This could end up being the case in Laylock v. TMS Logistics, where plaintiff was awarded $3.5 million in a trucking accident, a damage award that might now be in jeopardy if juror misconduct requires a new trial. Plaintiff filed a certiorari petition (request for review) from Florida’s 1st District Court of Appeal to halt the juror interviews into the alleged misconduct before they begin. The defendant sought the interviews in connection with its pending motion for a new trial.

However, the appellate court ruled that because any harm plaintiff might suffer could be remedied on appeal, his petition was dismissed. That means the juror interviews may proceed, which could open the door for a new trial. 

According to court records, plaintiff suffered serious injuries when a driver working operating a tractor-trailer for defendant company allegedly crashed into plaintiff. The case went to trial in 2015, three years after the collision, with jurors assigning defendant 95 percent damages and plaintiff 5 percent damages and awarding plaintiff $3.5 million, which included compensation for medical bills as well as pain and suffering.

However, at a hearing just a few days after the verdict was reached, the trial court made an announcement that a juror had contacted the court and spoke to the judge’s assistant. At that time, defendant announced one of its lawyers also had spoken to a juror. The attorney in question said two jurors approached her as she left the courthouse and offered their general opinions on the case, along with specific details on jury deliberations. One juror repeated several times that jurors agreed not to follow the court’s instructions. It was at that time the company sought more information.

Plaintiff objected, but the court ordered a limited interview of one of the jurors. After that interview was conducted, the trial court weighed defendant’s motion for more interviews and ultimately found the defendant’s sworn factual allegations and testimony were evidence of juror misconduct worthy of further review. The misconduct, if proven, would require a new trial, unless plaintiff is able to show there was no reasonable possibility the alleged misconduct affected the verdict. The court then scheduled interviews with the five remaining jurors. This was when plaintiff filed his write of certiorari.

The appellate court dismissed the petition because it found plaintiff’s argument for irreparable harm to be lacking. Plaintiff’s argument that these interviews would needlessly extend litigation required little discussion because the Florida Supreme Court ruled in 2013 that continuation of litigation – including time, costs and effort – does not constitute an irreparable harm. The court rejected the other arguments too, including the violation of the sanctity of the jury, though it certified a conflict with the 2nd DCA’s 1986 ruling in Preast v. Amica Mutual Insurance Co. This means we could see this issue come up before the Florida Supreme Court.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Laylock v. TMS Logistics, Jan. 19, 2017, Florida’s First District Court of Appeal

More Blog Entries:

Truck Accidents to Rise as Poor Road Conditions Persist, Dec. 16, 2017, Miami Truck Accident Lawyer Blog

The 2nd District Court of Appeal upheld a ruling by a circuit judge granting summary judgment to Tampa General Hospital. The appeals court agreed with the judge on the central issue of whether two doctors involved in the surgery were connected to the hospital. Tampa General argued that the doctors were employed by the University of South Florida, and the hospital had delegated its duty of care and any potential liability to the university. The university’s College of Medicine uses Tampa General as its primary teaching hospital.

The lawsuit was filed by the estate of Annie Godwin against the university, Tampa General, and the two physicians, after Godwin died during surgery to remove a cancerous tumor in 2009. Godwin died due to heavy bleeding after she suffered a tear in a vein.

According to the three-judge appeals panel, there were no disputed facts undermining the conclusion of the trial court that the doctors were not employees or agents of Tampa General Hospital. The appeals court said that the physicians were employees of USF, and Godwin had signed a document acknowledging that fact.

If you need to speak with a wrongful death attorney or lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

The lawsuit was filed in the U.S. District Court for the Southern District of Texas Aug. 31 by Vallourec Drilling Products USA Inc. (Vallourec) against B.J.’s Drill Stem Testing, Inc. d/b/a Drill Tech LLC (Drill Tech).

According to the lawsuit, Drill Tech purchased 60 joints of 4-inch heavyweight drill pipe and 620 joints of 4-inch drill pipe from Vallourec. The complaint alleges that the drill pipe was delivered, but Vallourec has not received the full payment of $1,282,748.40.

Vallourec claims that Drill Tech paid a deposit of $384,824.52, but failed to pay the remaining balance. According to the complaint, the parties had agreed that the pipe would be delivered “Ex-Works,” meaning that it would be considered delivered once the seller made the goods available for pickup by the buyer. Vallourec claims that it made the pipe available for pickup, but Drill Tech failed to take physical possession after delivery, and Vallourec has therefore incurred storage and other expenses. The plaintiff further alleges that it has been unable to resell the goods, despite commercially reasonable attempts.

The plaintiff is seeking payment for past-due amounts, pre- and post-judgment interest, court costs, attorney fees and other relief to which it may be entitled. A jury trial has been requested.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

We should start by explaining first of all that in the vast majority of personal injury cases, civil attorneys accept their payment on a contingency fee basis. That means they don’t require any money to be paid upfront by the client. Instead, the attorney is only paid if the client wins. In those cases, they have an arrangement to accept a portion of the damages awarded (usually about 30 percent, though it can vary depending on the complexity of the case). That said, there are some instances in which your attorney fees can be paid by the other party (you get to keep the entire damages awarded while the defendant pays your attorney). This is allowed per the aforementioned statute when a plaintiff extends an offer of settlement that is not accepted within 30 days and then goes on to win at trial for an amount that is in excess of that offer by 25 percent or more.

So that brings us to the Anderson case. He offered to settle for a collective $1.7 million and ultimately won $1.7 million at trial. However, the state supreme court ruled that he still qualified to have his attorney’s fees covered. To understand why, we have to delve a bit deeper into the facts of the case. 

According to court records, plaintiff was attacked in a hotel parking lot by a man who robbed him, stole his car and shot him. He suffered severe injuries. He later sued the aforementioned defendants for negligence. Specifically, he alleged premises liability. The defendants had not ensured adequate security on site when there was a foreseeable risk of harm. His wife also filed claims for loss of consortium.

Plaintiff issued an offer for settlement to each of the defendants. Those offers were:

• $650,000 for the hotel;
• $650,000 for the hotel management;
• $100,000 for the hotel investor;
• $300,000 for the hotel security firm.

These offers were rejected. His wife also offered to settle and that offer too was rejected, though wife later agreed to voluntarily dismiss her claims.

The matter went to trial (twice, in fact, as the first trial ended in mistrial).

In the second trial, the hotel, management company and investment firm were collectively referred to as one entity: Embassy Suites. This was despite the fact that no such defendant was named in the complaint. Plaintiff never objected to this singular use and jurors in determining liability apportioned this singular entity with 72 percent liability, without spelling out how much each of those separate entities should pay. Embassy Suites was ordered to pay $1.25 million, while the security firm was ordered to pay $450,000.

Plaintiff then sought compensation for attorney fees. This request was turned down by both the trial court and the 5th District Court of Appeals. The reasoning was that plaintiff’s settlement offer didn’t meet the statutory criteria because damages awarded didn’t exceed 25 percent of his offer.

The Florida Supreme Court, however, disagreed. The court held that the entitlement to attorney’s fees hinges on the “judgment obtained,” as opposed to the verdict form read by the jury. The statute does not indicate that a plaintiff has to obtain a judgment from a designated party in order to be entitled to attorneys’ fees. The entitlement depends only on a sufficient offer and a judgment obtained. In this case, the court ruled, plaintiff made a sufficient offer. Further, the court agreed with legal reasoning from the 2nd DCA that held it improper to combine separate offers of settlement and then compare them to the judgment when determining a party’s right to attorneys’ fees.

Personal injury victims in Miami may call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Anderson v. Hilton Hotels Corp. , Nov. 3, 2016, Florida Supreme Court

More Blog Entries:

Police: Florida Drunk Driver Kills Tow Truck Driver, Oct. 18, 2016, Miami Personal Injury Attorney Blog

One of the notable exceptions, as outlined in F.S. 440.092(2), is the Coming and Going Rule. This rule stipulates that an injury that occurs while the worker is coming from or going to work is not an injury that “arises out of employment or in the course of employment.” The statute indicates this is true even when employer provides the transportation, so long as such transportation was available for the exclusive personal use by employee – unless the employee was engaged in some special mission or error for the employer. This doesn’t apply to law enforcement officers traveling in marked cruisers, unless they have made some distinct deviation for a non-essential, personal errand (unless the collective bargaining agreement allows for such deviations, in which case such an injury would be covered by workers’ compensation).

This coming-and-going rule is pretty well established across jurisdictions. Still, these matters continue to arise in courts across the country. Recently, Florida’s 1st District Court of Appeal weighed one such case, Quinn v. CP Franchising, in which a worker was injured in a parking lot fall at work. 

According to court records, plaintiff tripped and fell in a parking lot that was next to her work. Photos later reviewed by the Judge of Compensation Claims showed that there was a separation between the asphalt of the parking lot and the concrete curb. These images reveal show this groove is present throughout the lot wherever the asphalt and concrete meet.

Based on this observation, the judge concluded there was no special danger that led to the accident. The question then was whether employer had a certain degree of control of the area in order for the parking lot to be considered part of the employer’s premises or whether it was an area was used by the employer for work-related purposes. Evidence revealed the parking lot wasn’t leased by the employer. The employer never assigned workers their own parking spaces in the lot. However, pursuant to its lease agreement, the company did receive three dozen unassigned parking spaces that workers could use, but they were not granted exclusive access. The company paid a fee to the landlord for maintenance of the common areas of the property and plaintiff didn’t present any evidence the employer had any control over the parking lot maintenance or even how the maintenance fee was applied.

Because the parking lot was open to the public and was not used by employees in a really different way and the employer didn’t use the lot for special purpose or have control over it, there was no exception to the general coming-and-going rule, and thus the worker was not entitled to collect workers’ compensation benefits for her injuries.

Although this was a disappointing outcome for this plaintiff, it’s important to consult with an experienced injury lawyer in Miami if you have suffered a work-related injury because the facts of each case vary and could result in a different result.

If you have been injured in a work accident in Miami, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Quinn v. CP Franchising, Oct. 13, 2016, Florida’s 1st District Court of Appeal

More Blog Entries:

Police: Florida Drunk Driver Kills Tow Truck Driver, Oct. 18, 2016, Miami Injury Attorney Blog

In a case filed by Emma Gayle Weaver, the representative of Thomas E. Weaver’s estate, in Escambia County, the 1st District Court of Appeal previously upheld the constitutionality of the law permitting ex parte communications.

Under the 2013 law, defense attorneys representing medical providers accused of malpractice are able to access personal medical information of the patients involved in the lawsuit outside of the presence of the patients’ attorneys. According to Weaver’s attorneys that is a violation of privacy rights. Supporters of the 2013 law said that allowing such ex parte communications is fair, because it allows defense attorneys to access information that is already available to plaintiffs’ attorneys.

Before the law was passed, defense attorneys could interview doctors, but only as part of formal proceedings, with the patient’s attorneys present to protect their privacy rights. Advocates for patients said that the law stripped away privacy rights. Several lawsuits were filed challenging the legislation as soon as it was enacted, and the state high court will now decide the issue.

If you need to speak with a personal injury lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

Still, this “exclusive remedy” does not mean injured workers are unable to collect from negligent third parties. Those entities are not protected under the exclusive remedy provision. While workers do not have to prove their employer was negligent in order to collect workers’ compensation coverage, they do need to prove any third party defendants were negligent in causing the injury, just as they would any other personal injury lawsuit.

The recent case of Burger King Corp. v. Lastre-Torres is a third-party liability lawsuit stemming from a workplace injury. It was considered by Florida’s 3rd District Court of Appeal. 

According to court records, the fast-food restaurant chain was appealing a final judgment entered in favor of claimant, who alleged he was injured while working for a cleaning company hired to clean the restaurant chain’s equipment. The court affirmed in part the judgment, but reversed the damage award of past and future medical expenses, deeming them excessive, and remanding the matter for further consideration by the lower courts.

Plaintiff was employed by a cleaning service that contracted with the restaurant and was injured while a degreaser used to clean the hood of the fryer dripped into his eye. Plaintiff testified he had requested a mask on numerous occasions prior to his injury, but that none was ever provided. Numerous witnesses testified on behalf of defendant company, indicating there were weekly inspections made of all the equipment – including a mask that was reportedly present at that location. However, jurors reportedly concluded otherwise, and as the appellate court noted, “we are not free to substitute our opinion on such factual matters.”

An expert witness testified plaintiff would need a prosthetic eye due to the extent of his injuries.

Jurors ultimately sided with plaintiff and awarded him $931,000 in damages. That included $29,000 for previous medical expenses, $52,000 for future medical expenses, $50,000 for previous pain and suffering and $800,000 for future pain and suffering. Jurors also apportioned 90 percent of the blame onto the restaurant, meaning a final judgment was entered in the amount of $838,000 against the fast-food chain.

Defendant moved for a remittitur (or a new trial), both of which were denied. Plaintiff was also awarded $92,000 in attorney’s fees and $7,000 in costs, based on the fact plaintiff had offered to settle for a much lower amount than was ultimately awarded by the jury, but defense had rejected that offer.

Upon appeal, justices granted defense motion for remittitur, reducing the jury’s award of $29,000 down to $4,000, saying the former was “clearly excessive” and also “unsupported by evidence.” A similar reduction – from $52,000 to $24,000 – was made for future medical expenses.

Although this represents a substantial reduction, it will not affect the bulk of plaintiff’s damage award.

If you have been a victim of a workplace accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Burger King Corp. v. Lastre-Torres , Sept. 7, 2016, Florida’s 3rd District Court of Appeal

More Blog Entries:

Benda v. Catholic Diocese of Salt Lake City – Filial Loss of Consortium Claim Allowed, Sept. 1, 2016, Miami Work Injury Attorney Blog

The practice has been widely derided, and there have been some calls for the federal government to intervene and make the practice illegal. So far, that hasn’t happened. And while courts generally do uphold arbitration agreements, many judges – including those in Florida – have been taking issue with certain elements of such agreements that are inherently unfair or that render them not legally enforceable. For example, some family members will sign away a resident’s legal rights when in fact they did not have the authority to do so. In other cases, judges are finding these agreements are strictly against public policy.

The recent case of Olson v. Florida Living Options, Inc., before Florida’s 2nd District Court of Appeal, yet again involved one of these arbitration agreements.

According to court records, the personal representative of the estate of decedent appealed a non-final order that granted the motion to compel arbitration with the nursing home at which decedent died. Plaintiff alleges the skilled nursing facility breached its duty of care and was negligent in its treatment of decedent, causing his death. Defendants sought to compel arbitration, which is generally deemed by defendant corporations to be a more friendly process. Records aren’t made public, arbitrators don’t have to follow the law and decisions are often skewed in favor of the company, which keeps arbitration firms on retainer.

The 2nd DCA, in ruling the nursing home negligence claims raised by the estate weren’t within the scope of the arbitration agreement, reversed and remanded the case back to the trial court.

Plaintiff had alleged the elderly decedent sustained numerous personal injuries during his stay at defendant nursing home. Defendant filed a motion to compel arbitration. It was noted that in the agreement, there was a provision indicating the agreement covered the full course of residency, even if patient was re-admitted following a discharge and that the agreement would cover all future admissions.

But the issue here was that the agreement was signed by decedent with regard to his care at the assisted living facility. Yet it was being utilized by the skilled nursing facility at which he later became a resident, which was owned by the same company as the assisted living facility. It was plaintiff’s contention that the agreement with the assisted living facility couldn’t be utilized by the skilled nursing facility to compel arbitration. These were two separate companies, even though they were owned by the same firm. The 2nd DCA agreed with plaintiff. However, even if they assumed for a moment that defendant could prevail on this point, the court took its analysis a step further in analyzing the scope of the arbitration agreement. The arbitration agreement signed by decedent specifically references the assisted living facility – not the skilled nursing facility – and it is not disputed that that the negligence reportedly occurred while decedent was a patient at the skilled nursing facility. A “contract” signed by patient upon admission to the skilled nursing facility makes not reference to arbitration. Thus, the allegations as they pertain to the skilled nursing facility don’t have anything to do with the agreement signed with the assisted living facility.

If you or a loved one have been a victim of nursing home abuse in Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Olson v. Florida Living Options, Inc., Sept. 9, 2016, Florida’s Second District Court of Appeal

More Blog Entries:

NHTSA: Non-Traffic Accidents are a Serious Problem, Sept. 14, 2016, Miami Nursing Home Abuse Lawyer Blog

The statute and rule set a hard, 30-day deadline for the other party to accept or reject the proposed settlement, and the settlement may be deemed rejected if the party does not respond to it. Assuming the proposal was made in good faith, the party who extended it may seek recovery of attorney fees if they later prevail in court (for defendants, if plaintiff receives at least 25 percent less than the proposed offer and for plaintiff, if judgment is at least 25 percent more than the amount of the offer). The whole purpose is to avoid or reduce backlog in the courts and encourage parties to save time and money by settling.

In the recent case of Ochoa v. Koppel, Florida’s Second District Court of Appeal issued a decision pertaining to the length of time one has to accept or reject a settlement after requesting more time. The court decided that the 30-day limit is a strict one, and can’t be tolled while awaiting a decision from the trial court after requesting an extension. This decision directly contrasts with the ruling issued by Florida’s 5th District Court of Appeal in Goldy v. Corbett Cranes Services, Inc. in 1997. The conflict was certified to the Florida Supreme Court.

According to court records in Ochoa, this was a car accident lawsuit stemming from a crash that occurred in 2011. Less than two years later, In April 2013, plaintiff filed a lawsuit against the alleged at-fault driver.

Then in September 2013, plaintiff served defendant with a proposal for settlement, pursuant to the aforementioned statute and rule. The proposal offered to dismiss the action with prejudice if defendant agreed to a lump sum payment of $100,000 to compensation plaintiff for her injuries. That proposal indicated that it would be deemed rejected if it was not accepted within 30 days after service. The proposal also indicated it would be withdrawn if not accepted within that time frame. Plaintiff also sent notice to the court that same day that the case was ready for trial.

One day before that 30-day time limit was up, defendant filed a motion seeking to enlarge the time in which to respond. She said she had just received through discovery results of a new MRI and plaintiff’s deposition hadn’t even been taken yet. The matter was set for a hearing on Dec. 2, 2013.

At that hearing, the court did not make a decision, but asked for more information to be received within 3 days. One day after the hearing, however, defendant responded to plaintiff with a notice of acceptance of the proposed settlement.

However at a subsequent hearing, the court denied defendant’s request to enlarge settlement. Plaintiff then filed a motion to strike the notice of acceptance of settlement as untimely. Defendant opposed the motion, citing Goldy. She argued the period of time she had to respond was tolled while awaiting the court’s decision on her request for enlargement. Trial court agreed and dismissed plaintiff’s lawsuit under the terms of the proposed settlement.

The 2nd DCA reversed. The court ruled that to offer automatic tolling when one files a motion for enlargement would be to give the party filing additional time than what is prescribed in the rule, and this is done without an exercise of judicial supervision or discretion until the motion is decided. Further, to hold that a motion to enlarge that 30-day period automatically tolls the time period would be to insert text into a judicial rule, and that is not the role of the court.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Ochoa v. Koppel, May 20, 2016, Florida’s Second District Court of Appeal

More Blog Entries:

Moreno v. City of Gering – Government Liability in Bus Accident, April 27, 2016, Miami Car Accident Lawyer Blog

F.S. 95.11(4)(b) holds that an action for medical malpractice must be initiated from either 2 years from the time of the incident giving rise to the action or within 2 years of the time the incident is discovered or should have been discovered with the exercise of due diligence. However, there is a 4 year statute of repose, which means no action can be initiated after that four-year deadline. But, there is one exception: Actions brought on behalf of a minor on or before the child’s 8th birthday.

In the recent case of Coffey-Garcia v. South Miami Hospital, recently before Florida’s Third District Court of Appeal, the question was whether in weighing this discovery deadline in an alleged birth injury case, plaintiff could be compelled to give information about when she met with various attorneys and what was discussed. Plaintiff argued such information was protected by attorney-client privilege, while defendant argued it was not and the information was pertinent to when plaintiff knew or reasonably should have known the purported cause of her daughter’s cerebral palsy. 

The facts of the case begin in July 2005, when plaintiff gave birth to her daughter.

Then in early 2007, a neurologist diagnosed the girl with cerebral palsy. Cerebral palsy occurs when the brain injury or brain malformation that occurs while the brain is developing – either before, during or after birth. The result is brain damage that affects the child’s muscle control, coordination, tone, reflex, posture and balance. It can also sometimes impact the child’s gross motor skills, fine motor skills and oral motor functioning.

Although it can occur organically, it is a red flag of perinatal brain cell death, which means that events during the birth process led to rupture of the blood vessels that start oxygen to the brain. This type of birth injury is often the result of medical malpractice.

In April 2013, prior to the girl’s 8th birthday, the parents filed a notice to extend by 90 days the statute of limitations for filing a medical malpractice lawsuit against the doctors and hospitals involved in their daughter’s birth. They filed a notice of intent to initiate the lawsuit, which was ultimately filed in November 2013.

The question was whether the statute of limitations will be a bar to this claim, and ultimately, that decision will rest on when plaintiff knew not only of the injury, but also had knowledge there was a reasonable possibility the injury was caused by medical malpractice.

Attorneys for the defense sought information to discover what attorneys plaintiff consulted with about her daughter’s condition, when she consulted with them and why she consulted with them. She did testify in deposition that her current attorney was not the first lawyer with whom she consulted, but then declined to comment further on the basis of attorney-client privilege. Defense moved to compel her to answer all questions related to when she first sought legal counsel, the names of attorneys with whom she consulted and the reasons she first sought out an attorney and any others subsequent.

The trial court granted the motion to compel and plaintiff appealed to the 3rd DCA. The appeals court noted that although a client can’t be compelled to answer questions like, “What did you say or write to the attorney?” he or she can’t refuse to disclose a relevant fact just because it was incorporated into a statement of fact communicated to his or her attorney.

Appeals court noted that the questions the defense sought – the names of attorneys and dates of consultations relevant to plaintiff’s claim regarding her daughter’s condition – are not protected information because that only requires her to disclose the occurrence of a consultation. However, plaintiff can’t be forced to answer “all questions” (as the lower court had ordered), such the specifics of what was discussed.

If your child has been a victim of a Miami birth injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Coffey-Garcia v. South Miami Hospital, June 22, 2015, Florida’s 3rd District Court of Appeal

More Blog Entries:

Westphal v. City of St. Petersburg: Florida Supreme Court Rules Limit of Workers’ Comp. Unconstitutional, June 22, 2016, Miami Birth Injury Lawyer Blog

So concludes a five-year legal battle in a closely-watched workers’ compensation claim filed when a 53-year-old city firefighter suffered a serious back injury while moving furniture as he battled a blaze. Plaintiff was totally disabled and unable to work. But state legislators overhauled the state’s workers’ compensation system back in 2003 amid pressure from business and insurance lobbyists, ultimately cutting off temporary total disability benefits after just two years.

As plaintiff’s attorney later told the Orlando Sentinel, “For anyone that had continued disability, this is an important thing. You can’t arbitrarily say people aren’t going to get benefits after a magical time limit like this.” 

This is significant for those who have suffered a work-related personal injury because as a recent in-depth investigation by ProPublica revealed, worker benefits within the entire workers’ compensation system – the “grand bargain” between workers and their employers – has been eroded across the country in the last decade. The trade-off was always that workers were to be granted access to a no-fault system of benefits for work-related injuries, while forfeiting the right to sue the employer for negligence. Those benefits have been slowly chipped away by legislators in state after state, and yet, workers still don’t have the right to sue their employer.

The Westphal decision made it clear that when workers’ compensation is the exclusive remedy to litigation, it must function as a reasonable alternative. Here, it did not. The state high court ruled that under article I, section 21 of the Florida Constitution, which prohibits denial of access to the courts, is trampled with this arbitrary cut-off date because it deprives the injured worker of disability benefits under these circumstances for an indefinite amount of time. Further, the court called Florida’s 1st District Court of Appeals’ effort to spare the statute from being deemed unconstitutional “valiant,” but ruled the judiciary does not have the authority to rewrite a statute that is plainly written – even the point is to avoid that law being found unconstitutional.

Specifically, the statute says that once a worker reaches a maximum of 104 weeks or maximum medical improvement – whichever comes sooner – the worker’s temporary total disability benefits are to cease and the injured worker’s permanent impairment shall be determined (F.S. 440.15(2)(a) ). However, the statute fails to ensure the worker is at that time legally entitled to receive permanent disability benefits. Neither does it provide that the worker will be automatically deemed to be at maximum medical improvement, based on the fact that temporary total disability benefits have stopped.

The end result, the court noted, is that the law severs disability benefits from workers at a critical juncture – when the worker can’t go back to work and is totally disabled, but the employer’s chosen physicians decide the worker might still medically improve.

The court was careful to say that in finding this provision unconstitutional, it does not mean the entire workers’ compensation system in Florida has to be scrapped. Instead, the court employed a “statutory revival” of the previous limit on temporary total disability benefits, which was 260 weeks, or five years. That time frame, it had been previously established, is constitutional.

The 5-2 ruling was the second recent victory for labor groups and plaintiff’s attorneys, as the court recently ruled in April that a law establishing limits on attorney’s fees in workers’ compensation cases was unlawful.

If you have been a victim of a Miami work injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Westphal v. City of St. Petersburg, June 9, 2016, Florida Supreme Court

More Blog Entries:

GEICO v. Macedo – Auto Insurer Must Pay Plaintiff Attorney Fees, May 20, 2016, Miami Work Injury Lawyer Blog

The complaint states that the children were born between 1996 and 2008, and alleges that their injuries were caused by the mothers’ ingestion of Depakote while they were pregnant. The defendants were engaged in the formulation, design, manufacture, licensing, testing, advertisement, marketing and sale of the drug Depakote, which was taken to manage seizures. The plaintiffs claim medical researchers established that the medication posed a greater risk for pregnant women.

As a consequence of their ingestion of the drug, the children suffered serious and permanent injuries, became physically impaired and disfigured, and experienced a considerable amount of physical and mental pain and suffering. In addition, they were beset by medical expenses, lost earnings, loss of potential future earnings, and attorney fees and court costs.

The plaintiffs are requesting damages for the following torts:
• Product liability
• Negligence
• Breach of express warranty
• Breach of implied warranty
• Fraud and misrepresentation
• Misrepresentation by omission
• Willful and wanton conduct
• Negligent infliction of emotional distress
• Intentional infliction of emotional distress

They are requesting actual damages, punitive damages, court costs and any other remedy that the court thinks is suitable.

Depakote presents a high risk of birth defects, particularly for those women who take the maximum dosage of 1,000 mg on a daily basis. Women who ingest Depakote are also more prone to develop symptoms of polycystic ovarian syndrome (PCOS), which can cause the growth of cysts on the ovaries, and prevent women from becoming pregnant. Among the birth defects caused by ingestion of Depakote are spina bifida, cleft palate and reduced intelligence.

If your child suffered a birth injury due to the negligence of a hospital or manufacturer, call the birth injury attorneys at Briskman Briskman & Greenberg.

Normally, all attorney fees for auto accident lawsuits are doled out on a contingency fee basis by the plaintiff, which means they are based on a percentage of the final damage award and are only paid if the case is won. However, what F.S. 768.79(6)(b) says is that if a plaintiff serves a settlement offer to the defense which is rejected and then the plaintiff goes on to secure a judgment that is at least 25 percent higher than that settlement offer, plaintiff is to be awarded reasonable costs, including investigative expenses and attorney’s fees incurred from the date the offer was served.

That means a portion of your legal bill could be paid by the defendant if they refuse to take you up on a reasonable settlement offer. It’s intended as a means to encourage settlement to save the time and expense of trial. 

In the recent case at issue, GEICO v. Macedo, plaintiff suffered injuries after a Florida car accident with a driver who was insured by defendant company. Before the case went to trial, plaintiff extended an offer to the defense for $50,000. At the time, GEICO was not a party to that case, which is common, as people can’t sue insurance companies right off the bat. They must first establish liability of the insured, and then pursue the insurer for payment.

However, even though GEICO wasn’t a party to the case, it was providing the insurer with a defense, pursuant to the terms of the auto insurance policy, as is also common. So when plaintiff extended her proposed settlement agreement, it was GEICO, by and through the legal counsel it was providing to defendant, who turned down that offer.

The case went to trial and the jury sided in favor of plaintiff. What’s more, jurors decided to award plaintiff four times as much as her proposed settlement agreement.

From there, plaintiff joined GEICO as a defendant to the action and sought collection of costs and fees, pursuant to F.S. 768.79(6)(b). The trial court granted her request.

GEICO appealed. The argument was that because it wasn’t a defendant in the initial action, it could not be liable for the decision of legal counsel not to agree to the settlement.

The appeals court disagreed. As it determined in the earlier case of New Hampshire Indemnity Company v. Gray, in which the court found the insurer’s notation in the policy that it would cover “other reasonable expenses incurred at our request” to include expenses associated with deciding to take a case to trial rather than settle it. Just like in the Gray case, the insurer in Macedo extended a policy that gave it the sole right to litigate and settle claims. It was also contractually required to pay for all legal costs it incurred in doing so. There was no definition of legal costs, nor was there any mention of exclusions.

Therefore, insurer will be required to pay those costs. However, the court did certify conflict with a sister court on the same issue.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

GEICO v. Macedo, May 6, 2016, Florida’s First District Court of Appeal

More Blog Entries:

Car Accident Lawsuit Names Snapchat as Defendant, May 3, 2016, Miami Car Accident Attorney Blog

There are two primary exceptions:

• When the person who was served alcohol was under the legal age of 21;
• When the person is known to the establishment as one who is habitually addicted to alcohol.

In a recent case before Florida’s 4th District Court of Appeal, drunk driving injury victims argued the law should also be applicable to an establishment that assumes responsibility to stop patrons from getting behind the wheel drunk and then failing to do so.

Plaintiffs in De La Torre v. Flannigan’s Enterprises, Inc. relied heavily on the “undertaker’s doctrine.” 

The Florida Supreme Court has used the Second Restatement of Torts, sectiosn 323-324A to define the “undertaker’s doctrine,” which involves the liability of third parties who gratuitously undertake the responsibility to render services to another person for that person’s protection. The third party can, by these actions, be held liable for physical harm that results from failure to exercise reasonable care.

There are a number of cases where this assertion has worked. In one case, Massad ex rel. Wilson v. Granzow, a party host took it upon himself to care for a guest who was drunk and had fallen and suffered a head injury. Host allegedly gave the guest a prescription painkiller, which worsened his symptoms, and then left him alone by the pool, where the guest drowned. The court applied the undertaker’s doctrine and the host was found liable.

In another case, Carroll Air Systems, Inc. v. Greenbaum, a business purchased drinks for an employee while he was entertaining clients.Employee later drove drunk and struck a third party, who was injured. The court ruled the employer wasn’t protected by Florida’s limited dram shop law because although employer didn’t furnish the drinks, it had knowledge – actual or constructive – that employee was intoxicated and in no condition to drive. Although the employer was not at the meeting, employer had the ability to control its employees.

But the 4th DCA said these cases are distinguishable from the case against Flannigan’s.

According to court records, a woman went there and drank several alcoholic beverages one evening in 2011. After a while, woman became intoxicated. Staffers at one point stopped serving alcohol to her, observing that she was drunk, and began serving her water. However, no one on staff tried to stop her when she left and got in the wheel of her car.

This was despite the fact that the restaurant had a policy in place to stop drunk patrons from driving. This involved taking the patron’s keys, calling law enforcement or ensuring the person had a sober driver. None of those actions were taken in this case, and the woman got in her car, left and was involved in a drunk driving accident, injuring the passengers.

Passengers later sued the bar, citing the undertaker’s doctrine. They argued that because the bar had this policy – and employees failed to adhere to it – the restaurant should be held liable. They argued the issue was not that the bar served the woman, but that employees failed in the duty they had assumed by way of restaurant policy.

However, neither the trial court nor the appeals court saw it that way. The state does not require establishments to stop people from driving drunk, and those that make efforts to try shouldn’t be punished for doing so, the 4th DCA reasoned.

Still, drunk driving accident victims should consult with an experienced injury lawyer in order to explore all potential avenues of recovery.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

De La Torre v. Flannigan’s Enterprises, Inc., March 9, 2016, Florida’s Fourth District Court of Appeal

More Blog Entries:

Study: U.S. Drivers Increasingly Dangerous, Distracted More Than Half the Time, March 21, 2016, Miami DUI Injury Lawyer Blog

Hyperdynamics Corp. filed suit claiming that Dana Petroleum PLC and Tullow PLC used a now-settled foreign corruption investigation under the U.S. Foreign Corrupt Practices Act to delay drilling activities long after the investigation was resolved. The lawsuit claims that the delays are putting in jeopardy the drilling of a well that a contract requires to be completed by September. According to the lawsuit, the small company could lose its concession, which is its sole asset, if the well is not completed on time.

Hyperdynamics claims that the defendants are in breach of the joint operating agreement and is acting in bad faith, because its supposed reason for failing to proceed has no foundation, as the investigation is now settled. Hyperdynamics said that it had provided its partners with new contract assurances from the government of Guinea. Previously, the partners had claimed that they were concerned that the government of Guinea could invalidate the concession.

Hyperdynamics has requested an injunction from the U.S. District Court for the Southern District of Texas, requiring Tullow to begin drilling operations again. Hyperdynamics has also filed an arbitration request seeking “further damages.”

Hyperdynamics resolved the corruption investigation with a $75,000 settlement, which was seen as a victory for the company, but the allegations have continued to cause problems.

Gregory D. Jordan is an Austin Oil and Gas lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In 2003, then-Gov. Jeb Bush, along with insurance companies, doctors and hospitals, urged the state legislature to enact limits on damages for pain and suffering, arguing that the state was in a “crisis” of high rates for medical malpractice insurance. Critics at the time pointed out that victims of medical malpractice, who suffer life-changing injuries as the result of mistakes by doctors and hospitals, deserve fair compensation for their injuries, and high insurance rates are better addressed by regulation of the insurance industry.

After the legislature enacted limits on damages, the Florida Supreme Court found the limits unconstitutional in wrongful death cases, and in the summer of 2015, the 4th District Court of Appeal ruled that such limits were also unconstitutional in personal injury cases involving medical malpractice. The Florida Supreme Court will now decide that issue.

Bondi’s office argued that the plaintiff in the case before the court, Susan Kalitan, who suffered a perforated esophagus as the result of a medical error, failed to rebut the evidence the legislature relied on in enacting damages caps, and failed to show that there was any other way to address the “crisis” of high insurance costs. However, Kalitan’s attorneys argued in their appellate brief that the legislature could lower malpractice premiums by regulating those premiums, without affecting anyone’s constitutional rights.

Yeti Coolers, an Austin company, accuses a Missouri company, Mammoth Coolers, of selling products that infringe on Yeti’s rights. Yeti alleges unfair competition, unjust enrichment, trade dress infringement and trade dress dilution. The company seeks money damages and the recall and destruction of the offending products.

The products at issue are similar to Yeti’s Roadie and Tundra coolers and high-end Rambler tumblers. The company reports that it has sold more than 1 million Tundra coolers, which sell for $300 to $1,400, and more than 400,000 Roadie coolers, which sell for $250. The Rambler tumblers sell for between $30 and $40.

Yeti claims in the lawsuit that Mammoth Coolers’ Titan and Discovery coolers and its Rover tumblers are confusingly similar to Yeti’s products. Yeti alleges that Mammoth is using Yeti’s trade dress or colorable imitations, which are likely to create the misleading and false impression that the allegedly infringing products are associated with or authorized by Yeti. Yeti claims that the company used its trade dress continuously and extensively, and it became famous and acquired secondary meaning, before Mammoth entered the market.

Mammoth advertises its products as less expensive than their competitors.

Yeti has requested a jury trial.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The collective action lawsuit was filed in U.S. District Court for the Eastern District of Texas, Beaumont Division, by Tommy Breed, individually and for all others similarly situated. Breed alleges that his former employer, Wastewater Specialties, violated the Fair Labor Standards Act by failing to pay him overtime wages.

According to the lawsuit, Wastewater Specialities employed Breed from May 2013 until Sept. 2015. The complaint alleges that Breed and others worked more than 40 hours per week, but were not paid overtime; instead they were paid straight time for what the company called “unbillable” hours.

The lawsuit seeks damages for Breed and others in the class, including compensation for overtime worked, liquidated damages, interest and attorney’s fees and costs.

Wastewater Specialties is an environmental services company that operates in the gulf coast region, with its headquarters in Sulphur, Louisiana, and offices in Texas City and Beaumont.

Certain employees who work more than 40 hours per week are entitled to one and a half times their regular rate of pay, under the federal Fair Labor Standards Act and the Texas Payday Law. Certain executive, professional and administrative employees who make more than a certain amount per week are exempt from the overtime requirements.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The Eleventh Court of Appeals issued its opinion Aug. 31, 2015 in the case of St. Paul Fire & Marine Insurance Company and St. Paul Surplus Lines Insurance Company, Appellants v. Petroplex Energy, Inc, Appellee, on appeal from the 142nd District Court, Midland County, Texas.

The case involved a gas well, the Quinn 1-6H Well in Reeves County, Texas, that was operated by Petroplex Energy and insured by the appellant insurance companies. The Quinn Well was intended to be operated as a partnership between Petroplex and Endeavor Energy Resources, LP, but the two companies disagreed over certain matters including blowout insurance, and a joint operating agreement was never signed. A partial assignment of the Quinn Well to Endeavor was executed, but the 80 percent interest was subsequently reassigned to Petroplex.

On Sept. 14, 2007, a buildup of gas caused the Quinn Well to blow out, and Petroplex lost control of the well. As a result, equipment owned by third parties was damaged, and Endeavor advanced blowout expenses to Petroplex. A well-control policy and commercial liability policy were held by Petroplex, but the insurance companies claimed that Petroplex did not own 100 percent of the working interest in the Quinn Well, that it was not an insured well, and Petroplex could not recover under the policies.

The appeals court affirmed the trial court’s judgment in favor of Petroplex on all issues presented.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Elissa Shetzer filed the lawsuit in U.S. District Court for the Eastern District of Texas against her employer, Harte-Hanks Response Management/Austin LP, which manages the call center in Texarkana, Texas. Shetzer claims that employees were not paid for time spent on tasks such as logging in to call systems and performing administrative work at the end of their shifts.

The lawsuit alleges that it took approximately 15 minutes to log into the computer system before the start of a shift, which was required in order to be able to take calls. In addition, the suit claims that employees had to spend about 10 minutes after each shift logging off and shutting down computer programs.

According to the lawsuit, if employees were on a call when their shift ended, they were paid only until the end of the phone call, even if there was additional administrative work related to the call that still needed to be completed before they could leave work. In addition, the suit alleges that workers often had to take a final customer call after their phones had automatically clocked them out.

Shetzer claims violations of the Fair Labor Standards Act and is seeking class-action status for her lawsuit. The suit seeks monetary damages, liquidated damages, interests and costs from the defendants.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The $5,000.00 “civil penalty” has been ruled unconstitutional in some jurisdictions, but not others.  Therefore, the issue is now before the 2^nd District Court of Appeal that will ultimately decide the issue.  It was thought a decision would be forthcoming soon, but the Court requested additional argument about the issues so it will probably be some time before the issue is ultimately decided.  In the meantime, you may need to preserve this issue so you may not have to pay that penalty if you plea to the charge or are found guilty at trial.

There are many defenses to Solicitation for Lewdness/Prostitution of cases such as:

• Is what the arrested person did actually a crime?
• Did the accused agree to a legal act such as a massage?
• Did the police conduct the investigation correctly?
• Did the officers preserve all the evidence?
• Did the police entrap the person into committing  acrime?

I have handled numerous cases originating from these sting operations in Polk County and argued that the $5,000.00 penalty is unconstitutional.  I have also tried these types of cases.  If you have been arrested in this sting, call a criminal attorney that has experience and knows how to defend you against these charges.

Call Now (727) 457-8660

Thomas C. Grajek
Attorney at Law
24140 State Road 54, Suite E

Lutz, FL 33559

(next to Ferman Chrysler Jeep)

In 2003, the Florida legislature set limits of $500,000 in “non-economic damages,” such as damages for pain and suffering, in personal injury cases. In 2014, the Florida Supreme Court found that such limits are unconstitutional in wrongful death lawsuits over medical malpractice. Now, the 4th District Court of Appeal has ruled against certain limits in personal injury cases as well.

The medical malpractice lawsuit in question was first filed by Susan Kalitan, a dental assistant who suffered a perforated esophagus after being put under anesthesia for a carpal tunnel surgery. When she awoke after the surgery, she reported pain in her back and chest, but she was sent home. The next day, she was rushed to the hospital with an infection that resulted from a perforated esophagus. Kalitan then had to undergo neck and chest surgery and was in a medically induced coma for three weeks.

Kalitan was awarded about $4.7 million by a jury, with $4 million of that constituting non-economic damages. The judge applied the limits set by the 2003 law and reduced the non-economic damages award by $2 million.

The appeals court reinstated the jury’s award, finding that when caps discriminate between classes of medical malpractice victims, they violate equal protection rights guaranteed under the Florida Constitution.

If you need to speak with a personal injury lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

Bradford Thompson brought a complaint in the U.S. District Court for the Southern District of Texas, Houston Division, against Total Petrochemicals and Refining USA Inc. The lawsuit, filed on May 6, claimed violation of the Family and Medical Leave Act (FMLA) in 2014 and 2015.

The lawsuit alleged that Thompson has been employed by Total Petrochemicals for more than 19 years and required extensive medical leave in 2014 due to two separate instances of surgery and hospitalization. Thompson claimed that his need for FMLA leave was clearly communicated to his employer. He first suffered a ruptured appendix and later had complications following cataract surgery.

According to his lawsuit, Thompson did not exceed his allotted FMLA leave. After returning to work in March 2015, Thompson claimed that he was put on notice for unsatisfactory work performance and was given a negative work assessment, most of which he was not allowed to see.

Thompson claims that after he argued that he was being criticized on a pretext and that his employer was retaliating against him, he was denied a raise. Thompson claims loss of wages and benefits, emotional distress and damage to future employment prospects. The lawsuit seeks declaratory relief, back and front pay, other damages and attorney’s fees and costs.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

by Thomas D. Begley, Jr., Esquire, CELA

In any recovery involving a personal injury case, the interest of Medicare must be considered.^[1]

Reasons Support the Argument that the Medicare Secondary Payer Act Applies to TPL Cases with Respect to MSAs

There are a number of reasons to believe that MSAs are appropriate in personal injury cases. They are as follows:

• An informal survey of the 10 CMS Regional Offices by members of the Special Needs Alliance confirmed that each Region has taken the position that even in third party liability (TPL) cases, Medicare’s interests must be considered, and in the absence of further guidance, the Worker’s Compensation (WC) guidelines should be followed.

• The Medicare Secondary Payer Manual now includes language referring to “Liability Set-Aside Arrangement.”

• CMS has issued a memorandum that in TPL cases an MSA is not required “where the beneficiary’s treating physician certifies in writing that treatment for the alleged injury relating to the liability insurance (including self-insurance) ‘settlement’ has been completed as of the date of ‘settlement’ and where future medical items and/or services for that injury will not be required, Medicare considers its interests, with respect to future medicals, for that particular ‘settlement’ satisfied.”[2] The converse would appear to be that if the treating physician will not sign such an opinion letter, the MSA would be required.

• The U.S. Attorney for the Western District of New York has issued a protocol indicating that, under certain circumstances, his office will review MSAs in TPL cases.[3]

• A U.S. District Court[4] has found that a set-aside for future medical expenses in a liability case is appropriate.

Cases Where an MSA is Not Required

There are several situations in which an MSA is unnecessary:

• The facts demonstrate that the claimant is only being compensated for past medicals and not for future medicals. There is no evidence of an attempt to maximize other aspects of the settlement.

• The treating physician concludes in writing that, to a reasonable degree of medical certainty, the individual no longer requires any Medicare-covered treatments related to the claim.

• The client is not receiving Medicare and has no reasonable expectation of receiving Medicare within 30 months. The Medicare Secondary Payer Act does not apply to individuals not covered by Medicare.

[1] 42 U.S.C. §1395y(b)(2).

[2] CMS Memorandum, Subject: Medicare Secondary Payer – Liability Insurance (including self-insurance) Settlements, Judgments, Awards, or Other Payments for Future Medical Information, from Acting Director Financial Services Group to Consortium Administrator of Financial Management and Fee for Services Operations (Sept. 29, 2011).

[3] Western District of New York, Medicare Secondary Payer Protocol, Assistant U.S. Attorney Robert G. Trusiak (May 6, 2011).

[4] Big R Towing, Inc. v. Benoit, 211 W.L. 43219 (W.D. La. Jan. 5, 2011).

Aetna claims that North Cypress designed an out-of-network strategy that charged unnecessarily high fees to Aetna, and that it improperly offered ownership interests in the hospital in exchange for patient referrals.

The lawsuit argues that the action by North Cypress constitutes tortious interference (intentional, damaging interference in a business relationship) with in-network agreements between Aetna and the hospital’s physician-owners. The company further argues that the hospital’s actions violate the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and the Participating Facility Agreement between the hospital and MultiPlan, Inc., an affiliate of Aetna.

According to the lawsuit, North Cypress has also violated Texas statutes regarding unapproved billing practices, unprofessional conduct and inappropriate payment for referrals.

Allegedly, North Cypress’ out-of-network strategy included charging grossly excessive fees, providing illegal kickbacks to doctors for referrals, waiving the financial responsibility of Aetna members, upcoding and improperly using non-specific billing codes, and simply overcharging. According to the suit, these practices resulted in Aetna being overcharged by up to $120 million.

The lawsuit was filed in U.S. District Court for the Southern District of Texas, Houston Division.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The jury verdict was accepted by the U.S. District Court for the Southern District of Texas, while allowing W&T to file any post-verdict motions.

Apache Corp., an independent oil and gas exploration and production company, has operations in Canada and Egypt, in addition to the United States. W&T Offshore has operations in approximately 66 offshore fields in the Gulf of Mexico. W&T also has onshore operations in the Permian Basin of West Texas, but a substantial majority of the company’s operations are offshore.

W&T filed the lawsuit against Apache, also based in Houston, in 2011, claiming that the energy company breached a processing contract and recorded inaccurate figures regarding how much processed oil was owed to W&T.

Apache has now filed a countersuit claiming $31.5 million in damages. Apache representatives stated that W&T breached the joint operating agreement by failing to pay its assigned share of 49 percent of costs associated with plugging and abandoning three Gulf of Mexico offshore wells.

An Apache spokesman said that W&T refused to comply with “clear contractual obligations,” leading Apache to file the countersuit.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Tedi Brown, a resident of Ponte Vedra Beach, Florida, suffered severe injuries and a permanent disability after she fell from the Waltzing Swinger ride at the theme park in December 2013, according to the lawsuit.

The lawsuit was filed against Dolly Parton Productions Inc. and Herschend Family Entertainment Corp. in U.S. District Court.

According to the lawsuit, Brown and her husband asked a park employee if the ride was safe in the wintry conditions, and they were told not to worry. When the ride came to a stop, Brown lifted her lap bar, not realizing that her seat was still ten feet in the air. She then lost her grip on the lap bar due to the slick conditions and fell to the pavement. The lawsuit alleges that Dollywood failed to close the ride when slick conditions made it unsafe and failed to warn patrons not to lift the lap bar until the ride had fully descended.

The lawsuit states that Brown suffered a brain injury as well as a broken jaw, torn ligaments and neck and spine injuries. The lawsuit seeks $475,000 in damages, plus costs.

If you need to speak with a brain injury attorney or lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

The plaintiffs in the lawsuit were employees of F&M Bank, based in Tulsa, Oklahoma. As part of a merger between F&M Bank and Texas-based Prosperity Bank, Prosperity offered the employees new employment agreements that included non-compete agreements.

After the April 2014 merger, some employees were dissatisfied with their new positions and filed suit in Oklahoma state court, seeking a declaration that the non-compete agreements were not enforceable. Prosperity filed an action in Texas state court, seeking a declaration that the non-compete agreements were enforceable. The cases were removed to federal court and consolidated in the Southern District of Texas.

After the employees resigned their positions with Prosperity and began working at CrossFirst Bank in Tulsa, dueling choice-of-law motions were filed by the parties. Although the case was in federal court in Texas, concerning a Texas employer, and the non-compete agreements had a Texas choice-of-law provision, the court ruled that Oklahoma law applied, as the employees lived and worked in Oklahoma.

Oklahoma law is far more restrictive of non-compete agreements than Texas law, and the court entered summary judgment for the plaintiffs, holding that the non-compete agreements were not enforceable.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

William Packard was prescribed Xarelto in January 2012 to treat a nonvalvular atrial fibrillation. In June 2012, Packard suffered a subdural hemorrhage, or hematoma. Excess blood collected between the layers of tissue around the brain, causing pressure on the brain. Packard was admitted to the hospital, where doctors attempted to alleviate the pressure by drilling a burr hole through the scalp. However, the procedure was not enough to save Packard’s life.

In her lawsuit against Johnson & Johnson and Bayer AG, the manufacturers of Xarelto, Nancy Packard alleges that the defendants did not provide proper warnings about the risks of taking the drug — particularly about the fact that excessive bleeding could be irreversible. When other anticoagulants, such as warfarin, are used, vitamin K injections can be used to stimulate blood clotting in case of excessive bleeding. However, there is no such antidote for Xarelto.

Packard also alleges that the defendants’ marketing of the drug failed to acknowledge the danger of irreversible bleeding.

The lawsuit was filed in the U.S. District Court for the Southern District of Florida, seeking compensatory and punitive damages in excess of $75,000.

If you need to speak with a wrongful death attorney or lawyer, Call Joyce & Reyes at 1.888.771.1529 or visit more of http://www.joyceandreyespa.com/.

There are some harsh penalties associated with a prostitution arrest.  These include the public shaming that comes form having the sheriff and newspaper put your name on their website as someone arrested.  For the “john”, there is a $5,000.00 “civil penalty” required by the statute.  Other penalties include forfeiting any property seized, community service hours, and paying the cost of the investigation.  The $5,000.00 civil penalty is currently on appeal to the District Court of Appeal in another jurisdiction.

There are also many defenses to these case and I just got a prostitution case dismissed last week by filing a motion to suppress arguing my client was illegally arrested.  If you have been arrested as part of this sting call an experienced criminal defense attorney that knows how to defend these crimes, conducted jury trials, was featured in Newsweek about prostitution arrests, and has argued against the $5,000.00 civil penalty.

Thomas C. Grajek – 863-688-4606

Missouri resident Brad Abeln was killed in January after another driver swerved and pushed him into the guardrail.

According to whistleblowers, the faulty guardrail contains a steel bar that should function as a shock absorber but instead acts as a sort of bayonet, piercing through the automobile body and injuring or killing those inside. A whistleblower trial against the manufacturer, Trinity Industries, is underway in a federal court in Texas.

The New York Times has found emails showing that official concerns about the fatal consequences of the guardrail design date back to 2012. Those concerns were not made public, and states did not begin banning the guardrail until this year.

In the wake of Abeln’s death, the state of Missouri and a non-profit advocacy group commissioned a study of the guardrail. The results showed that the guardrail had a fatality rate three times higher than that of a previous design. Missouri banned future purchases of the guardrail in late September.

The federal lawsuit against Trinity Industries alleges that the company secretly changed the guardrail design to save money, and then mislead state transportation departments to hasten purchases.

Several wrongful death lawsuits have been filed in relation to the guardrail, according to Bloomberg News.

The federal case is Harman v.Trinity Industries Inc. It was filed in the U.S. District Court for the Eastern District of Texas. The case number is 2:12-cv-00089.

Put the experienced Missouri criminal defense lawyers at James Law Group on your side. Learn more at http://www.jameslawgroup.net/

Robert Stern filed an affidavit with the court and then took his story to the press, telling The Associated Press (AP) that the compensation in the settlement may be going to the wrong people.

Stern told AP reporters that behavioral problems, including domestic violence, drug addiction and suicide, can all be caused by chronic traumatic encephalopathy — also known as CTE — a condition caused by repetitive head trauma.

Right now, doctors cannot physically diagnose CTE until after a patient has died. As such, it has been difficult to link football and CTE.

But a recent report on that link is causing a stir. PBS Frontline recently went in-depth on a new report from Boston University and the Department of Veterans Affairs, who collaborate within a center that studies CTE. The center studied the brains of 79 deceased NFL players and found evidence of CTE in 76 of them.

In addition, the center studied a range of other football players — high school, college and semi-professional. All told, more than 80 percent of all football players studied showed signs of CTE.

In light of the findings, which suggest a very strong link between football and CTE, Stern was troubled by the settlement deal in the NFL concussion case. He told the AP that repetitive head trauma does not lead to Alzheimer’s disease — a condition covered by the settlement. But serious mood and behavior disorders, which are linked to repetitive head trauma and CTE, are not covered. As such, many players who suffer the symptoms of significant neurological damage from football could be left out of the settlement.

Some NFL players have already opted out of the class-action case in order to file individual lawsuits against the NFL, according to ABC News.

The class action lawsuit against the NFL was filed in the U.S. District Court for the Eastern District of Pennsylvania and is case number 2:12-md-02323-AB.

At The Hale Law Firm, we have helped thousands of clients successfully prosecute their personal injury claims including auto accidents, wrongful death, dangerous products, brain injuries, burn injuries, and defective medical devices. Clients depend on their personal injury lawyers for guidance and legal advice across a broad range of personal injury accidents. To learn more, visit http://www.hale911.com/ or call 972.351.0000.

Cleveland McGuire filed the lawsuit against Mundy Companies Inc. in U.S. District Court for the Southern District of Texas, Houston Division.

McGuire says in the lawsuit that he is an African-American male who worked as a general foreman in charge of maintenance operations at Mundy’s plant. He claims that he was the only black male supervisor at the plant.

According to the lawsuit, on October 9, 2013, a white female worker became upset over a workplace incident involving a black worker and began shouting racial slurs directed toward McGuire. McGuire claims that he reported the incident to a Mundy superintendent and shift leader, but no action was taken. McGuire states that after he reported the incident, the white female worker made false claims of sexual harassment against him.

McGuire claims that he was wrongfully terminated on October 21, 2013. A white man was hired to fill his position. According to the lawsuit, after McGuire complained to the company, Mundy rehired him in a lower-paying position. However, on November 18, 2013, McGuire filed an Equal Opportunity Commission complaint based on the previous incident. He claims that his employment was then terminated for a second time in retaliation on December 16, 2013.

McGuire claims race discrimination, retaliation and age discrimination. He is seeking compensatory and punitive damages for lost earnings, lost wages and mental pain and suffering. He has requested a jury trial.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Kimberly L. Cox filed the lawsuit in federal court in Texas on August 4, citing civil rights violations, after her employment was terminated following a work injury. Patrick R. Donahoe, as Postmaster General, is also named as a defendant.

According to the lawsuit, Cox worked as a letter carrier for the Kilgore Post Office. She claims that in July and August of 2012, she reported to Postmaster McQuiston alleged instances of discrimination against white employees by a black supervisor, but McQuiston took no action.

Cox also claims that on August 21, 2012, she sustained on-the-job injuries after tripping on a curb. Cox claims that she had three days of sick leave, but was then told to report to work and was made to sit in a room for eight hours per day. 

According to the complaint, Cox was scheduled to be off work on August 30, 2012, and she attended an estate sale, where McQuiston observed her and subsequently asked the Office of the Inspector General to investigate whether Cox exceeded her medical restrictions. On August 31, 2012, Cox claims that McQuiston placed her on emergency leave. She claims that her employment was terminated in November 2012.

The lawsuit alleges gender and race discrimination and retaliation. The lawsuit was filed in U.S. District Court for the Eastern District of Texas, Marshall Division. Cox seeks damages and attorney’s fees.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed by a whistleblower alleging that guardrails produced by Trinity Industries, a Texas-based guardrail manufacturer, are malfunctioning and killing drivers. The lawsuit further charges that the guardrail defect is the result of a product change that the company hid from the government and safety inspectors.

The judge dismissed the case over what he found to be “inappropriate conduct” on both sides, according to a report from the Wall Street Journal. The judge suggested that representatives from Trinity Industries may have tampered with witnesses. Further, the judge found that the whistleblower and plaintiff, Joshua Harman, may have destroyed evidence.

Since Harman has come forward with the charge of a product defect, numerous accident victims have claimed that guardrails malfunctioned, causing injury or death. A recent article by Bloomberg News noted that at least nine lawsuits have been filed by victims claiming personal injury or wrongful death caused by the guardrail malfunction.

The danger, according to Harman, is the end-cap on some of the guard rails. Allegedly, an impact plate that is meant to absorb energy and move along with the car can instead malfunction and pierce through the car, grievously injuring those inside.

Trinity Industries denies that any secret change was made to the guardrails. The company acknowledges that a change was made, but it insists that all regulatory bodies were appropriately informed and that all necessary safety testing was performed. The company also insists that the guardrails function properly, and it has not recalled any of the hundreds of thousands of implicated guardrails that currently line highways across the United States.

The case in question is Harman v. Trinity Industries, 2:12-cv-00089, in the U.S. District Court, Eastern District TX.

At The Hale Law Firm, we have helped thousands of clients successfully prosecute their personal injury claims including auto accidents, wrongful death, dangerous products, brain injuries, burn injuries, and defective medical devices. Clients depend on their personal injury attorneys for guidance and legal advice across a broad range of personal injury accidents. To learn more, visit http://www.hale911.com/ or call 972.351.0000.

The named plaintiffs in the claim under Washington state law, however, did not opt in and filed objections. The court denied their objections, along with a motion for reconsideration, holding that the plaintiffs lacked standing because they were not opt-in members of the collectives. The court also held that even if the plaintiffs had standing, they had not shown that the settlement was substantively unreasonable or unfair. 

The court noted that potentially valuable legal rights were given up in the settlement, and that plaintiffs were entitled to accept a certain sum in exchange for the sacrifice of uncertain potential future recovery. The court, therefore, granted the settlement final approval.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed in the U.S. District Court for the Southern District of Texas (Houston Division), claiming violation of the Family and Medical Leave Act (FMLA). In addition to Shell Oil Co., Shell Exploration & Production Co. was also named as a defendant.

According to the complaint, Ryder began working for Shell in June 2008. In August 2011, she signed a contract agreeing to remain employed with the company through July 31, 2013 in exchange for a retention payment of $60,300. Ryder learned she was pregnant in the spring of 2013.

Ryder claims she informed Shell of her pregnancy and stated that morning sickness had caused her to miss four days of work in May 2013. Ryder claims she was asked to submit leave paperwork under the FMLA and did so on June 27, 2013, but she inadvertently omitted the time period for which leave was requested. According to the lawsuit, her employment was terminated on July 8, 2013, and Shell declined to pay the retention bonus, asserting that Ryder did not remain employed until July 31.

Ryder is seeking the amount due under the retention agreement, back pay and front pay.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The U.S. District Court for the Southern District of Illinois ordered the company to “exercise all avenues available” to produce approximately 4,000 documents related to the case “as soon as possible.” Plaintiffs had previously raised the issue of insufficient production of documents with the court.

The lawsuits were filed by mothers who claim that taking Depakote during pregnancy caused birth injuries in their children. The lawsuits claim that the children were born with conditions including heart defects, neural tube defects, spina bifida and other congenital malformations and injuries.

The plaintiffs include a woman who was prescribed the anti-seizure medication during her pregnancy and whose daughter was diagnosed with severe scoliosis that threatened her lungs and heart. In another case, a woman took Depakote before she knew she was pregnant, and her child was born with an extra digit. A third case involves a woman who took Depakote during her pregnancy, which she alleges was the cause of her son’s undescended testicle, which required surgery.

Depakote, also known as valproic acid, is used as a mood-stabilizing and anti-convulsant medication. It is often used to treat biploar disorder, epilepsy and migraine headaches. The drug is manufactured by Abbott Laboratories, a global pharmaceutical firm headquartered in North Chicago.

Bob Briskman is a birth injury lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

The lawsuits were filed by Crossroads Systems Inc. against Cisco, NetApp Inc. and Quantum Corp. in U.S. District Court for the Western District of Texas, alleging infringement of U.S. Patents 6,425,035 and 7,934,041, part of Crossroads’ 972 Patent Family.

Crossroads has licensed the patent family to more than 40 different companies since 2001, receiving more than $60 million in revenue from licenses and settlements.

The lawsuits allege that the defendant companies have incorporated technology patented by Crossroads into their data-storage systems, including storage arrays and series switches.

Crossroads said that its technology is fundamental to efficient and secure access to network data-storage systems. The company said that it always seeks to avoid litigation, but that it has a responsibility to its shareholders to pursue legal action when companies engage in unlicensed use of its patented technology.

The lawsuit is seeking injunctive relief and monetary damages. Crossroads is based in Austin and employs about 60 people. The company is led by CEO Richard K. Coleman Jr.

Crossroads also filed patent-infringement lawsuits of a similar nature against Dell Inc. and other companies in November 2013.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuits were filed by Crossroads Systems Inc. against Cisco, NetApp Inc. and Quantum Corp. in U.S. District Court for the Western District of Texas, alleging infringement of U.S. Patents 6,425,035 and 7,934,041, which are part of Crossroads’ 972 Patent Family.

Crossroads has licensed the patent family to over 40 different companies since 2001, receiving more than $60 million in revenue from licenses and settlements.

The lawsuits allege that the defendant companies have incorporated technology patented by Crossroads into their data storage systems, including storage arrays and series switches, illegally.

Crossroads said that its technology is fundamental to efficient and secure access to network data storage systems. The company stated that it always seeks to avoid litigation, but that it has a responsibility to its shareholders to pursue legal action when companies engage in unlicensed use of its patented technology.

The lawsuit is seeking injunctive relief and monetary damages. Crossroads is based in Austin and employs about 60 people. The company is led by CEO Richard K. Coleman Jr.

Crossroads also filed patent infringement lawsuits of a similar nature against Dell Inc. and other companies in November 2013.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Jarrod Horton filed the lawsuit in Chicago’s U.S. District Court, claiming that police did not have any reason to arrest or shoot his brother, Marlon Horton, after he left the building as a security guard had requested.

According to authorities, the off-duty police officer, who was working as a security guard, came to the building to assist a female security guard in removing Marlon Horton from the lobby, where he was sleeping.

Authorities say that Horton left, but that the guards confronted him again when they saw him urinating on a truck outside. During the confrontation, Horton allegedly knocked the officer over and pulled the guard’s hair, and when it appeared that he could reach the guard’s gun, the off-duty officer shot him in the chest.

The lawsuit claims that police had no reason to arrest Horton and that excessive force was used against him. The suit claims false arrest, wrongful death, emotional distress and civil rights violations.

Bob Briskman is a wrongful death lawyer in Chicago, IL with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

These lawsuits are part of multidistrict litigation in U.S. District Court, Southern District of Illinois. On November 4, the court established a protocol for selecting bellwether cases, directing both sides to select up to three lawsuits as possible candidates. In January 2014, the court will select four of those cases for the first bellwether trials, which are scheduled to commence in August 2014.

According to court records, at least 1,767 lawsuits are pending in the litigation. The complaints allege that Boehringer Ingelheim failed to adequately warn doctors and patients about internal bleeding as a side effect of Pradaxa and about the lack of an available antidote.

The Food and Drug Administration recorded more than 582 deaths and 3,292 reports of other adverse events involving Pradaxa in 2012, according to the Institute for Safe Medicine Practices. The figure exceeds the adverse reports of any other drug tracked in 2012.

According to news reports, regulators in several countries have issued warnings regarding the side effects of the drug, especially concerning internal bleeding.

Pradaxa has been sold as an alternative to warfarin, an established blood-thinning medication. Blood-thinning medications are prescribed to prevent strokes caused by blood clots. Some research has found Pradaxa to be more effective than warfarin at preventing such strokes. However, internal hemorrhaging caused by warfarin can be treated with vitamin K; there is no such effective treatment for stopping internal bleeding caused by Pradaxa.

U.S. District Judge David Herndon recently ruled that Boehringer Ingelheim must pay a fine of almost $1,000,000 for withholding or failing to preserve “countless” files sought by the plaintiffs. Judge Herndon said that the company acted in bad faith and that its efforts to safeguard the documents were grossly inadequate.

The documents in question concerned the drug maker’s development and marketing of Pradaxa. Judge Herndon said that the failure to preserve them was “egregious.”

Boehringer Ingelheim said that there were unintentional and unexpected discovery problems in the litigation, and that the plaintiffs were not prevented from obtaining access to the central documents in the case.

A key allegation in the lawsuits is that Boehringer executives were aware of the risk of death from internal bleeding when they brought the drug to market in 2010. Pradaxa has generated sales of more than $1,000,000,000 for the German, family-owned firm.

Bob Briskman is a injury lawyer and attorney in Chicago with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

Orca claims that it agreed to pay $3.2 million for the lease to over 900 acres. J.P. Morgan represented the seller, the Red Crest Trust, and also served as trustee and administrator of the trust. Orca is claiming lost profits of up to $400 million.

J.P. Morgan filed a motion for summary judgment, in which it acknowledged that it had leased the property both to Orca and to another entity within a time period of five months. However, the bank claimed that Orca failed in its responsibility to thoroughly vet the title to the property. According to J.P. Morgan, if Orca had attempted to verify the validity of the title and the ability of the land to be leased, it would have discovered the prior lease.

J.P. Morgan also said that Orca’s damages claims were inflated. The bank said that the company’s claims were based on “pie-in-the-sky assumptions” and that Orca’s ability as an oil operator was unproven.

The case, unusual because of the size of the damages claim and the fact that J.P. Morgan admitted its error, is expected to go to trial in December.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

A recent decision entered by the United States District Court, M.D. Georgia, Valdosta Division gives a thorough explanation of how a default judgment works in the context of a negligence lawusit following an injury car accident.

In the case, Mata v. Gallon, Dist. Court, M.D. Ga. (2013), the plaintiff filed a lawsuit following a car accident. According to her testimony, the defendant hit the car in which the plaintiff was traveling, as a result of speeding and losing control of his vehicle. As a result, the plaintiff was ejected from the vehicle she was in. Plaintiff was hospitalized for approximately three weeks for the severe injuries she suffered as a result of the collision. These included injuries to her neck and back, skull fractures, spinal column injuries, jaw injuries, and loss of an eye. Due to her jaw and skull injuries, plaintiff’s jaw had to be wired shut for some six weeks, and metal plates were placed in her face and head.

Throughout the opinion, the court discusses the lengths at which the plaintiff went to in order to serve notice of the lawsuit, which was filed in March 2012, and when no response was had, motion for default judgment against the defendant, in June of 2013.

The court heard testimony and evidence from the plaintiff at a hearing in October of 2013 concerning the matter of default judgment and damages. While both the plaintiff and her attorney were present, neither the defendant nor any representative for him appeared at the hearing.

Because this lawsuit was filed in federal court, it follows the Federal Rules of Civil Procedure. The court recants the relevant Rule 55, which states that, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). In order to grant the motion, the court thoroughly explains, it must ensure that the all of the allegations are well set forth, and that there is a sufficient, substantive basis for granting the relief sought.

Here, the court looks to the relevant underlying state law, which is Georgia law in this case. Under Georgia law, a party asserting a claim for personal injury has the burden of pleading and proving that defendant owed a duty of care to plaintiff, this duty was breached, and the breach was proximate cause of damages. On the basis of her pleadings, the court held that the plaintiff sufficiently established all of these elements.

Additionally, when it comes to damages, the court must ensure that there is a legitimate basis for entering any award. The plaintiff’s evidence, which included medical bills, pictures of her injuries, and evidence of her continued medical complications and lost wages provided a sufficient basis for her claim of $750,000.00. This claim included amounts for medical expenses, pain and suffering, and loss of earnings. No evidence was presented to indicate that Plaintiff’s requests for damages were unreasonable or without basis.

Therefore, the court entered a default judgment for the plaintiff, for the full amount of damages requested. The end of the order stated that the decision could be appealed within fourteen days.

Securing a default judgment, as explicitly set forth by the District Court in this case, requires that all of your filings and legal pleadings set forth all of the necessary information required to be entitled to a judgment. Any omission could potentially affect your claim. The safest way to ensure watertight pleadings is to hire an experienced Georgia car accident attorney.

If you have been injured in car accident due to another individual’s negligent driving, the first thing you should do after seeking medical treatment and contacting law enforcement, is to contact an experienced Atlanta car accident attorney as soon as possible. As one of the most sought-after personal injury attorneys in the State, Mr. Ozcomert combines over 20 years of litigation experience and caring dedication to provide you with the best possible legal representation. Call us today  at (404)-370-1000 in order to schedule your free initial consultation, or you can reach us through our website.

More Blog Posts:

Georgia Court of Appeals Rules Expert Testimony not Required for Causation of Back Injuries in Car Accident Cases, Atlanta Personal Injury Lawyer Blog, published November 25, 2013

Atlanta District Court Affirms Need for Proof of Causation in Car Accidents Raising Medical Questions, Atlanta Personal Injury Lawyer Blog, published November 18, 2013

The 17^th District Court in Redford, Michigan, has established a special veterans court that addresses the problems of military veterans who have encountered legal issues stemming from their military experiences. It allows veterans who were convicted of or plead guilty to certain charges the opportunity to be placed into a special program that, while still holding them accountable for the charges, allows the veterans to receive a coordinated response to the unique problems they are facing. It provides the veterans with a positive interaction between court personnel, prosecutors, probation staff, the VA, and local veterans groups.

One of the big features of this court is that it has established a “Military Veterans Mentoring Program” to assist the veterans appearing before the court. The program pairs troubled veterans with veterans who successfully made the transition from military to civilian life.  It allows a positive interaction and provides the troubled veterans with the opportunity to receive advice and guidance from one of their veteran peers who understands the rigors of returning to civilian life.

Right now, the court is in need of veteran mentors. If you or someone you know is a veteran is willing to commit to a few hours each month to assist a fellow veteran in need, please call the Veterans Coordinator for the 17^th District Court, Jim Badeen, at (313) 387-2792 or visit the mentoring program’s website at www.17thvetmentorsredford.co. You will be trained prior to being paired with a veteran involved in the program.

Legal Help for Veterans, PLLC fights for veterans rights. We fight to make sure you get the benefits you deserve from the Department of Veterans Affairs. To learn more or contact an attorney about your PTSD, TBI, Mental Health, Sexual Assault, Hearing Loss and Tinnitus, TDIU, Medical Malpractice, or Aid and Attendance claim, visit http://www.legalhelpforveterans.com/ or call 800.693.4800

The lawsuit, filed June 10, alleges that a mother’s use of Effexor while pregnant led to her daughter being born with persistent pulmonary hypertension of the newborn, or PPHN. The child was born in 2007. PPHN occurs when a newborn child’s circulatory system does not adapt properly to being outside the womb, depriving the blood of oxygen. The condition causes pressure in the lungs and deprives vital organs of oxygen, potentially threatening the life of the child.

Newborns with PPHN typically must be placed on a respirator in the neonatal intensive care unit, and may need surgery in the first few weeks of life. Even after successful treatment, a child can experience permanent hearing loss.

The lawsuit was filed against Pfizer, the manufacturer of the drug, in U.S. District Court for the Eastern District of Pennsylvania, where a federal multidistrict litigation (MDL) proceeding may be established by the U.S. Panel on Multidistrict Litigation. The panel is considering a motion to coordinate all Effexor filings, to avoid duplicate discovery processes and conflicting rulings. More than a dozen lawsuits regarding Effexor have been filed across the country. The MDL for lawsuits involving the antidepressant Zoloft, also manufactured by Pfizer, is taking place in the same court.

Paul Greenberg is a Chicago birth injury attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

Macquarie claims to have been injured by intentional misrepresentation and fraudulent inducement on the part of ATP management. The lawsuit alleges that ATP executives conspired with the company’s law firms to misrepresent the royalty interests, producing false and misleading legal opinions regarding the nature of the sale. According to the complaint, when ATP later filed for bankruptcy, the management team caused ATP to take the position that the sale was a disguised loan. ATP is now bankrupt and was auctioned off to lenders in May.

Macquarie has demanded a jury trial and is seeking $32 million in damages in the suit.

Houston-based ATP filed for bankruptcy in 2010, blaming the Deepwater Horizon oil spill and the drilling moratorium in the Gulf of Mexico that followed. ATP executives are facing another suit by shareholders who claim that the company misrepresented the effects that the moratorium had had on revenue prior to a sale of Senior Second Lien Exchange Notes in December 2010.

Gregory D. Jordan is an Oil and Gas lawyer in Austin. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

A number of decisions by the New York State Court of Appeals and the United States Court of Appeals for the Second Circuit had established a per se rule that employers who terminate an employee without cause would not be able to enforce any provisions of a covenant not to compete.

A recent decision by the Second Circuit, in the case of Hyde v. KLS Prof’l Advisors Grp., has thrown that rule into question. In Hyde, the plaintiff sought an injunction against his former employer to prevent the company from enforcing an agreement that prohibited him from contacting clients for three years after his termination. In granting a preliminary injunction, the U.S. District Court for the Southern District of New York relied on the per se rule that such agreements are unenforceable when an employee is terminated without cause.

However, the Second Circuit vacated the decision, stating that the plaintiff had failed to show irreparable harm – a requirement of a preliminary injunction – because if Hyde were prevented from competing with his former employer and then prevailed at trial, he would be adequately compensated by money damages. In remanding the case to the Southern District, the Second Circuit also expressed “reservations” about the per se rule that such agreements are necessarily unenforceable in such a context, and suggested that the court should instead apply a reasonableness test to analyze a covenant not to compete, even when an employee is terminated without cause.

The lawsuits allege that the plaintiffs suffered birth injuries as a result of their mothers’ use of the drug, including spina bifida, neural tube defects, heart defects and other congenital malformations. The defendant is the manufacturer of the drug, Abbott Laboratories, which is based in Illinois.

The lawsuit was filed in U.S. District Court for the Southern District of Illinois, where there are already more than a dozen other lawsuits pending against Abbot Laboratories. The plaintiffs are claiming diversity of citizenship and an amount in controversy of more than $75,000.

Depakote, otherwise known as valproic acid, is marketed under the brand names of Depakote ER, Depacon and Depakene. It is commonly prescribed as an anti-epileptic medication. The lawsuit claims that Abbott failed to properly design and test the medication and did not provide adequate warnings of the dangers associated with its use by pregnant women. The plaintiffs claim that the ingestion of the drug by pregnant women during the first trimester is known to cause severe birth defects.

According to the lawsuit, the plaintiffs have suffered physical and mental pain and suffering, permanent injuries, loss of enjoyment of life and loss of future earning capacity, as well as having incurred significant medical costs.

Bob Briskman is a birth injury lawyer in Chicago and attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

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Beginning in August 2011, Chesapeake began deducting “post-production costs” from the prices for natural gas used to determine payments to royalty owners. These costs include expenses such as compressing and treating natural gas to prepare it for sale. According to Chesapeake, the company previously had the legal right to charge for those costs but had chosen not to do so. At the time, the company stated that the costs would not be deducted if a royalty owner’s lease prohibited such charges. The Warrens claim that although their lease did prohibit charging for post-production costs, they were charged anyway.

Post production costs can be about 80 cents to $1 per 1,000 cubic feet (mcf) depending on what must be done to the gas, which is significant when natural gas prices drop to around $2 per mcf, as they did in 2012. According to the Warrens, by March 2012 they were being paid as low as 42.4 cents per mcf for the natural gas Chesapeake extracted from their eight wells, and the difference in payments ran to six figures.

Several other lawsuits have been filed by Texas landowners against Chesapeake over the reduced royalty payments. The Warrens’ suit seeks class action status, a rarity for this type of lawsuit.

Chesapeake has scrambled to adjust to falling gas prices, which reached $1.90 per mcf by April 2012, a 10-year low.

Gregory D. Jordan is a business lawyer and business litigation attorney in Austin, TX. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

In this case, the suspect was walking home when the police asked for her license which she complied instead of walking away.  This made the initial encounter with police a “consensual encounter.”  She could have walked away and should have as the police officer had no reasonable suspicion or probable cause to detain the citizen.  The citizen told the police she was walking home and trying to avoid the crazy traffic which was a reasonable explanation for her behavior.  The cop took her license and ran a warrants check which came back clean.  However, the police officer DID NOT give the defendant her license back, but instead asked for consent to search her.  The appellate court ruled that under the circumstances of this case, by not returning the license to the citizen, that the stop became a seizure.  The officer also did not tell her she was free to leave.  This unlawful seizure resulted invalidated the defendant’s consent to the search.  Therefore, the 2nd DCA ruled that the consent was not freely and voluntarily given and the evidence should be suppressed.

What does that mean when the court grants a motion to suppress evidence?  That means that the sheriff, police, or law enforcement violated the defendant’s constitutional rights.  The police had no right to search.  So, any evidence seized or collected is thrown out of court.  In his case, that means the controlled substance seized from the defendant can not be used in court against her.  The prosecutor must prove that the accused possessed an illegal drug, but with no drug to present to a jury, the criminal charges must be dismissed.

If you have been arrested because the police stopped and searched you, you may have a defense to the charge.  The police may have violated your rights.  You may have a Motion to Suppress that could get your criminal charges dismissed!

Call Thomas C. Grajek, an experienced Polk County criminal defense lawyer who keeps up to date on the latest case law that can help you when facing a serious felony or misdemeanor criminal charge.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

Office – Lakeland, FL

Thomas C. Grajek  863-688-4606

American reached a settlement agreement in March with Travelport, an airfare data provider that also owns 48 percent of Orbitz. The two companies agreed to a new global distribution system. Last year, American reached a settlement with Sabre Holdings Corp., an online flight reservation provider. A jury trial had already begun in Texas state court when the Sabre settlement was reached. American had accused the companies of antitrust violations.

The resolution of the litigation against Orbitz is another step for AMR Corp. to emerge from bankruptcy protection. The bankruptcy court must still approve the settlement agreement. AMR Corp. recently announced plans for a merger with US Airways to form the world’s largest airline.

The dispute with Orbitz arose over the agency’s method of displaying information about the airline’s flights and fares. American wanted to introduce its own method of displaying information, which allows consumers to take into account information other than air fares. The lawsuit claimed that Orbitz displayed fares for American Airlines that were higher than they actually were. In 2010, American removed its fares from Orbitz, but the fares reappeared in June of 2011.

Gregory D. Jordan is an Austin business attorney and business litigation lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

Charles Hobson, of Harris County, Texas, worked for KRIV from 1990 to 2011 as a live truck operator, staff photographer and editor. He claims that KRIV and co-defendants Fox Television Stations, Inc., Fox Entertainment Group and News Corp. fired him because of his age. The lawsuit alleges that Fox had been engaged in layoffs that disproportionately affected older employees of the station. According to the complaint, employees of the station that were hired before 2004 are participants in pension and benefit plans that are more extensive than those offered to newer employees.

Hobson claims in the lawsuit that in 2009, he began receiving vague, negative comments about his work performance. According to Hobson, in the 19 years previous, there had been no negative comments about his work performance. The lawsuit claims that the station’s news director added negative remarks to the 2009 performance evaluation written by his immediate supervisor, and that his 2010 evaluation was simply written by the news director and given to his immediate supervisor to present to Hobson, again with negative comments.

The lawsuit claims that the station’s news director made comments to Hobson that he “could have been better” or “could have done something different,” and other vague remarks. Hobson also claims he was disciplined for broadcast mistakes that occurred due to inclement weather and computer malfunctions.

According to the complaint, there are approximately 18 employees of the station who have similar job titles to Hobson’s, and Hobson was the oldest or one of the two oldest. The lawsuit claims that younger employees performed similarly to Hobson but did not receive the same negative remarks. According to the complaint, Hobson’s employment was terminated in January of 2011 and a younger employee was hired as his replacement.

The lawsuit, filed in the U.S. District Court for the Southern District of Texas in Houston, claims that the defendants violated the Age Discrimination in Employment Act (ADEA). The ADEA protects workers over age 40 from age-based discrimination. The plaintiff is also suing under the Employee Retirement Income Security Act (ERISA). Hobson previously filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division of the Texas Workforce Commission, which are procedural steps before litigation.

The lawsuit seeks a jury trial and damages for loss of past and future wages, as well as emotional pain and suffering, inconvenience and loss of enjoyment of life.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

The lawsuit was filed in U.S. District Court against Ralcorp Holdings and its subsidiary Medallion Foods. Ralcorp makes private-label products that carry the name of the store where they are sold. Ralcorp’s Cupz brand chips are sold in Kroger stores and its Bowlz brand is carried by Wal-Mart. Both brands of chips are bowl-shaped for easier dipping, similar to Tostitos Scoops.

Frito-Lay, owned by PepsiCo, argued that the Ralcorp chips were too similar to its own chips in design and manufacture, and infringed on the company’s intellectual property. The plaintiff sought $4.5 million in damages and a court order prohibiting the defendants from manufacturing their chips. According to Frito-Lay, the Scoops brand was introduced in 2001 and generates tens of millions of dollars in annual sales.

After a two-week trial, the jury of seven women and three men deliberated for about five hours before finding for the defendants. The jury found no infringement of patent or trade dress and awarded no damages to Frito-Lay. A PepsiCo spokesperson said the company was considering its post-trial options.

Frito-Lay argued that the defendants obtained trade secrets from a vendor and former employees, but the company did not call any witnesses who saw employees take trade secrets. The jury found that the defendants’ chips were sufficiently dissimilar to the plaintiffs’ product such that consumers would not be confused.

Frito-Lay, based in Plano, Texas, has been a wholly-owned subsidiary of PepsiCo since 1965. Ralcorp, based in St. Louis, was purchased recently by ConAgra Foods for $5 billion.

Disabled individuals who cannot work are entitled to Social Security disability benefits, but the process of applying can be lengthy and difficult. The majority of applicants are denied benefits at the outset, and they may be uncertain of how to proceed.

When we discuss Social Security disability benefits, we are talking about two different programs. Social Security Disability Insurance (SSDI) is available to people who have paid into the Social Security system through taxes during the 10 years before they became disabled. Supplemental Security Income (SSI) is available for people who have not paid enough into the system to be eligible for SSDI. To be eligible for either type of benefits, one must be “unable to engage in any substantial gainful activity” – i.e. “work” – because of a “medically determinable” disability lasting one year or more or expected to result in death. The questions of whether or not an individual is disabled and whether or not he or she can work are the key factors in determining eligibility for benefits.

The first stage in the process is the initial interview. A disabled individual may contact the Social Security Administration (SSA) to set up an appointment. One must have been disabled for five months before applying for SSDI benefits; there is no waiting period for SSI benefits. An applicant should bring two forms of identification to the interview, and any medical records that provide evidence for the disability. If there are records the person has not obtained, he or she may sign a medical records release form permitting the SSA to obtain them. If an individual is not able to go to a Social Security office, he or she may conduct the interview by telephone or appoint another person such as a family member to represent the disabled person at the interview. The process of deciding on the application takes from three to six months.

The majority of claims are denied at the initial application stage, but this should not deter disabled individuals from continuing with the process. Often a denial is the result of insufficient records or information that has not been presented persuasively. The second stage of the process is a request for reconsideration, which also involves an interview and the submission of any additional evidence. If the request is denied, then the third stage is to file for a hearing before an administrative law judge. An attorney can assist an applicant at any stage of the process; at the hearing stage and beyond, such assistance may be invaluable.

At an administrative hearing, the disabled person may present the testimony of witnesses and any other additional evidence. The government may also hear the testimony of a vocational expert and/or a medical expert who will offer their expert opinions regarding whether the applicant is disabled and whether he or she is unable to work. If the applicant is unsuccessful at this stage, he or she may file a claim with the Appeals Counsel Review Board. If the appeal is denied, then the last option is a civil lawsuit in District Court.

At any stage at which the benefits are granted, they will be retroactive to the date of the original application. If it is determined that the disabled individual is not able to handle the cash benefit appropriately, then a representative payee will be appointed to handle the money for the disabled person’s benefit.

For more information about disability law, visit www.specialneedsnewyork.com.