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Androvett Blog

by Androvett Legal Media & Marketing at 6:00:00 am

From the legal debate over bathrooms, to the battle over renaming a Houston law school, to a billion-dollar-plus jury award, Texas was home to some of the nation's most intriguing legal news of 2016. The following is a list of the year's top Texas legal stories as determined by the staff of Androvett Legal Media & Marketing:

 

  1. Shadow of Scalia and Texas Cases

The unexpected death of Justice Antonin Scalia on Feb. 13 while on a hunting trip at Cibolo Creek Ranch in far West Texas sent shockwaves through the nation’s legal system. And Senate Republicans immediately declared that no confirmation hearings would be considered until after the inauguration of the 45th president. The Supreme Court continued to hear and decide cases with just eight justices for the remaining 10 months of the year. The absence of the conservative Justice Scalia hung over opinions in three hot-button cases from Texas involving immigration, abortion and affirmative action. But in the end, only affirmative action might have been affected. In the landmark Fisher v. University of Texas, a 4-3 vote (Justice Elena Kagan recused herself) upheld UT’s affirmative action admissions policy and created national precedent. The vote likely would have been a tie – with no precedent – had Scalia been on the bench. On immigration, the court deadlocked 4-4 letting stand a Texas-instigated injunction blocking a presidential order protecting millions of immigrants from deportation. And on abortion, the court rejected most of Texas’ stringent new restrictions on a 5-3 vote.

 

  1. What’s in a Name?

Founded in 1923, the South Texas College of Law is the oldest law school in Houston and third-oldest in the state. Long on prestige and history, what the school was lacking in 2016 was geographic recognition. Citing a failure by many to connect the school with Houston, the school announced in June that it was rebranding as “Houston College of Law.” Charging that the downtown law school’s new moniker was too similar to its own University of Houston Law Center, UH filed a trademark infringement suit to block the name change. In early November, the school briefly known as the Houston College of Law changed course and adopted the name South Texas College of Law Houston. 

 

  1. A Decisively Blue Legal Island

In 2016, the presidential coattails were long and swift enough for Harris County voters to jettison not just incumbent GOP judges, but also the district attorney, Devon Anderson. Unlike Republican Pat Lykos, who dodged Obama’s 2008 presidential reelection coattails to become the first female elected Harris County district attorney, Ms. Anderson faced many problematic issues of her own in her re-election bid. The biggest was that her office jailed a rape victim as a material witness, and that victim was assaulted while in jail. As a result, Kim Ogg is set to become the first Democrat to be Houston’s top prosecutor since the olden days, way back when it seemed everyone in Texas was a Democrat.

 

  1. AG Charges Dismissed, Refiled

After more than a year of fighting federal allegations of securities fraud, Texas Attorney General Ken Paxton scored a major legal victory on Oct. 7 when U.S. District Judge Amos Mazzant III announced he was dismissing charges. However, the relief was short-lived. On Oct. 21 the U.S. Securities and Exchange Commission refiled the civil lawsuit, which accuses then-State Rep. Paxton of recruiting investors for a technology company without acknowledging that he was earning a commission. In addition to the refiled federal civil suit, Paxton faces separate state criminal charges of securities fraud.

 

  1. Dallas DA Steps Down

With her first year in office marked by extended leaves of absence to address depression and other issues, Dallas County District Attorney Susan Hawk seemed ready to put the past behind her. Responding to the Jan. 8 news that a legal challenge calling for her removal from office had been dismissed, she said: "I can't tell you how happy I am. I can't tell you how ready I am for this fresh start and just to get back to work." But by spring, her personal troubles had returned and she reportedly was showing up to her office only sporadically. On May 20, just 17 months into her tenure, Ms. Hawk resigned. The search for a replacement stretched through the summer and fall, until Dec. 6 when Gov. Greg Abbott announced he had appointed former state district Judge Faith Simmons Johnson to fulfill Ms. Hawk’s remaining term.

 

  1. Campus Carry Concerns

The irony was impossible to ignore. On Aug. 1, the 50th anniversary of the University of Texas Tower shooting and one of the most tragic days in state history, SB 11, the so-called “campus carry” law went into effect. Individuals over 21 with a handgun license may now carry guns into all public university buildings, including classrooms and private offices. Sports stadiums and day care operations are excluded. The law produced a wave of petitions and protests, but after four months, protests have diminished and no gun-related incidents have been reported. Currently, 10 states allow guns on college campuses, with at least one more working on legislation.

 

  1. Fight for ABA Accreditation

From the day the doors opened at the UNT Dallas College of Law in 2014, officials were up-front about their intention to provide a low-tuition option for a diverse group of students, including those who needed a helping hand or second chance at law school. Local and legal community support soared, but the school still needed to earn American Bar Association accreditation for students to sit for the bar. And with the first group nearing graduation, the clock was ticking. Following a year-long accreditation process, the ABA announced it would defer any accreditation decision, pending additional review. A final decision on whether UNT Dallas will become Texas’ 10th accredited law school may come in 2017, but graduating students received an early Christmas present when the Texas Supreme Court ruled on Dec. 14 that they would be able to take the bar exam regardless of the school’s accreditation status.

 

  1. Bathroom Battle Ignited

Squarely at the intersection of social and legal concerns, the question of who should be allowed to use what bathroom at department stores and gyms quickly became one of the most divisive issues of 2016. But it was the announcement by Fort Worth ISD Superintendent Kent Scribner that the district would allow students to use the bathroom that matched their gender identity that ignited a firestorm. Lt. Gov. Dan Patrick labeled Scribner a “dictator” and called for his resignation. In August, a Texas federal court blocked President Obama’s executive order requiring all schools to adopt similar policies. Patrick now says a comprehensive bathroom bill will be a primary focus in the upcoming Texas Legislature, despite projections from the Texas Association of Business that such a law could mean economic losses of more than $8.5 billion annually and put up to 185,000 jobs at risk.

 

  1. Billion-Dollar Verdict

There was no shortage of headline-generating court battles in Texas during 2016. There was a $300 million verdict for VirnetX in its patent infringement fight against Apple and the $145 million court win for T. Boone Pickens and Mesa Petroleum Partners involving a failed Permian Basin oil deal. But it was a Dec. 1 product liability jury verdict over hip implants from the U.S. District Court for the Northern District of Texas that may have the most lasting impact. After hearing searing testimony of the pain and complications suffered by six patients who got Pinnacle hip implants, the jury returned a verdict of more than $1 billion against Johnson & Johnson and its DePuy Orthopedics subsidiary for the negligent design and marketing of the metal-on-metal implant. Earlier in the year, a Dallas jury awarded more than $500 million to plaintiffs in a similar Pinnacle case. The Dec. 1 verdict was the largest punitive award against a company in 2016.

 

  1. Baylor Sexual Assault Scandal

Baylor University faced a different kind of bear when a sexual assault scandal enveloped the football program. First, there was the 2015 conviction of a promising football player for rape, but it was a story on ESPN’s “Outside the Lines” in February this year that led to outrage. The investigation centered on allegations that school and football team leaders had turned a deaf ear to multiple claims of sexual assault by athletes over a five-year period. The school failed to report a single incident. Baylor hired the Pepper Hamilton law firm to investigate. Although the full report has never been made public, Baylor President and Chancellor Ken Starr, Athletic Director Ian McCaw and head football coach Art Briles all were ousted or left. The U.S. Department of Education’s Office of Civil Rights launched an investigation after Baylor’s former Title IX coordinator filed a formal complaint with the office. The school now says 17 women reported sexual or domestic assaults by 19 football players, dating back to 2011; four allegedly involved gang rapes. An alumni group commissioned a recent report that concluded the scandal could cost the university more than $220 million through settlements, investigative costs and revenue losses.

 

by Androvett Legal Media & Marketing at 9:05:00 am

Late last week, Republican lawmakers in Congress effectively suspended the Obama administration’s tight restrictions on work hours and rest breaks for the nation’s interstate truckers. Under the Trump presidency, it’s expected that lawmakers will establish new standards for the industry, covering not only hours on the road but also increased weight limits and the length of double trailer combinations.

Dallas attorney Peyton Inge of Chamblee Ryan Kershaw & Anderson, whose clients include trucking companies, says some restrictions needed to be loosened:

The industry has found that the restrictions during the past few years actually increased the risk of accidents by forcing more trucks onto the road during rush-hour periods, leading to increased congestion and road safety risks. We’ve also seen that increased regulations have disproportionately affected smaller trucking companies, and that rolling back regulations historically can allow these companies to expand while reducing costs to the consumer.  This change should also allow individual drivers and their employers greater flexibility in setting off-duty time, rest periods and overall business operations.”

For more information or to set up an interview, contact Barry Pound at 800-559-4534 or barry@androvett.com.

by Androvett Legal Media & Marketing at 1:40:00 pm

A Dallas jury’s record $1 billion-plus product liability verdict is sending ripples through legal and medical device circles. Recently, jurors in the third bellwether MDL trial returned with a doozy of a verdict for six plaintiffs who suffered serious medical complications from defective Pinnacle hip implants manufactured by Johnson & Johnson and its DePuy Orthopedics subsidiary. The panel of six women and three men deliberated about eight hours before finding J&J and DePuy responsible for negligently designing the implant and failing to warn patients about dangerous health consequences.

The verdict includes more than $30 million for injuries, pain and suffering, and more than $1 billion in punitive damages against J&J and DePuy, based on the jury’s finding that the defendants had acted with malice or fraud. The punitive award was the largest against a company in 2016, according to Bloomberg, which noted “such punishment damages are intended to dissuade defendants from continuing sanctioned practices.”

“The jury is telling J&J that they better settle these cases soon,” lead attorney Mark Lanier told Bloomberg.  “All they are doing by trying more of these cases is driving up their costs and driving the company’s reputation into the mud.”

In addition to Mr. Lanier, the Lanier Law Firm trial team included Alex J. Brown, M. Michelle Carreras, Dr. Robert Leone and Kevin P. Parker. Also orchestrating the win were Richard Arsenault and his team of lawyers from Neblett, Beard and Arsenault, as well as Jayne Conroy and her team from Simmons Hanly Conroy and Khaldoun Baghdadi with Walkup, Melodia, Kelly & Schoenberger

Writes Bloomberg:

The verdict continues a losing stretch for J&J before U.S. juries. Six of the seven largest product-defect verdicts in the U.S. this year have been against J&J units, including three in lawsuits claiming its talc products cause ovarian cancer.

Despite its pledge to appeal Thursday’s verdict, J&J shouldn’t wait for an outcome to approach hip patients with settlement offers, said Erik Gordon, a University of Michigan law professor, who teaches classes about how drugs and medical devices are developed and regulated.

“They may think they have good defenses to these claims, but they don’t seem to be working with juries,” Gordon said. “There’s no easy way out of these cases now that they have a billion-dollar verdict against them. They better start thinking of how they can settle these claims before the price goes up any more.”

Writes Consumer Reports:

The decision marks the latest turn in a medical drama that has seen nearly 100,000 prosthetic devices recalled, led to thousands of hip-replacement lawsuits, and been referred to by a leading medical journal as “one of the biggest disasters in orthopedic history.”

With the fourth bellwether now set for next September, the question on many minds is whether this record verdict will nudge the defendants toward settlement. Lanier tells Texas Lawyer that Johnson & Johnson would be wise to take note of the trial's outcome.

With the fourth bellwether now set for next September, the question on many minds is whether this record verdict will nudge the defendants toward settlement. Lanier tells Texas Lawyer that Johnson & Johnson would be wise to take note of the trial’s outcome.

 

 

With the fourth bellwether now set for next September, the question on many minds is whether this record verdict will nudge the defendants toward settlement. Lanier tells Texas Lawyer that Johnson & Johnson would be wise to take note of the trial’s outcome.

 

I'd love to take credit for some great, huge, hard-to-believe win. But the bottom line is, in spite of the media machine that Johnson & Johnson pumps, these are easy cases. This company was flat wrong, they did some horrible things and their best appellate point is, 'Gee, the jury shouldn't be allowed to know everything we did.' That's pretty pathetic.”

For more information, contact Robert Tharp at 214-559-4630 or robert@androvett.com.

 

by Androvett Legal Media & Marketing at 10:38:00 am

A lawyer for former NFL players seeking damages and medical treatment for brain injuries suffered while playing football says the U.S. Supreme Court’s rejection today of a legal challenge to a $1 billion settlement from the NFL means players can get the help they need.

Matthew Matheny, a lawyer with Provost Umphrey LLP in Beaumont, who represented some of the players said:

“We are very pleased that today the United States Supreme Court rejected the appeals of a very few objectors to the NFL concussion settlement. The court’s decision should allow the settlement to become final and effective, meaning that thousands of former players will soon have the opportunity to receive the medical screening, diagnosis and treatment – as well as the compensation – they deserve. We expect the details of the baseline assessment and compensation programs to be forthcoming.”

For more information, contact Mark Annick at 800-559-4534 or mark@androvett.com.

by Androvett Legal Media & Marketing at 10:43:00 am

A planned TV show about the late Tejano singing star Selena has hit a legal barrier. Her father Abraham Quintanilla Jr. filed a lawsuit in a Texas court to stop the new series based on a book by her husband Chris Perez. Her father argues that only Selena’s estate can authorize  the TV show and that because her widowed husband made an agreement for a portion of the estate, he can’t make his own separate deal for a TV show.

Estate planning lawyer Aaron Dobbs, of the Sugar Land, Texas, office of Roberts Markel Weinberg Butler Hailey PC, says:

“Family settlement agreements, such as the one outlined by Mr. Quintanilla, are highly favored by Texas courts and generally will be upheld and enforced in a court of law. It appears that Selena's family agreed on who may use her name, voice, signature, photograph or likeness in the media, and that authority may  lie with the estate or someone other than Mr. Perez. Such a family settlement agreement is a binding contract. So unfortunately for her husband, using Selena's likeness without authorization may result in liability for breach of contract. He could be liable for damages.”

“As with an individual's property right in a bank account or house, an individual in Texas has a property right in the use of his or her name, voice, signature, photograph or likeness after death. This property right is transferable by contract or through a last will and testament, trust or other testamentary document. If the property right has not been transferred through one of those means, then Texas law dictates who inherits the property right. Of course, this does not necessarily stop family members from fighting over the inheritance and use of a deceased person's name, voice, signature, photograph or likeness.”

For more information, contact Mary Flood at 800-559-4534 or mary@androvett.com.