I was a guest on WABC radio’s John Gambling show this morning, discussing the Roberts nomination. At 3:30 Central I’ll be talking on the Carl Wigglesworth show in San Antonio. And circa 5:30 Eastern this afternoon I’ll make another appearance on WCBS-TV in New York.
(cross-posted at Point of Law)
Posts Tagged ‘Texas’
Ernst v. Merck Vioxx trial to begin in Texas
Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)
Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).
Radio today
I’m scheduled to be a guest on San Antonio’s KAHL 1310 AM today at 1:30 p.m. Central, discussing Sandra Day O’Connor’s seat on the Supreme Court.
Broadcast appearances
I’m scheduled to join a reporter and anchor in the studios of New York’s WCBS-Channel 2 this afternoon to discuss the retirement of Justice Sandra Day O’Connor; look for me sometime in the 5-to-6 p.m. slot.
More (7:30 p.m. Eastern): I’ll be on WCBS-TV again tomorrow between 9 and 10 a.m. for a second appearance. And (updated) on Monday morning I did two Texas radio phone interviews, including KTSA (San Antonio) with Steve Gehrlein, on the battle over Justice O’Connor’s seat, and KOLE (Beaumont), on the litigation explosion. P.S. on WCBS I mentioned Judge Edith Jones. It’s fun to be a mentioner!
Age bias, inflicted by someone older
A 63-year-old West Texas woman has won an age-discrimination suit against a company run by an entrepreneur who is 72.
On Friday, a Dallas jury awarded Garlan Cunningham of Ranger more than $965,000 for lost wages, mental anguish and punitive damages after being derided as an “old nag,” a possible Alzheimer’s victim and an “old fart,” her attorneys said Monday.
Cunningham said Doris Richeson, a septuagenarian herself, organized the campaign of ridicule, which included an email referring to Cunningham as a lazy cowhand who’d been “in the saddle too long”. The company of which Richeson is founder and chairman operates 49 Dairy Queens in Texas; it denies Cunningham’s allegations and says it plans appeal. (Barry Shlachter, “Texas woman wins discrimination suit”, Fort Worth Star-Telegram, Apr. 12).
In Texas
I’m off to Austin where I’ll take part in a panel discussion on asbestos reform tomorrow (Thurs.) at the Texas Public Policy Foundation’s third annual policy orientation for the state legislature, an event that I understand is sold out. Any posting before Friday will be from Ted.
Backs SUV over toddler, blames Nissan
In Garland, Texas, in October, a man backing up his Infiniti SUV accidentally ran over and killed his two-and-a-half-year-old daughter. Now, represented by attorney Windle Turley, his family is suing Nissan, parent company of Infiniti. “They claim new back-up video cameras or sensors which detect objects behind a vehicle were available, and should have been installed in their SUV.” (Don Wall, “Garland family sues carmaker over toddler’s death”, WFAA-TV (Dallas-Fort Worth), Nov. 17). GruntDoc had a strong reaction to the story (Nov. 20).
Texas Watch: San Antonio State Hospital v. Cowan
James Roy Cowan, Jr., committed to the San Antonio State Hospital, hung himself with his own suspenders. His family sued the state-run hospital for not preventing the suicide. Problem: Texas law prohibits lawsuits against state entities. Plaintiffs’ creative solution: an exception permits lawsuits against the state when the state injures someone by “using” “tangible personal property”–for example, if a state employee negligently drives an automobile. Thus, plaintiffs argued, the hospital “misused” the suspenders by permitting them to remain in Cowan’s custody. A trial court and appellate court were prepared to let this theory go to trial, but the Texas Supreme Court unanimously reversed last January.
Reasonable minds may differ as a matter of public policy whether Texas taxpayers should be on the hook for damages for failing to prevent a suicide, but it hardly seems controversial that the Texas Supreme Court correctly held that the Texas legislature has not made that decision.
Except that “Texas Watch,” a plaintiffs’ lawyers’ front group (see Mar. 11), issued a report complaining that the Texas Supreme Court was “anti-consumer.” It came to this conclusion by tallying various pro- and con votes in 52 cases, and noting that the Texas Supreme Court votes against plaintiffs in 82% of that sample.
Of course, this is hardly sufficient to prove any such thing. Perhaps, as in Cowan, the problem is that the lower courts are too aggressively activist and pro-plaintiff. If so, the Texas Supreme Court’s ratio reflects that it’s simply being more reasonable than the decisions of the courts it was reviewing.
One might complain that I’m nitpicking at the Texas Watch report — except that that same report included a “Terrible Ten”, and Cowan was singled out as the most terrible of the ten at the top of the list, as the anecdote that Texas Watch thought most helpful to their argument. Leave aside for the moment whether a decision that protects Texas taxpayers is “against the public” as Texas Watch portrays it. It is telling that Texas Watch believes that it is the responsibility of the Texas Supreme Court to create rights for plaintiffs where the legislature has refused to do so; while newspapers printed rebuttals from a Texas Supreme Court spokesperson, they did little to evaluate the relative truth claims of the competing soundbites and let Texas Watch dictate the headlines. (Christy Hoppe, “High court rarely backs consumer, study says”, Dallas Morning News, Oct. 6; John Moritz, “Court goes largely against public, group says”, Star-Telegram, Oct. 6; Tama Swan, “Report finds past year’s Texas high court rulings lopsided”, Daily Texan, Oct. 7) (via Bashman).
Texas: libel not a function of the dumbest readers
In 1999, 13-year old Christopher Beamon of Denton County’s Ponder, Texas, was assigned to write a Halloween story, but when he wrote a horror tale of accidentally shooting a teacher, he earned more than an A+: the local district attorney, Bruce Isaacks, prosecuted him, and Judge Darlene Whitten ordered him detained for a week at a juvenile center.
Already one for the overlawyered files, but then the Dallas Observer printed a parody having Isaacks and Whitten go after Cindy Bradley, a fictional six-year-old girl who read Where the Wild Things Are for first-grade story time. Isaacks and Whitten sued for libel, under the theory that because the story wasn’t labeled satire, some readers might think it’s the real thing. Amazingly, a lower court was ready for this to go to a jury trial before the Texas Supreme Court stepped in Friday and unanimously voted to throw out the case. The Court noted, among other things, that the Beijing Evening News took seriously an Onion story about Congress requesting a dome with a retractable roof and that another Onion story titled “Al-Qaida Allegedly Engaging in Telemarketing” provoked a Michigan sheriff to issue a warning in a press release. (AP, “Court rules for Dallas Observer in libel suit”, Sep. 3; Jesse Walker, “Where the Wild Suits Are”, Reason, Feb.; New Times Inc. v. Isaacks opinion; Daniel Terdiman, “Onion Taken Seriously, Film at 11”, Wired, Apr. 14) (via Hit & Run).
Update, Sep. 9: Howard Bashman has a comprehensive run-down of coverage, and points us to this Dallas Observer story gloating in victory.
“Sex, lawyers, secrets at heart of sealed legal case”
According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement. (As the law firm’s web site puts it, “We believe in a team approach.”) Because of Texas’s permissive legal ethical rules, prosecutors decided they couldn’t pursue extortion charges; state law permits Roberts to bring “creative” claims and to take discovery in advance of filing a lawsuit, and the prosecution had no way of proving that Roberts’s intent in submitting the documents was a bluff rather than a “legitimate” lawsuit.
The newspaper found out only because another lawyer, Robert V. West III, sought to raise the scheme as part of a separate business dispute with the Roberts; fans of poetic justice will note that the Roberts accuse West of blackmail, and brought disciplinary charges against West and his lawyer to the state bar. The bar is investigating West, but, apparently, not the Roberts. Everyone involved denies any wrongdoing. Roberts unsuccessfully brought suit to prevent publication of the story, but the court records remain sealed. (Maro Robbins and Joseph S. Stroud, Jun. 13) (via Bashman).