juries Archives

Hip Suit Needs Lawyer Replacement

By: The Editorial Board

‘Only God makes a perfect hip,” trial lawyer Mark Lanier once observed, which must be news to millions of patients who’ve needed a hip replacement. But Mr. Lanier’s specialty is suing over those replacements, and this week he was slapped down for distortions in court.

On Wednesday the Fifth Circuit Court of Appeals overturned a verdict that awarded $151 million to five people who claimed to have suffered from Johnson & Johnson’s Pinnacle hip implants. The three-judge panel ruled that U.S. district court Judge Ed Kinkeade in Dallas had erred in allowing Mr. Lanier to present “inflammatory character evidence” against J&J.

Mr. Lanier’s stunts were so “obvious, egregious and impactful” that they prejudiced the jury against the company, wrote appellate Judge Jerry Smith. The jury had originally awarded $502 million before Judge Kinkeade reduced it to the merely extortionary $151 million. That would still be a nice payday for Mr. Lanier, since tort lawyers in Texas typically get 40% of the award.

Though it was irrelevant to the case, Mr. Lanier regaled the jury with alleged tales of how J&J associates may have paid bribes in Saddam Hussein’s Iraq. He also recounted a former employee’s allegations of racism at Johnson & Johnson. “Lanier tainted the result by inviting the jury to infer guilt based on no more than prior bad acts” and “that alone provides grounds for a new trial,” Judge Smith wrote.

Mr. Lanier also told the jury that two of his expert witnesses were unpaid and thus unbiased. “Lanier repeatedly leveraged the false contrast between [Johnson & Johnson’s] paid mercenaries and the plaintiffs’ unpaid altruists to his clients’ advantage,” Judge Smith wrote. But Mr. Lanier had already donated $10,000 to a charity on one witness’s behalf, and after the trial he paid the two of them a total of $65,000.

“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” Judge Smith wrote. “That’s deception, plain and simple. And to follow that up with a post-trial ‘thank you’ check merely compounds the professional indiscretion.”

The case is headed for a retrial with Mr. Lanier (alas) and the same judge, who we hope has learned a lesson in policing dishonesty.

“Monkey Selfie” Lawsuit Comes to a Close

The Ninth Circuit yesterday said Naruto the monkey cannot sue a photographer for copyright infringement, bringing the years long “monkey selfie” case to a close.

The case began when photographer David Slater published a “selfie” that Naruto took of himself. PETA later filed suit, saying it was the monkey, not the photographer, that owned the copyright and should be the one to receive any financial benefits. The Ninth Circuit yesterday disagreed, saying that animals do not have standing unless the law plainly states it.

The “monkey selfie” lawsuit was named the “Most Ridiculous Lawsuit of 2015” by the U.S. Chamber Institute for Legal Reform’s Faces of Lawsuit Abuse campaign after a series of online polls throughout the year. The case again made the list at number four in 2016. It is the only lawsuit to make the list twice.

Litigator of the Week: Tyler Lawyer Wins $43M Med Mal Verdict Against Hospital

By: John Council

Reid Martin recently convinced a state jury to hit an East Texas hospital with a $43 million verdict and a rare gross negligence finding. And he did it with testimony from the hospital’s own doctors.

Martin represents Billy Pierce, who sued Tyler’s East Texas Medical Center in 2014 for medical malpractice and gross negligence for violating its own bylaws by allowing a doctor on probation from the Texas Medical Board to treat Pierce.

According to his petition, Pierce, a 61-year-old senior vice president of X-Chem, was placed under the care of Dr. Gary Boyd in 2014. He was admitted to the hospital for treatment after a CT scan showed showed stones in his bile duct.

But pursuant to the hospital’s own bylaws, Boyd’s privileges should have been suspended in 2014 because he was on probation from the Texas Medical Board. He was placed on probation a year earlier for inaccurately diagnosing a patient and performing unnecessary procedures.

Jurors heard testimony that Boyd erroneously diagnosed Pierce with an anatomical abnormality that would make surgery to remove bile duct stones impossible. Pierce was left in a medically induced coma for over a month and claimed he was effectively abandoned by Boyd and the hospital.

When ETMC finally sought a second opinion, a new doctor rejected Boyd’s diagnosis and performed surgery to remove Pierce’s bile duct stones without complication. Pierce later had to undergo a liver transplant because of the misdiagnosis, is currently on organ rejection medication, and can no longer work.

While the hospital contended at trial that it provided the appropriate medical care for Pierce, Martin refuted that with testimony from ETMC’s own doctors.

“Three guys told about how Boyd was a problem and that the hospital knew [Boyd] was a problem and didn’t do anything about it. It was beautiful to see,’’ Martin said. “I think that was monumental in a medical malpractice case to have doctors standing up for their patent and against the hospital.’’

The jury’s Jan. 30 verdict concluded the hospital committed gross negligence, and awarded Pierce the $43 million, including nearly $18.6 million for loss of earning capacity and $25 million in exemplary damages. The jury also found the hospital was 90 percent liable for damages, while Boyd was 10 percent liable.

Boyd settled with Pierce before trial.

Stan Thiebaud, a partner in Dallas’ Thiebaud Remington Thornton Bailey who represents ETMC, did not return a call for comment.

“It’s very rare to get a gross negligence finding in a medical malpractice case against a hospital. In this case, I asked the jury for $20 million and they gave me $25 million in exemplary damages,’’ Martin said.

Martin believes Pierce may have been able to keep a majority of the jury’s verdict, even with Texas’ strict tort reform laws that cap plaintiff’s damage awards against hospitals.

But Martin entered into a high/low agreement with the ETMC’s insurer a week before the conclusion of the trial. Their agreement was that Pierce would receive a low of $4 million regardless of how the jury ruled or a high of $9 million if the jury’s verdict exceeded $9 million, Martin said.

“We got the $9 million because the verdict was above that. That was with no appeals and with money to be paid within 30 days of the verdict,’’ Martin said, who notes his client’s quality of life has been stolen because his liver transplant requires him to be on anti-rejection medication and requires frequent hospitalization.

“And it’s a good resolution for this family because they went through hell and back,” he added.

Ladies and Gentlemen of the Jury, Please Wake Up!

By: Nicole Hong

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake.

“From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring,” says John Gleeson, who was a federal judge in Brooklyn for 22 years. “We’re the dullest people in the world, for Christ’s sake.”

In a typical criminal trial, 12 jurors in a boxed area listen for hours at a time to testimony, with a few breaks and a lunch hour. Some trials last several months.

“Every lawyer thinks they’re saying the most interesting thing anybody could ever hear,” says Mr. Gleeson, now a partner at Debevoise & Plimpton LLP. But trial testimony, he says, can be “deadly boring.”

Jury consultants say the ennui is exacerbated by shrinking attention spans of the smartphone era.

During jury selection, the judge and lawyers interview prospective jurors to find biases, including questions about hobbies, news sources and other topics.

Lawyers say they watch for prospects already napping during jury selection.

When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

There are no concrete rules for when a judge should dismiss a juror for sleeping. Lawyers say it depends how long they were napping and whether they snoozed through crucial testimony.

In one current trial, Manhattan federal prosecutors are seeking to convince a jury that a Turkish banker is guilty of helping Iran evade U.S. sanctions. The testimony has focused on emails, spreadsheets and wiretapped calls—mostly in Turkish and translated by a live interpreter.

The alleged scheme is so complex prosecutors asked one witness to draw the banks and front companies involved on a large sheet of paper. By the end, the witness had drawn a maze of boxes connected by multicolored lines and arrows to indicate the money flow.

One juror was visibly asleep throughout the first week, his head propped in his hand or rolled into his chest. Occasionally, he awoke to sip water or jot notes before resuming his nap. His eyes were closed during much of the government’s most important witness testimony.

Late last week, U.S. District Judge Richard Berman dismissed the juror, telling the court he was “really sound asleep…not just dozing.”

Judge Berman said when the juror was asked during jury selection what he did in his spare time, the juror said sleep. “He seemed like a very nice fellow,” Judge Berman added.

Judge Berman declined to comment further on the dismissal.

In Brooklyn federal court last week, U.S. District Judge Pamela Chen addressed a somnolent juror in the trial of three former South American soccer officials accused of corruption.

“And as I am speaking to you, you are yawning,” Judge Chen said, telling the juror that he seemed to be asleep and struggling to stay alert.

The juror collected his backpack, beanie and glasses and was excused.

A clerk for Judge Chen said she doesn’t comment on active trials.

The Sixth Amendment guarantees the right to a speedy trial before an impartial jury. American colonists adopted the centuries-old English concept of using laypeople to determine guilt or innocence, partly because colonists trusted fellow citizens more than they trusted British judges, says Valerie Hans, a Cornell Law School professor who studies juries.

To keep jurors attentive, Ms. Hans says, more courts could allow jurors to take notes during testimony—a practice some states previously banned because judges thought note-taking was distracting.

Veteran attorneys have strategies to combat lethargy: Ask the judge to take a break before an important witness; place less-exciting testimony in the morning, not during the post-lunch food coma; walk close to the jury box and speak loudly.

Judges may make eye contact with a juror next to a sleeper and motion to elbow that person awake.

The government and defense are generally careful not to call out a sleeper in open court, to avoid embarrassment and turning the juror against one side.

Former prosecutors say jurors may suffer shock when sitting through a trial for the first time and realizing it is much slower paced than trials on shows such as “Law & Order.”

“On a murder case, if you have 150 pieces of evidence, you have to put an officer on the stand” to testify about each one, says Vincent Cohen, a Dechert LLP partner who was once acting U.S. attorney in the District of Columbia. “They don’t show that on TV.”

A sleeping juror is often viewed as negative for the prosecution, because the government has the burden to prove the defendant’s guilt beyond reasonable doubt.

“If you’re a criminal-defense lawyer,” says Joshua Dubin, a New York jury consultant and defense lawyer, “you pray the jurors fall asleep during the government’s case and wake up during the cross-examination.”

The situation gets particularly awkward if a judge falls asleep. “Everybody knows, so you just keep going,” says Steven Feldman, a former federal prosecutor now working at Murphy & McGonigle. “When you really need the judge, you say ‘objection’ really loudly, so the judge comes awake.”

Sometimes, there’s reasonable doubt a closed-eyed juror is asleep. During a recent retrial in Palm Beach County, Fla., defense lawyers alleged in court filings that a juror slept through critical testimony. After the guilty verdict, they asked Judge Glenn Kelley to order a new trial.

Judge Kelley said in court he saw the juror was closing her eyes while still moving her hands and thumbs—a sign she was awake. (A court manager says the court prohibits judges from commenting to reporters on open cases.)

“She has always been paying attention,” Judge Kelley said, and denied the motion.

Phoney Lawsuits: How to sue your way out of college debt

By: John O’Brien

Former students still saddled with college loans were urged by lawyers and debt-relief companies to stop making payments because filing a lawsuit was an easier way to get out of debt, according to racketeering allegations against two law firms.

On Oct. 18, Navient Solutions, the nation’s largest student loan company, filed a racketeering lawsuit in Virginia federal court that alleges a “grave abuse of the law” bilked it out of millions of dollars owed to it. Debt-relief counseling offered by the defendants was actually a tutorial on how to manufacture a lawsuit under the federal Telephone Consumer Protection Act, a 1991 law designed to punish telemarketers.

“Unlike other firms, the… defendants have not been content to merely seek out clients with colorable TCPA claims,” the complaint says.

“Rather, they have collaborated with the Recruiting Defendants and others to recruit clients to manufacture TCPA claims where no claims previously existed.

“In many cases, they did this by inducing borrowers who were current on their loans to become delinquent, thereby causing (Navient) to call them where it had not already been doing so.”

Named as defendants are the law firms Krohn & Moss of Chicago and the Law Offices of Ryan Lee of Scottsdale, AZ. The companies that allegedly recruited former students who would become TCPA plaintiffs are National Consumer Advocates of Northridge, CA, and MB Consulting & Investing, a South Carolina company owned by Michael Biancone.

In an interview with Legal Newsline, Biancone denied participating in any scheme while his company worked with NCAI and fellow defendant Doug Johnson. He also says none of his clients ever mentioned a TCPA scheme after he sent them to NCAI.

“The script, the scheme – nothing,” Biancone said. “I used to tell people that I’m not a part of Doug, and Doug’s not a part of me.”

Many companies have accused plaintiffs of being in the profession of creating TCPA lawsuits. Instances include:

-A Polish immigrant said to have made more than $800,000 by filing more than 30 lawsuits in New Jersey;

-A woman who bought cheap cell phones and gave them repurposed numbers with Florida area codes because she figured debt collectors would call the numbers to contact the previous owner; and

-A Los Angeles man who attributed his many phone numbers to businesses he runs in classified ad sections to invite calls from other business groups.

Now, Navient says the TCPA, which provides for either $500 per violation or $1,500 for more egregious violations, is being used to cheat it – “These attorneys frequently bring class action claims against large defendants and use the threat of potentially crippling damages to extract settlements for suits that may be of questionable merit or which depend on unsettled legal issues.”

Navient’s lawsuit has its genesis in a dispute between NCAI and Krohn & Moss that was filed in April 2015 in Los Angeles County Superior Court.

NCAI filed its lawsuit against Krohn & Moss, Johnson and Biancone. It alleged the three recruited it to assist clients in documenting “legal violations” and that they violated an agreement by not paying NCAI.

“Defendants would refer clients to NCAI, and would, by and through its representative Johnson and Biancone, document a certain amount of ‘violations,’” NCAI’s third amended complaint says.

“These ‘violations’ were monitored by Johnson and Biancone pursuant to K&M’s criteria regarding the same and once the criteria was achieved, the clients were referred back to K&M for litigation.”

NCAI said an addendum in consumer contracts required clients to allow settlement proceeds to be distributed to NCAI to satisfy their obligations to NCAI, which claimed in the lawsuit it was still owed at least $250,000 from these settlements.

In court filings, Biancone said it was NCAI that used unethical practices and withheld commissions owed to him. He added that he never had any relationship with Krohn & Moss, dealing only with NCAI through a market service agreement.

“Whatever they were doing, I was not privy – I had no idea about it,” Biancone said. “It was just their operations. I would learn later that maybe someone would win a case or got their debt forgiven by Navient under TCPA or whatever arrangement.

“What NCAI wanted was to get that money sent directly to NCAI to fulfill the rest of the agreement for debt relief. Krohn & Moss argued they can’t do that, but what (Richard Murkey of NCAI) was doing was fishing: ‘Let’s just take them to court and maybe I’ll win, or maybe they’ll settle.’”

Murkey is a disbarred attorney with a history of legal troubles who is listed as NCAI’s chief executive officer, secretary and chief financial officer.

Once the whole mess settled, Navient filed its lawsuit.

The alleged scam began with the two recruiting defendants, MB Consulting and NCAI, offering counseling and other debt-relief services to former students struggling to repay loans.

Once recruited, the client was allegedly given a script after stopping payments, intended to help create a TCPA claim when Navient called about the delinquent payments.

The alleged script told the client to confirm the name of the caller, confirm the amount owed on the loan and then say, “I ask that you please stop calling me and correspond with me in writing from this point forward.”

The client maintained a log of calls and communicated with Biancone and Doug Johnson of National Consumer Advocates, the lawsuit says.

“In the event that (Navient) stopped making telephone calls, clients were advised to contact (Navient) again to discuss their loans,” the suit says.

“This action was aimed at causing (Navient) to begin calling that customer again to increase the potential damages that could be asserted in any given case.”

Once the client appeared to have a chance at making a TCPA claim that, considering the statutory per-violation penalties, was close to equaling the amount of debt he or she still owed, the recruiters passed them off to the law firms using illegal fee-sharing and referral agreements, the lawsuit says.

However, if the scheme didn’t work, the credit rating of the client was ruined, the suit says.

Navient says the scheme caused it to pay settlements to dozens of customers and cancel hundreds of thousands of dollars in student loans.

It costs a company approximately $100,000 to defend a TCPA claim through trial. That figure goes up to $500,000 if the case is certified as a class action. That amount doesn’t include any potential jury verdict, only legal fees.

Once a lawsuit or arbitration proceeding was filed, the law firms told the client to conceal the roles of the recruiting defendants, the suit says. The client was instructed to lie about the script and that they were taught how to trick Navient into calling more frequently, the suit says.

Navient says it paid more than $1.1 million in settlements to plaintiffs it believes were a part of the scheme, as well as more than $500,000 in attorneys fees.

It provided the case of a divorced couple as an example.

Kyle Bates paid $380 per month to NCAI, the same amount he was supposed to be paying Navient per month on a loan with an outstanding balance of $40,000, the suit says.

Kyle allegedly utilized the script, at the instruction of NCAI’s Johnson, and told ex-wife Emily about the scam.

Emily reluctantly participated in an effort to protect her credit and was provided the script by Johnson, the suit says. In 2015, the two sued Navient in Indiana federal court, represented by K&M.

Emily, after a settlement, took part in a deposition in November 2016 and revealed the alleged scheme. She also claimed Kyle had lied about the existence of the scheme.

“On or about Dec. 6, 2016 – less than a week after Emily Bates’ deposition uncovered the details of the scheme – Kyle Bates dismissed his claims with prejudice,” the suit says.

The complaint is filled with the tales of several more borrowers who took action against Navient. It makes claims for violations of the Racketeer Influenced and Corrupt Organizations Act, as well as fraud and tortious interference with contract.

California consumer files an array of class action lawsuits against Diet Coke, Diet Dr.Pepper and Diet Pepsi

Diet Coke ads deceive consumers, class action claims

By: Jenie Mallari-Torres

A consumer has filed a class action lawsuit against Coca-Cola, alleging that Diet Coke is misleadingly marketed as a weight-loss beverage.

Shana Becerra of Santa Rosa filed a complaint on behalf of herself, all others similarly situated and the general public on Oct. 16 in the U.S. District Court for the Northern District of California against the Coca-Cola Co., alleging that the beverage company marketed a product that is likely to deceive reasonable consumers.

According to the complaint, Becerra and others have been harmed from the defendant’s misleading and unlawful practice of falsely advertising the nutritional value of its beverage products. The beverages contain aspartame, an ingredient associated with diabetes and metabolic and cardiovascular diseases, the complaint says.

The plaintiffs hold the Coca-Cola Co. responsible because the defendant allegedly failed to disclose the increased risk of weight gain and chronic diseases from the usual consumption of the product, and falsely represented that their products have good characteristics, uses or benefits.

The plaintiffs request a trial by jury and seek judgment against defendant, certify class action, corrective advertising, restitution, statutory, compensatory and punitive damages, expenses, attorneys’ fees and any further relief the court deems necessary. They are represented by Jack Fitzgerald of the Law Office of Jack Fitzgerald PC in San Diego and Andrew Sacks and John Weston of Sacks Weston Diamond LLC in Philadelphia.

Diet Dr. Pepper falsely advertised as weight-loss drink, lawsuit claims

By: Noddy A. Fernandez

A consumer has filed a class action lawsuit against Diet Dr. Pepper, alleging that the beverage’s manufacturer has engaged in false advertisement and unjust enrichment.

Shana Becerra of Santa Rosa, on behalf of herself, all others similarly situated and the general public, filed a complaint on Oct. 16 in the U.S. District Court for the Northern District of California against Dr. Pepper Snapple Group Inc. The plaintiff alleges violations of California’s False Advertising Law and Federal Food, Drug, and Cosmetic Act (FDCA).

According to the complaint, Becerra alleges that on Oct. 16, 2013, she purchased a Diet Dr. Pepper drink because it was advertised to assist in weight loss. But the product’s non-nutritive sweeteners, like aspartarme, interfere with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes and cardiovascular disease, the complaint says.

The plaintiff holds Dr. Pepper Snapple Group Inc. responsible because the defendant allegedly failed to reveal facts that were material with respect to the consequences that may result from use of the product and failed to disclose the increased risk of weight gain, and of serious chronic disease, likely to result from the usual consumption of Diet Dr. Pepper.

The plaintiff requests a trial by jury and seeks judgment for pay all statutory, compensatory, and punitive damages, pre- and post-judgment interest, costs, expenses, attorneys’ fees and any other relief the court deems proper. They are represented by Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the Law Office of Jack Fitzgerald PC in San Diego and of Sacks Weston Diamond LLC in Philadelphia.

Class action suit calls Diet Pepsi ads false, misleading

By: Noddy A. Fernandez

A Santa Rosa consumer has filed a class action lawsuit against PepsiCo over its marketing of Diet Pepsi.

Shana Becerra, on behalf of herself, all others similarly situated and the general public, filed a complaint on Oct. 16 in the U.S. District Court for the Northern District of California against PepsiCo Inc., alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA), California’s False Advertising Law and the Consumers Legal Remedies Act.

According to the complaint, the plaintiff alleges that the defendant’s advertisement of calorie-free Diet Pepsi as a way to assist in weight loss or management is false, misleading and unlawful due to its non-nutritive sweeteners, which can lead to weight gain, increased risk of metabolic disease, diabetes and cardiovascular disease. As a result, the plaintiff suffered loss of money and health risks, the complaint says.

The plaintiff holds PepsiCo Inc. responsible because the defendant allegedly failed to disclose the harmful effects of the drink, including an increased risk of weight gain and serious chronic disease.

The plaintiff requests a trial by jury and seeks statutory, compensatory, and punitive damages, pre- and post-judgment interest, costs, expenses and attorneys’ fees, and any other and further relief the court deems proper. She is represented by Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the Law Office of Jack Fitzgerald PC in San Diego and Andrew Sacks and John Weston of Sacks Weston Diamond LLC in Philadelphia.

Calif. judge reverses $417 million award in talc powder case

By: Jessica Karmasek

A California judge last week reversed an award of more than $400 million to a woman who claims Johnson & Johnson’s talc powder caused her ovarian cancer.

Judge Maren Nelson for the Los Angeles Superior Court issued her ruling late Friday, reversing the $417 million award a jury granted in August.

Specifically, Nelson granted Johnson & Johnson’s motions for judgment notwithstanding the verdict, or JNOV, and the defendant company’s motions for a new trial — as to both parent company Johnson & Johnson and Johnson & Johnson Consumer Inc., the subsidiary that actually manufactures and markets Johnson’s Baby Powder.

Nelson, in her 51-page order, said she is “of the firm view” that the plaintiff’s expert on specific causation “ruling out” of age and ovulatory cycles “amounted to no more than speculation.”

“Her testimony that it was ‘probable’ the cause of the cancer was unknown, but then putting a ‘less than 50 percent chance’ on same (with no reasoning) likewise amounted to mere speculation,” the judge wrote.

“Those facts show that the expert did not properly employ the methodology she espoused and independent of the fact that there was no evidence of substance to rule talc ‘in,’ persuade the Court that JNOV must be granted to JCCI and Johnson & Johnson on the basis that no specific causation was shown.”

Nelson said in her order that “insufficient” evidence on both sides and various errors led to an award of “excessive” damages. She also noted there was some jury misconduct during the trial.

Johnson & Johnson, headquartered in New Jersey, said it was pleased with the judge’s ruling.

“Ovarian cancer is a devastating disease — but it is not caused by the cosmetic-grade talc we have used in Johnson’s Baby Powder for decades,” according to a company statement.

“The science is clear and we will continue to defend the safety of Johnson’s Baby Powder as we prepare for additional trials in the U.S.”

Mark P. Robinson Jr. of Robinson Calcagnie Inc., based in Newport Beach, California, represented the plaintiff, Eva Echeverria.

He said in a statement he would file an appeal immediately.

“We will continue to fight on behalf of all women who have been impacted by this dangerous product,” Robinson said.

The $417 million verdict returned against Johnson & Johnson in August included $70 million in compensatory damages and $347 million in punitive damages.

Echeverria, 63, said she contracted ovarian cancer in 2007 after using the company’s powder for more than 40 years.

The trial — the first talc bellwether trial in California and the first outside of St. Louis — began in Los Angeles July 10 and lasted four weeks, culminating in the single largest award to date in a talc lawsuit.

Last year, a Missouri jury found Johnson & Johnson liable for injuries resulting from the use of its talc powder, awarding the family of an Alabama woman $72 million.

Last week, a Missouri appellate court threw out the jury verdict, ruling that the case should not have been tried in St. Louis.

Like Echeverria, Missouri plaintiff Jacqueline Fox used Johnson’s Baby Powder for feminine hygiene for decades. Fox, who was diagnosed with ovarian cancer in 2014, died shortly before the trial began, in October 2015, at age 62.

Echeverria claimed Johnson & Johnson was aware of numerous studies linking talc-based powders with ovarian cancer, but chose not to warn women.

Thousands of similar lawsuits are awaiting trial across the country, including hundreds in California courts.

Johnson & Johnson says science supports the safety of its product.

It points to the National Cancer Institute’s Physician Data Query Editorial Board, which wrote in April: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”

Texas Supreme Court examines $48,000 an hour legal fee in H.L. Hunt case

By: Janet Elliott

The heir of Texas oil tycoon H.L. Hunt involved a bitter decade-long dispute with his son over control of a $1 billion trust wants the Texas Supreme Court to declare illegal his lawyers request to be paid $48,000 an hour for his legal services.

Attorney Gregory Shamoun says Albert Hill Jr. made an oral agreement to pay him a 50 percent contingency fee if he was able to settle the intense and complicated family fight – a feat he accomplished after only a few weeks working on the case.

When Hill Jr. refused to pay claiming the legal fee was ludicrously too high, Shamoun sued and won a $7.25 million award – or an estimated $48,000 an hour – from a jury.

The fee dispute is only the latest in a long and heated legal battle between Hill Jr. and his son, Albert Hill III. The two men have filed more than 20 lawsuits against each other and their lawyers in what the Texas appellate courts described as a “spider web of litigation.” More than 100 different lawyers have worked on the case.

The idea of a settlement was deemed impossible when Hill Jr. asked the flamboyant Shamoun, who once called a donkey named Buddy to testify in a court case, to make a fresh attempt to settle all of the cases against Hill’s son, who is known in Dallas as “Al Three.”

To everyone’s surprise, Shamoun successfully negotiated a global settlement for $40.5 million that left Hill Jr. in exclusive control of the family trust.

Shamoun says he was never compensated for his work and took Hill to court for breach of contract, citing an oral fee agreement with Hill that allegedly promised a 50-percent share of any settlement that fell between $55 million and $73 million.

The legal fee dispute reached the Texas Supreme Court last week with Shamoun’s $7.25 million jury award hanging in the balance.

Critics of the award, including the State of Texas, say it represents a “shocking” contingency-fee rate of $48,000 per hour for 150 hours of work and is illegal under a state law that requires contingency fee contracts be signed and in writing.

As all things involving the Hills’ litigation, the case took on an added twist when Hill Jr.’s lawyer, Gibson, Dunn & Crutcher partner James Ho, was one of two people nominated three weeks ago by President Trump to a judgeship on the U.S. Court of Appeals for the Fifth Circuit.

The other nominee is Texas Supreme Court Justice Don Willett, who is one of the judges deciding the Hill litigation.

Ho honed in on the contingency-fee nature of the award, saying the dollar amount isn’t as much an issue as the illegal nature of an oral fee agreement that is contingent on the outcome of a case. Such an arrangement is illegal, Ho said, under the Texas “statute of frauds,” a provision in the Government Code pertaining to attorney conduct.

“What the Legislature has chosen in this very historically sensitive area of contingency fee is that you have to get that signed into writing, specifically to make sure that the client has in fact” agreed to terms, Ho said.

Texas Solicitor General Scott Keller, who supports Hill Jr.’s contention that the oral fee agreement was unenforceable, said Shamoun deserved to be paid his regular hourly rate of $600 an hour for a total recovery of $90,000.

Former Texas Supreme Court. Chief Justice Wallace Jefferson, who represents Shamoun in the litigation, invited the justices to put themselves in the shoes of the jury who heard evidence about specific phone calls involving Shamoun, Hill, and Hill’s longtime personal lawyer Frances Wright in reaching the oral agreement about Shamoun’s compensation.

Hill was insistent that all of the cases be settled before an upcoming trial involving racketeering claims and perjury allegations, Jefferson said, and told Shamoun he wanted him “vested” in the outcome.

When Shamoun pushed to put the fee agreement in writing, Hill denied even agreeing to the terms and then fired Shamoun, Jefferson said.

“You read this testimony and it becomes clear,” Jefferson said. “The jury was asked what is reasonable under these circumstances.”

Jefferson said the jury’s award was based on the reasonable value of Shamoun’s services and was less than the amount he would have been due under the oral agreement.

Facebook sued over birthday reminder texts

By: Jenie Mallari-Torres

A California consumer has filed a class action lawsuit against Facebook over allegations it sent text messages without his consent.

James Meyers filed a complaint on behalf of himself and all others similarly situated on Oct. 3 in the U.S. District Court for the Central District of California against Facebook Inc. alleging violation of the Telephone Consumer Protection Act.

According to the complaint, the plaintiff alleges that Facebook sent unauthorized text messages regarding birthday acknowledgements or announcements without users’ consent. He alleges that he received a text on June 14, 2016.

He alleges that the defendant has caused actual, concrete harm because individuals have suffered an invasion of their privacy and lost use of their cellphone.

The plaintiffs hold Facebook Inc. responsible because the defendant allegedly engaged in an unlawful practice of using an autodialer to send messages to recipients and without prior express consent to send the unsolicited text messages.

The plaintiffs request a trial by jury and seek judgment against defendant, injunctive relief $500 in statutory damages for each and every text message received, $1,500 in treble damages for each and every text message that violated the TCPA and an order certifying action as a proper class action. He is represented by L. Timothy Fisher of Bursor & Fisher PA in Walnut Creek, California; Scott A. Bursor of Bursor & Fisher PA in New York and Reuben D. Nathan of Nathan & Associates APC in San Diego.

U.S. District Court for the Central District of California case number 5:17-cv-02029

Fifth Circuit reverses $663 million judgment against DFW company

By: Mark Curriden

Last Thursday, President Donald Trump nominated James Ho to the U.S. Court of Appeals of the Fifth Circuit.

A day later, the federal appellate court handed the Gibson, Dunn & Crutcher partner what is likely the biggest courtroom victory of Ho’s career by reversing and rendering a $663.3 million judgment against Trinity Industries (NYSE: TRN).

While the Fifth Circuit’s reversal of the largest damage award in the history of the 154-year-old False Claims Act demonstrated Ho’s appellate law acumen, the landmark opinion showcased the brilliance of a legal legend and one of Ho’s future colleagues – Judge Patrick Higginbotham.

In a 42-page opinion, authored by Judge Patrick Higginbotham, a three-judge panel ruled that an East Texas judge and jury got it wrong in 2014 when they decided that Dallas-based Trinity provided state and federal officials false information about the safety of their highway guardrail system called ET-Plus.

The Fifth Circuit ruled that the Federal Highway Administration was fully aware of all the changes that Trinity made to its guardrails and knew all of the complaints made by the plaintiff in the lawsuit and still approved the guardrail system for full federal funding.

The FHWA approval, Judge Higginbotham wrote, means that no fraud was committed against the federal government and no legal claim can be brought under the FCA, which allows whistleblowers to sue companies that defraud the federal government.

“Here, FHWA insists that the 2005 changes did not affect the decision to purchase the end terminals either in the past or the future,” Judge Higginbotham wrote. “When the government, at appropriate levels, repeatedly concludes that it has not been defrauded, it is not forgiving a found fraud — rather it is concluding that there was no fraud at all.”

This litigation started in 2012 when Joshua Harmon, a former competitor, sued Trinity under the FCA, a 154-year-old law that allows whistleblowers to sue businesses that defraud the U.S. government. The lawsuit claimed that the company shrank its popular ET-Plus highway guardrail system in 2005 from five inches wide to four-inches in order to save $50,000 a year in costs.

Harmon’s lawyers argued that Trinity failed to inform the Federal Highway Administration about the changes, as required by law. Those changes, Harmon claimed, “had a devastating impact” on the guardrail’s performance and led to car accident victims being killed or maimed.

A jury in Marshall ruled against Trinity in 2014. Months later, U.S. District Judge Rodney Gilstrap slapped the company with a $663 million judgment, which opened the door to a flood of lawsuits that also sought billions of dollars in damages against the company.

To fight the litigation, Trinity Industries General Counsel Theis Rice hired dozens of lawyers at some of the largest and most prominent law firms in Texas and the U.S., including Akin Gump; Alexander Dubose Jefferson & Townsend; Barlett Beck Herman; Bell Nunnally & Martin; Gibson, Dunn & Crutcher; Haynes and Boone; Roach & Newton; and Sidley Austin.

Harmon had his own all-star legal team that includes a plethora of lawyers from Bois Schiller & Flexner, McKool Smith and Ward, Smith & Hill.

But the story behind the decision on whether the $663 million judgment against Trinity should stand or be reversed really has two stars: Jim Ho and Judge Higginbotham.

Trinity turned to Ho to lead its appeal. Ho took a two-prong effort: (1) argue that any allegations of fraud were immaterial if the federal government said it was not injured, and (2) show that the jury verdict was an abusive use of the FCA.

To achieve this, Ho convinced five former high-ranking Justice Department officials in the Clinton, Bush and Obama administrations to submit an amicus brief with the Fifth Circuit stating that the verdict against Trinity was “gratuitous” and improper.

“The [FCA] can be employed abusively to the detriment of the government, the public interest and private parties,” the DOJ officials argue. “This case illustrates such abuse.”

Ho also persuaded 11 states, including Texas, Oklahoma and Louisiana, to tell the appellate judges that the verdict favoring Harmon “violates the letter and spirit” of the FCA and permits the plaintiff “to commandeer the FCA for his personal advantage.”

“The potential consequences extend far beyond this case,” the states argue.

But Ho and Trinity were clearly thrown a curveball last December when Judge Higginbotham started grilling Ho only a minute into oral argument over the materiality or importance of the changes to the highway guardrails. The judge noted that he had actually read the trial transcripts, which he admitted was unusual for an appellate judge to do, and that he was disturbed by the evidence against Trinity.

“You say they are minor and they say they are killer,” Judge Higginbotham told Ho. “My suggestion to you is that materiality and causation in this case are very close companions, if not collapsible into one.

“If it is the case that this particular product was causing these catastrophic injuries, then it is very difficult to maintain the argument or to quarrel with the judgment of the jury as to materiality,” the judge stated.

Trinity’s case seemed to become more difficult when even Judge E. Grady Jolly, who is also a Republican with Judge Higginbotham, expressed doubts about Trinity’s argument. The third member of the panel, Judge James Graves, is a more liberal jurist who has a history of being pro-plaintiff.

But Ho kept his argument focused on materiality.

By nearly all accounts, oral arguments did not go well for Trinity. Even lawyers connected to Trinity’s defense team said they expected a less-than-positive decision by the appellate court.

Then, Friday’s decision was released.

Page one of the opinion showed the panel’s decision is unanimous and that Judge Higginbotham was its author, which had to cause initial heartburn for Trinity lawyers.

“The trial in this case offers two narratives,” Judge Higginbotham wrote. “One of a hardworking man who, angered by failures of guardrails installed across the United States—with sometimes devastating consequences — persuaded a Texas jury of a concealed cause of those failures.

“The other of the inventive genius of professors at Texas A&M’s Transportation Institute, who, over many years of study and testing, developed patented systems including guardrails that, while saving countless lives, cannot protect from all collisions at all angles and all speeds by all vehicles — guardrails that have been installed throughout the United States with an approval from which the government has never wavered as it reimbursed states for the installation of a device integral to the system.”

On page two of the opinion, Judge Higginbotham gave Ho and Trinity three sentences that sent the company’s stock shooting up nearly 10 percent in after-hours trading Friday.

“We will describe, but not decide, the substantial challenges to the jury’s findings of liability and damages as an essential backdrop to the challenge we ultimately sustain, one that ends this litigation,” Judge Higginbotham wrote. “We hold that the finding of fraud cannot stand for want of the element of materiality. Therefore, we reverse and render judgment as a matter of law for Trinity.”

Trinity officials praised Friday’s appeals court decision.

“As this court has previously noted, the federal government has consistently reaffirmed the ET Plus System meets all federal safety performance standards,” Trinity Chief Legal Officer Theis Rice said in a written statement. “This ruling affirms our longstanding belief that the ET Plus® System is safe and no fraud was committed. We are proud of standing strong and fighting for our beliefs.”

Legal experts say that Judge Higginbotham’s handling of the Trinity case demonstrates what an exceptional appellate judge he is.

As a former trial lawyer and federal trial judge, Judge Higginbotham has tremendous respect for juries and the decisions they made. He vigorously challenges appellate lawyers who want him to throw out jury verdicts. He did just that with Ho and Trinity.

Judge Higginbotham meticulously examined the trial court record and produced an opinion that legal experts – including many who thought the Fifth Circuit would rule for the plaintiff – will be a precedent that is cited in many False Claims Act cases to come.

In the words of one of the best trial lawyers in Dallas whose firm represents Trinity Industries, “I truly hope that Jim [Ho] respects jury verdicts and aggressively challenges companies that seek to have jury verdicts reversed, as does Judge Higginbotham.”