day’s Silicon Valley office who accused the law firm of forcing her out after she raised concerns about its “boys’ club” culture has dropped her lawsuit in exchange for a return of capital she put into the firm, reports Bloomberg Law.

“Wendy Moore’s suit claimed the firm’s leadership retaliated against her after she voiced misgivings about its culture, pay transparency, and treatment of female attorneys,” writes Bloomberg’s Mike Leonard. “The complaint described Jones Day as a ‘fraternity’ where women are marginalized and objectified while male lawyers attend business meetings at strip clubs and sporting events.”

Read the Bloomberg Law article.

Image by Sean P. Anderson

Courthouse News Service reports that a Connecticut judge has slapped conspiracy theorist and defamation suit defendant Alex Jones with sanctions after he posted a 20-minute tirade against plaintiff’s attorney.

The video rant came after files turned over by the defense were found to contain images of child pornography.

In the video, Jones pounded on a photo of Chris Mattei, a lawyer for the families suing Jones for defamation over his statements that the Sandy Hook shooting was a hoax. “You’re trying to set me up with child porn, I’ll get your ass,” Jones said, as he beat on the Mattei photo.

“The court has no doubt that Alex Jones was accusing plaintiffs counsel of planting child pornography,” Bridgeport Superior Court Judge Barbara Bellis said.

CNN reports that, under the sanction, the defense will be denied the opportunity to pursue special motions to dismiss moving forward in the lawsuit. The court will also award attorneys fees and filing fees to the Sandy Hook families’ lawyers related to the issue that Jones went off about in his broadcast: child pornography that Jones’ team inadvertently turned over to the plaintiffs.

Read the Courthouse News article.

A post on the Provost Umphrey website describes the role of the Occupational Safety and Health Administration in investigating a workplace accident — and the role that a lawyer can play in finding where fault lies and obtaining fair redress for the victim.

The post cites a hypothetical construction accident in which a large piece of equipment injured a worker.

One of the first questions to ask is: What caused the accident? “That’s an important question because the answer can determine who’s liable for the worker’s injuries and can be made to pay for his medical expenses, lost wages, even lost earning capacity,” writes the author of the post.

“OSHA serves an incredibly important purpose,” he adds. “Because of it, workers are safer and accidents fewer. But while workers benefit from the services OSHA provides, they are still in need of help. The results of an OSHA investigation can be used to get the victims of workplace accidents the compensation and help they need. But it doesn’t fall to OSHA to make that happen.”

Read the article.

Reuters reports that a federal appeals court has determined that Amazon is not liable for facilitating the sale of a defective product manufactured by another company.

It’s the second time in just three weeks that courts have found Amazon not be liable for the defective products of their suppliers.

Reuters’ Alison Frankel reports that the 6th Circuit held in Fox v. Amazon that Amazon cannot be held responsible under state product liability law because it was not the seller of the defective product – even though the product was advertised on Amazon’s platform and Amazon shipped and collected payment for it.

Read the Reuters article.

In a class action complaint filed last week, the plaintiffs’ firm Mazie Slater Katz & Freeman alleges that several New Jersey and Texas law firms committed procedural violations and overcharged clients in about 1,450 mesh cases brought in New Jersey state courts, reports Reuters.

Alison Frankel of Reuters explains:

According to the complaint, the law firms – including Nagel Rice, the Potts Law Firm, Bailey Cowan Heckaman, Annie McAdams and Junell & Associates – failed to sign clients to retainer agreements or purported to bind clients to contracts that don’t comply with New Jersey laws and ethics rules. The complaint, filed in Superior Court in Bergen County, New Jersey, asserts claims for malpractice, breach of fiduciary duty and unjust enrichment.

Read the Reuters article.

A week after the West Virginia Supreme Court unanimously upheld the property rights of landowners battling one natural gas giant, the same court tossed out a challenge filed by another group of landowners against a different natural gas company, reports Ken Ward Jr. of the Charleston Gazette-Mail.

The article, published on the website of the ABA Journal, is the product of a partnership with the Gazette-Mail, a member of the ProPublica Local Reporting Network.

The court on Monday upheld a lower court ruling that threw out a collection of lawsuits alleging dust, traffic and noise from gas operations were creating a nuisance for nearby landowners.

“In the property rights case last week, the justices set a clear legal standard that natural gas companies can’t trespass on a person’s land, without permission, to tap into gas reserves from neighboring tracts,” writes Ward. “In Monday’s case, the justices didn’t articulate a new legal precedent.”

Read the ABA Journal article.

Above the Law reports that Pepper Hamilton is potentially in some hot water for failing to produce documents pursuant to a court order.

“The discovery kerfuffle comes as a result of Doe v. Baylor University, a Title IX lawsuit in which students allege the University did not do enough about their allegations of sexual assault, and created an environment which allowed sexual attacks to flourish,” explains senior editor Kathryn Rubino.

The firm is opposing an order to produce some documents responsive to discovery requests. The judge cited the firm’s “untimely objections” to complying with discovery and pointed to multiple discovery issues over the last two years of the litigation when he said sanctions are on the table.

Read the Above the Law article.

For the first time in John Roberts’ 14 years as chief justice of the United States, he will likely be the deciding vote on several final, tense cases — a total of 24 over the next two weeks, according to CNN.

“Two of the most politically charged cases awaiting resolution, testing 2020 census questions and partisan gerrymanders, could lead to decisions favoring Republican Party interests and reinforce the partisan character of a court comprising five GOP appointees and four Democratic ones,” writes CNN’s Joan Biskupic.

Read the CNN article.

Intemperate statements in court and — in one case — allegations of unwanted sexual advances have led to difficult times for three judges, two in Illinois and one in Florida.

The Chicago Tribune reports that a state board that oversees judges said in a complaint that Judge Mauricio Araujo of Cook County made unwanted sexual advances toward a court reporter, made inappropriate sexual comments about a prosecutor and tried to kiss a police officer — a pattern of harassing behavior toward women. The board asked the Illinois Courts Commission to take “appropriate” action against Araujo.

WBEZ Chicago has a report about an associate judge in Cook County who was denied reappointment to the bench in a vote by the county’s circuit judges. Richard Schwind, an  associate judge since 2012, had been criticized for racially insensitive comments. He was disciplined last year after WBEZ reported that he told a black defendant, “You were never a slave.”

And in Florida, the state supreme court publicly reprimanded Broward County Circuit Judge Dennis Daniel Bailey for conduct during a criminal trial last year, according to the Miami Herald. Bailey ordered a courtroom deputy to remove a defense attorney during a sidebar conference, in the presence of the jury.

West Mermis, PLLC, a Houston-based law firm, secured a take-nothing defense verdict for its client, a national highway construction contractor, in South Texas. Plaintiffs’ counsel asked the jury to award $40 million to the decedent’s family. Following a two-week trial, the jury rendered a complete defense verdict.

According to the firm, the lawsuit arose out of a two-vehicle accident that occurred within a road construction project in Duval County, Texas. Vincent Vargas’ vehicle rear-ended an 18-wheeler tractor-trailer within the construction contractor’s highway construction zone. Vargas suffered fatal injuries as a result of the accident, and his parents filed a lawsuit against the construction contractor.

At trial, West Mermis highlighted the safety measures the construction contractor utilized during the road construction and the professionalism with which it performed its work, the firm said on its website. The defense team, led by Lawrence J. West and assisted by Francis D. McWilliams, emphasized to the jury that the evidence did not support the plaintiffs’ allegations.

Read details of the case.

Bloomberg Law reports that a federal judge has ruled that Nationwide Mutual Insurance Co. may have discriminated against an in-house attorney who had portions of both legs amputated after developing vascular disease.

The case now will go to a jury trial.

Nationwide pointed to Kevin Greenwood’s documented performance problems, but there’s evidence a non-disabled attorney with similar performance deficiencies wasn’t discharged, the court said, and there’s also evidence the other attorney was given more than a year to do better while Greenwood only got a few months before and a few weeks after receiving accommodations to improve his performance.

Greenwood testified that a reason he was behind in one of Nationwide’s performance criteria was because it took him longer to get to and from court following his leg amputations, the court said.

Read the Bloomberg Law article.

By Kerianne E. Kane
Saxe Doernberger & Vita, P.C.

What do you do when your house falls out from underneath you? Over the last few years, homeowners in northeastern Connecticut have been suing their insurers for denying coverage for claims based on deteriorating foundations in their homes. The lawsuits, which have come to be known as the “crumbling concrete cases,” stem from the use of faulty concrete to pour foundations of approximately 35,000 homes built during the 1980s and 1990s. In order to save their homes, thousands of homeowners have been left with no other choice but to lift their homes off the crumbling foundations, tear out the defective concrete and replace it. The process typically costs between $150,000 to $350,000 per home, and homeowner’s insurers are refusing to cover the costs. As a result, dozens of lawsuits have been filed by Connecticut homeowners in both state and federal court.

Of those cases, three related lawsuits against Allstate Insurance Company were the first to make it to the federal appellate level.[1] The Second Circuit Court of Appeals was tasked with deciding one common issue: whether the “collapse” provision in the Allstate homeowner’s policy affords coverage for gradually deteriorating basement walls that remain standing.

The Allstate policies at issue were “all-risk” policies, meaning they covered “sudden and accidental direct physical losses” to residential properties. While “collapse” losses were generally excluded, the policies did provide coverage for a limited class of “sudden and accidental” collapses, including those caused by “hidden decay,” and/or “defective methods or materials used in construction, repair or renovations.” Covered collapses did not include instances of “settling, cracking, shrinking, bulging or expansion.”

Under Connecticut law, if an insurance policy’s terms are “clear and unambiguous,” then courts will give the terms their ordinary meaning. If the terms are ambiguous, however, courts will construe the language in favor of the insured. The homeowners argued that under Connecticut Supreme Court precedent, the term “collapse” is ambiguous, because it includes not only sudden catastrophe, but also the type of gradual deterioration occurring in the foundations of their homes.

The homeowners principally relied on the Connecticut Supreme Court’s decision in Beach v. Middlesex Mutual Assurance Co.[2] In Beach, the plaintiffs sought coverage from their homeowner’s insurer for a crack in the foundation of their home, caused by a “collapse” within the terms of the policy. The insurer denied that a collapse had occurred and argued that the crack was caused by “settlement of earth movement,” a type of loss excluded under the policy. The homeowners argued that because “collapse” was not defined in the policy, it was ambiguous because it could include both a catastrophic breakdown, as well as a gradual breakdown based on loss of structural strength. The Connecticut Supreme Court agreed, finding that the term “collapse,” left undefined, encompasses “substantial impairment of the structural integrity of a building.” As a result, the court construed the term in favor of the homeowners, noting that if the insurer intended for the definition of “collapse” to be limited to a sudden and complete catastrophe, it had the opportunity to expressly include such a limited definition in the policy.

The Second Circuit Court of Appeals was not persuaded, however, that Beach was controlling, and found that the policy at issue in Beach was easily distinguishable from the Allstate policies, which included qualifying terms to define covered collapses as “entire,” “sudden” and “accidental.” The Court of Appeals explained that by including these terms, it was expressly clear that Allstate intended for covered collapses to be limited to abrupt, unexpected collapses. As a result, the Court concluded that the damages sustained by the homeowners were not covered under the policies, because not only was the gradual erosion and cracking of the foundations not “sudden” or “accidental,” but “cracking” was expressly excluded from the definition of collapse.

These decisions are a perfect example of the significance of policy terms and definitions, which can vary greatly from one insurance carrier to the next, and the impact that they can have on potential claims. The likelihood of success for the countless crumbling concrete cases still pending in Connecticut courts will largely depend on the specific terms of each policy, and the manner in which terms like “collapse” are defined or otherwise qualified.

____________________________________________________________________________________________________
1 The three cases are Valls v. Allstate Insurance Co., 919 F.3d 739 (2d Cir. 2019); Carlson v. Allstate Insurance Co., Case No. 17-3501, 2019 WL 1466935 (2d Cir. April 2, 2019); and Lees v. Allstate Insurance Co., Case No. 18-007, 2019 WL 1466939 (2nd Cir. April 2, 2019).
2 Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 532 A.2d 1297 (1987).
3 Valls, supra, at 744 (quoting Beach v. Middlesex, 205 Conn. at 253).

JPMorgan Chase said on Thursday that it agreed to pay $5 million to settle a class-action lawsuit filed on behalf of male employees who contend they were denied access to the same paid parental leave as mothers between 2011 and 2017.

The Washington Post‘s Samantha Schmidt reports the American Civil Liberties Union, which represented named plaintiff Derek Rotondo, said “this marks the first settlement of its kind stemming from a class-action lawsuit on behalf of male employees claiming they were denied the same equal paid parental leave as women. The settlement comes amid growing pressure on employers to adopt gender-neutral paid-leave policies that encourage more equitable caregiving roles in the home.”

While not admitting liability, the company pledged to train those administering the policy and pay $5 million to male employees who claim they were denied additional paid parental leave as primary caregivers.

Read the Post article.

In a stern rebuke, a judge ordered maverick Texas lawyer Phil Ross and his clients to pay more than $220,000 in sanctions for their serial misconduct during an ongoing guardianship case involving Charlie Thrash, a mentally incapacitated millionaire, according to a report in the San Antonio Express-News.

Bexar County Probate Court Judge Oscar Kazen ruled that Ross and his clients, Laura and Brittany Martinez, had “designed and carried out a vexatious litigation campaign … against Thrash, his property, the guardians and the Court,” writes Express-News reporter John McCormack.

The judge characterized the conduct of Ross and the Martinezes as “intentional, knowing and outrageous.” The court’s order cited Ross’ assistance in the marriage of Thrash and his girlfriend Martinez, which had been forbidden by the court because of Thrash’s mental incapacity.

Read the Express-News article.

The Aldous\Walker law firm has earned a place on The National Law Journal’s 2018 list of Top 100 Verdicts for securing a $25 million verdict against a former Dallas Cowboys player and the nightclub that over-served him, leading to a fatal DWI crash.

The firm represented Stacey Jackson, mother of former Cowboys practice squad player Jerry Brown, who died in the 2012 crash. Brown was a passenger in the car driven by former star defensive lineman Josh Brent. Both had visited Privae Lounge in Dallas the night of the accident, and tests showed Brent’s blood-alcohol content was twice the legal limit at the time of the crash, according to a release from the law firm.

The Aldous\Walker team successfully argued that the club shared responsibility for continuing to serve alcohol to Brent after he was intoxicated. The jury found Privae Lounge’s owners and Brent were equally liable for Brown’s death.

The verdict is among the largest in Texas for this kind of case. The full list of the NLJ Top 100 Verdicts for 2018 appears in the publication’s June issue.

“This is a very tragic case. But I was pleased we were able to bring Ms. Jackson the justice she deserved,” said Aldous\Walker co-founder Charla Aldous, who along with Brent Walker, represented Ms. Jackson at trial. “The owners of that club did everything they could – including filing for bankruptcy – to avoid their responsibility. But we stuck with it because we knew we were right.”

The win was the first of three courtroom verdicts the firm earned on behalf of its clients in less than three months, including:

• Sarah Milburn, who was left quadriplegic in a collision involving a Honda Odyssey van. In February 2019, Aldous and Walker won a $37.6 million verdict on her behalf after a jury found Honda’s design of a third-row seat belt defective.
• Isabella Fletcher, who was sexually assaulted by former Hebron High School football players when she was 14. A Denton County jury awarded her $32 million, just weeks after the Milburn victory.

The firm’s release said the courtroom wins represent just the latest high-profile legal successes for Aldous and Walker, both of whom also represented nurse Nina Pham, who contracted Ebola in 2014 while working at Texas Health Presbyterian Hospital Dallas. And in 2011, they won a $9.3 million verdict on behalf of a female student who was sexually assaulted by a teacher at the Episcopal School of Dallas.

The U.S. Supreme Court has turned away an appeal of a ruling against the widow of a Reed Smith partner who blamed the labeling of the antidepressant Paxil for her husband’s suicide.

The court denied the appeal petition from plaintiff Wendy Dolin in her lawsuit against pharmaceutical company GlaxoSmithKline, reports the Cook County Record.

“Dolin had sued GSK over the death of her husband, Stewart Dolin, who had committed suicide in a downtown Chicago transit station in 2010,” writes the Record‘s Jonathan Bilyk. “Dolin alleged her husband’s suicidal behavior was caused by the drug paroxetine, the generic version of GSK’s Paxil. The warning label for paroxetine is identical to the label for Paxil.”

Read the Cook County Record report.

A Houston-area utility worker has filed a lawsuit against CenterPoint Energy Houston Electric, LLC, after he was severely injured in a fall from a company utility pole.

On March 15, 2019, near Tomball, Texas, Garrett Wilder, an employee of electrical contractor L.E. Myers Co., went with his co-worker to the utility pole owned by CenterPoint Energy Houston to do maintenance work, according to a post on the website of Androvett Legal Media & Marketing.

The lawsuit says a CenterPoint employee on the site told him to climb the 100-foot pole to install hand and foot bolts with fall protection eyelets. The contractor had climbed approximately halfway up the pole using fall protection gear when one of the handholds that was supposed to be permanently attached to the pole became separated, causing him to fall 40 feet to the ground. Upon impact, Wilder stopped breathing and his heart stopped beating. He was revived by his co-worker before being taken to the hospital. After multiple surgeries to his lower extremities and back, Wilder has been transitioned to a long and arduous physical therapy regime, according to the lawsuit.

Provost Umphrey attorney Matthew Matheny is representing Wilder. “Our client has suffered severe, permanent injuries which would have cost him his life if it had not been for the swift action of his fellow employee,” he said.

Wilder is seeking in excess of $1 million in damages for physical pain and suffering, mental anguish, lost wages, disfigurement, physical impairment and future medical bills. He is also asking for punitive damages. The lawsuit is Garrett Wilder vs. CenterPoint Energy Houston Electric, LLC in the 269th District Court, Harris County, Texas.

CenterPoint Energy Houston Electric, LLC, is owned by Utility Holding, LLC, a wholly owned subsidiary of Houston-based CenterPoint Energy, Inc.

Jones Day is objecting to the use of pseudonyms for four of the six plaintiffs who have sued the Biglaw firm for allegedly discriminating against female partners and associates in compensation.

Above the Law reports that the firm told the judge hearing some of the cases that “the court’s approval of the pseudonyms itself impugns Jones Day’s reputation by implying, without basis in evidence, that Jones Day would improperly retaliate against the Jane Does if their identities were made public.”

The firm’s motion said that “pseudonyms prevent the public—including clients, potential clients, lateral recruits, and law students—from fully evaluating the Does’ allegations and credibility.”

Read the Above the Law article.

Image by Mike Mozart

Reuters is reporting that Bayer AG plans to argue that a $2 billion jury award and thousands of U.S. lawsuits claiming its glyphosate-based weed killer Roundup causes cancer should be tossed because a U.S. regulatory “agency said the herbicide is not a public health risk.

“Some legal experts believe Bayer will have a tough time convincing appellate courts to throw out verdicts and lawsuits on those grounds,” writes Reuters’ Tina Bellon. “Bayer has a better shot if a business-friendly U.S. Supreme Court takes up the case, experts said. But that could take years.”

Bayer acquired Monsanto, the manufacturer of Roundup, last year, and the litigation involving 13,400 plaintiffs went along with the deal. The plaintiffs allege the product causes cancer. So far, three consecutive U.S. juries have found the product to be carcinogenic, resulting in verdicts amounting to billions of dollars.

Read the Reuters article.