The 5th U.S. Circuit Court of Appeals has overturned a $1.5 million award to ex-NBA All Star David West, who claimed he qualified for a payout in the BP oil spill settlement because he earned less in 2010 than in 2009.

Reuters reporter Alison Frankel explains that West “was in the fourth year of a five-year, $45 million contract with the New Orleans Hornets when the Deepwater Horizon rig exploded in 2010. West was paid every penny of the $45 million he was owed under his contract, including the full amount he was due in the year after the spill. He nevertheless argued – and the settlement administrator agreed – that under the definitions and formulas in BP settlement, he qualified for a payout for economic losses because he earned less in 2010 than in 2009. The 5th Circuit shut that right down.”

5th Circuit Judge Andrew Oldham, who wrote for the panel, didn’t see it that way: “In 2010, he earned exactly what he was entitled to receive under his contract.”

Read the Reuters article.

Three trends have dominated the practice of law, and personal injury law in Texas, writes Bryan O. Blevins, an equity partner with Beaumont, Texas-based Provost Umphrey Law Firm. These are tort reform, judicial activism, and technology.

Tort reform has resulted in many more deserving victims having the courthouse doors slammed shut than frivolous claims being denied, Blevins writes in the article originally published in Texas Lawyer.

“Judicial activism can best be seen in the increase of appeals accepted and the almost universal reversal of trial judgments that favor plaintiff personal injury victims,” in Blevins’ view. “In the last 20 years, we have seen the explosive growth of appellate courts substituting their own version of end-result oriented justice through the guise of ‘expert’ qualification and testimony.”

And new technologies are forcing attorneys to rethink questions that, under other circumstances, may have been much simpler to answer, he added, citing legal issues surrounding driverless cars as an example of the new challenges lawyers must face.

Read the article.

Defendants in the college admissions cheating scandal case have been turning to Biglaw firms for representation, including Cooley, Sidley Austin, Latham & Watkins, Boies Schiller Flexner, and Ropes & Gray.

Bloomberg Law reports that two of the latest hires are Cooley partners Randall R. Lee and William Schwartz, who have been hired by Jane Buckingham, the founder and chief executive of Trendera, a youth marketing consultancy. Prosecutors allege she paid $50,000 for someone to take the ACT college entrance exam in her son’s place.

And Jack W. Pirozzolo, a partner in Sidley Austin’s Boston office, is representing William McGlashan Jr., who worked at private equity firm TPG before being fired in the wake of the scandal.

Read the Bloomberg article.

The Salt Lake Tribune reports that former members of the polygamous Fundamentalist Church of Jesus Christ of Latter-Day Saints have provided enough evidence of misdeeds by their old lawyers for parts of a lawsuit to proceed, the U.S. 10th Circuit Court of Appeals ruled.

The Tribune‘s Nate Carlisle explains:

The former sect members must still prove their case in a Salt Lake City courtroom, the appeals court said. The Denver-based appeals court only considered the narrow issue of whether federal Judge Ted Stewart correctly dismissed a lawsuit filed against FLDS President Warren Jeffs and the law firm which used to represent his church, Snow Christensen & Martineau.

The plaintiffs, ex-Jeffs followers, contend the lawyers helped Jeffs find legal mechanisms to hide child rape as well as benefit from child labor, kick people out of their homes and separate them from their families, Carlisle writes.

Read the Salt Lake Tribune article.

Image by Mitch Barrie

The Connecticut Supreme Court Thursday narrowly reversed a ruling by a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed, reports the Hartford Courant.

The decision that remanded the landmark gun case back to Bridgeport Superior Court possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits, writes the Courtan‘s Dave Altimari.

He explains:

The ruling paves the way for the families to subpoena internal documents on how the gun companies have marketed the AR-15, which has become the weapon of choice for mass shooters. The gun manufacturers have closely guarded information on how they market the assault weapons.

Read the Courant article.

Bloomberg Law reports that Willkie Farr & Gallagher Co-Chairman Gordon R. Caplan has been charged along with dozens of others, including Hollywood actors and executives, in a criminal conspiracy to bribe college admissions officials to gain admission for their children to top universities.

According to Bloomberg’s Melissa Heelan Stanzione, Caplan was arrested at 6:30 a.m. Tuesday and was released on $500,000 bail after appearing in Manhattan federal court.

Caplan has been charged with donating $75,000 to the Key Worldwide Foundation. “In an exchange detailed in court filings, two of the FBI’s cooperating witnesses agreed to proctor his daughter’s college entrance exam and correct the answers after she finished it,” Stanzione reports.

Another Bloomberg report contains a transcript of a discussion involving a call Caplan had with William Singer, the founder of a corrupt college counseling and test-prep business who would later become a cooperating witness:

“Look, I’m particularly interested in working with you guys and figuring out what’s best for [my daughter],” Caplan said, according to the criminal complaint, which details the conversation intercepted on a court-authorized wiretap.

Read the Bloomberg reports
here and here.

Image by Mike Mozart

A lawyer representing a man who claims Bayer AG’s Roundup weed killer caused his cancer urged jurors to imagine the scales of justice ever so slightly tilted in his favor, as if weighted by a feather, and said that would be enough to advance his trial to the next and final phase, reports Bloomberg.

Reporter Joel Rosenblatt summarized the argument of Aimee Wagstaff, representing Edwin Hardeman:

Roundup, not hepatitis, caused Hardeman’s cancer, his lawyers argued at a critical juncture in the company’s second U.S. trial over the popular herbicide. Hardeman’s exposure to Roundup “was a real factor, it doesn’t have to be the only cause” of his cancer, Wagstaff said. “It doesn’t have to be the only cause of his harm,” even if they determine hepatitis “may have played a role,” she added.

Read the Bloomberg article.

A recent ruling in an Alabama federal court illustrates how having a valid independent contractor agreement is not necessarily an impenetrable magic shield automatically rendering misclassification claims null and void, according to Fisher Phillips’ Gig Employer Blog.

Partner Richard Meneghello describes the case in which a company’s former worker claimed that he faced discrimination on account of his race, gender, and age during his three months on the job. The company, however, countered that the plaintiff had been an independent contractor and did not have legal standing to bring employment discrimination claims under Title VII or the ADEA.

The company also citied an independent contractor agreement, confirming that the worker was a contractor and had no employment rights. The plaintiff cited work requirements that would have been appropriate for an employee.

“When the two were compared—the world contained in the contractor agreement against the reality as alleged by Nemo’s complaint and evidence—the court found inconsistencies that led it to rule in [the plaintiff’s] favor,” Meneghello writes.

Read the article.

A new Trump administration rule for family-planning grants could trigger a national public health crisis, the American Medical Association and Planned Parenthood said in a lawsuit Tuesday challenging the rule, reports the Associated Press.

In addition to the AMA/Planned Parenthood lawsuit, the rule is being challenged in a lawsuit filed Monday by California officials and another filed Tuesday by officials in 20 other mostly Democratic controlled states.

The Department of Health and Human Services rule would prohibit family planning clinics funded by the federal Title X program from making abortion referrals — a provision that critics denounce as a “gag rule.”

“Pregnancies that are unintended, and thus riskier, will increase. The number of abortions will also increase. And there will be fewer tests for sexually transmitted infections and cancer screens — putting patients and their partners at great health risk,” the lawsuit said.

Read the AP article.

A Texas state district judge who was accused last year of trying to influence a jury verdict by saying God told him the defendant was innocent has been issued a public warning by the state agency that investigates judicial misconduct, reports the Austin American-Statesman.

Jack Robison acknowledged to the State Commission on Judicial Conduct that his conduct was improper, adding that it might have been caused by stress from treatment for a severe medical condition and the death of a close friend days before the trial began in January 2018, according to Statesman reporter Ryan Autullo.

The commission could have removed Robison from the bench.

“The commission revealed that it had received 18 complaints about Robison’s conduct, including from the Comal County criminal district attorney’s office, two jurors and numerous citizens who learned about the incident through media reports,” writes Autullo.

Read the Statesman article.

Zapproved’s latest ediscovery case law summary volume shows how courts are interpreting the amended Federal Rules of Civil Procedure as they relate to the scope of discovery and the limits of proportionality. The new volume can be downloaded from Zapproved’s website.

The publication covers a range of cases from the last year, encompassing plaintiffs who might regret putting their lives under the microscope as well as a few overreaching litigants who seem to want to continue endless discovery rather than ever getting to trial. As usual, there are a few cases involving woefully unsupported arguments, illustrating what the courts wish they’d heard about. And forensic examinations came up several times, with courts ruling both for and against them.

This volume includes 17 cases analyzing the boundaries of the scope of discovery and proportionality under the amended Federal Rules of Civil Procedure.

Download the new volume.

Update: Pavone & Fonner have filed a federal lawsuit seeking to invalidate B&P 6068(b) as in violation of fundamental First Amendment principles.

A California attorney is in professional trouble for calling the ruling of the female judge in his case “succubustic,” among a host of other insults, according to Bloomberg Law.

A state appellate court announced it would report Benjamin Pavone of Pavone & Fonner LLP to the state bar, writes Bloomberg’s Brian Flood.

The trial court had denied Pavone’s request for an award of $146,634 in attorneys’ fees in an employment law suit. In his notice of appeal, he said the  ruling was “disgraceful,” “succubustic,” validated the defense’s “pseudohermaphroditic misconduct,” and “prompt[s] one to entertain reverse peristalsis unto its four corners.”

The use of a form of the word “succubus” drew a rebuke from the appellate court: “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

Read the Bloomberg Law article.

A jury in Denton, Texas, has found two former high school football players liable in the aggravated sexual assault of a 14-year-old girl, a ninth-grader at the time of the 2012 attack, and awarded a total of $32 million.

The jury’s Feb. 28 verdict, in District Judge Lee Ann Breading’s 462nd Judicial District Court, was unanimous.

Testimony indicated the attack took place at a student’s home, where the girl reported that she was drugged and then raped by two athletes from Hebron High School in nearby Carrollton.

Jurors heard testimony in the case that the two boys had sex with the girl at the same time. One of the defendants testified that were he to encounter a girl as intoxicated as the victim again, he would behave the same way, according to plaintiff’s lawyers.

The victim, who is not identified because she was a minor at the time of the sexual assault, was awarded $7 million in actual damages and another $25 million in punitive damages.

“I cannot begin to tell you what this verdict means to my client,” said attorney Charla Aldous of Aldous\Walker in Dallas, who represents the victim. “She is a brave young woman who stood for what was right against all odds. My hope is that she will be a voice for sexual assault victims who are afraid to come forward and hold rapists responsible for their actions.”

Also on the legal team for the young woman are Aldous\Walker trial lawyers Brent Walker and Caleb Miller.

At trial, one of the two defendants in the case testified that what happened between him and the victim was not a sexual assault, but consensual. His only regret, he told the jury, was that he “lost his virginity in that way.” The other defendant testified by video deposition and asserted his Fifth Amendment privilege against self-incrimination. Neither defendant has ever been arrested or charged with a crime in the case.

This was the second civil trial resulting from the attack. In 2014, the young woman and her family sued the Lewisville Independent School District over the harassment and bullying she experienced at school following the attack. But the jury in that case, in federal court in Sherman, declined to find the school district liable. Even so, that judge subsequently declared that the victim had been sexually assaulted.

The Denton case is Paul Fletcher et al. v. A.V. and I.G., No. 14-10284-16, in the 462nd Judicial District Court in Denton County, Texas.

More than 250 active and recently retired federal judges responded to a recent Exterro survey on how they would like legal teams to manage litigation/e-discovery processes in their courtrooms.

Exterro has made the report available from its website.

An example of the type of information revealed is that that 47 percent of the judges have taken an action to remedy e-discovery problems three or more times in the past year.

The report covers such topics as:

• What judges expect of the attorneys appearing before them
• How often and why judges issue discovery warnings and sanctions
• What judges consider the most important e-discovery/litigation practices

Download the report.

The Supreme Court of Texas recently ruled in favor of the Texas Windstorm Insurance Association (TWIA) regarding attorney-client privilege in a decision that can benefit insurance companies involved in litigation, reports Androvett Legal Media & Marketing.

The justices determined that attorney-client privilege extended to communications between a TWIA employee and counsel when the employee was serving as an expert witness for the company. The case involved a dispute between the city of Dickinson and TWIA.

Dallas insurance litigator Meloney Perry of Perry Law P.C. says the ruling is significant to Texas because it aligns the state with the federal rules on expert disclosure and production. She notes it also may be of particular benefit to insurance companies.

“This ruling means that underwriters, auto damage personnel and claims handlers may serve as experts without exposing attorney-client communications, even though they are employed by an insurance company involved in litigation,” said Perry. “One side benefit is this could cut costs from having to hire an outside expert.”

Perry says an insurance carrier employee designated with expert knowledge or who signs an affidavit attesting to certain expertise will not have to produce communications with counsel when Texas law applies. However, certain work product documents may not be protected.

“Work product is still subject to being produced, so parties will need to make the determination on a document-by-document basis. If the witness is provided an investigative report which is work product that may not be protected, but the email between the witness and counsel will be.”

Perry adds that if a federal question is being litigated in federal court, the attorney-client privilege is a question of federal common law. In state court and diversity cases filed in federal court, the attorney-client privilege is controlled by that forum’s state law.

A federal appeals court upheld about $8 million in damages Tuesday to the former general counsel of a Bay Area laboratory who was fired after telling company officials about possible bribery and records falsification by the lab’s employees in China, according to the San Francisco Chronicle.

Bio-Rad Laboratories fired general counsel Sanford Wadler in 2013, claiming poor performance. The company also claimed it found no evidence of wrongdoing by its employees.

The Ninth U.S. Circuit Court of Appeals on Tuesday found evidence to support the 2017 verdict by a federal court jury in San Francisco that Wadler had acted as a whistle-blower and was dismissed in retaliation for reporting conduct that he “reasonably believed” to be illegal, according to the Chronicle‘s Bob Egelko.

Read the SF Chronicle article.

Above the Law reports on a law firm’s breach-of-contract lawsuit against an associate who wants to leave the firm.

Senior editor Kathryn Rubino describes the suit filed by the Preis PLC law firm:

The firm recently sued Jane “Megan” Daily, a soon-to-be former associate leaving after a year at the firm. The petition alleges a breach of contract and damages — the firm says it lost $10,000 by training Daily for the year because “more experienced attorneys must take time away from other tasks to supervise and mentor new hires, further costing the firm significant lost billing time.”

Read the Above the Law article.

The Dallas Morning News is reporting that Dallas city and county officials are trying to block the release of investigative files related to the unsolved slaying of a prominent Dallas lawyer in 2016.

“Ira Tobolowsky, 68, was found dead inside his burning garage at his North Dallas home on May 13, 2016. The medical examiner’s office ruled his death a homicide — he died of blunt force injuries, smoke inhalation and burns,” according to the News‘ Dana Branham.

Michael Tobolowsky, the son of the victim, obtained an order from a district judge for the city to release documents from the Dallas Police Department and the Dallas County medical examiner so he can investigate the death of his father, potentially for a wrongful-death lawsuit. He claims the case has gone cold.

Dallas police are appealing the order, claiming the release would ruin any change of corroborating future witness statements.

Related:

• Family of Slain Lawyer Think They’ve Identified Murderer. So Why Can’t the Cops Solve the Case?

• Dallas Lawyer Was Spied on Before He Was Killed, Police Suspected

Read the Dallas News article.

An Army combat veteran in Utah has filed a lawsuit against 3M, seeking damages for permanent hearing loss caused by defective earplugs and alleging that the manufacturer doctored test results to win a government contract.

The lawsuit filed by Dallas-based Fears Nachawati Law Firm on behalf of Nathan Fortie seeks economic damages for permanent hearing loss and tinnitus allegedly caused when 3M Combat Arms Earplugs failed to protect him from loud combat noises including impulse noises and gunfire, mortar and cannon explosions. The suit also contends that 3M failed to provide key safety information to the soldiers.

“This company took advantage of the U.S. government by profiting from an inferior and defective product. But more significantly, it took advantage of U.S. troops who put their lives on the line to serve their country,” said Fears Nachawati cofounder Bryan Fears.

Originally created by Aearo, which was acquired by 3M in 2008, the “selective attenuation earplugs” were issued to soldiers between 2003 and 2015. In 2018, 3M paid more than $9 million to resolve Justice Department claims that it violated the False Claims Act by knowingly selling the earplugs without disclosing defects, according to a release from Fears Nachawati.

Fortie’s suit says the earplugs are too short for proper insertion. Combined with a separate defect, they are prone to loosen, making them ineffective at protecting soldiers from harmful noises.

The Hearing Health Foundation estimates that 60 percent of returning Iraq and Afghanistan veterans suffer from tinnitus or hearing loss. Tinnitus is the No. 1 service-related disability, affecting more than 1.5 million veterans, according to the American Tinnitus Association.

The case is Nathan Fortie v. 3M et al., Case No. 1:19-cv-00011-EJF in the U.S. District Court for the District of Utah. Similar lawsuits on behalf of injured veterans have been filed across the country. The Judicial Panel on Multidistrict Litigation is now considering a motion to transfer all related lawsuits to the U.S. District Court for the District of Minnesota where 3M is based.

CNBC is reporting that a federal judge has ordered longtime Republican operative Roger Stone to court on Thursday to explain why he should not have his criminal release bond modified or even revoked because of his recent Instagram post showing the judge next to what appeared to be a rifle scope’s crosshairs.

CNBC’s Dan Mangan writes that Stone could be sent to jail if his $250,000 signature bond is yanked by the judge, Amy Berman Jackson, who is presiding over the criminal case filed against him by special counsel Robert Mueller.

Stone’s Instagram account on Monday posted and then quickly deleted a photo of Jackson that had a rifle scope’s crosshairs above her head.

Read the CNBC article.