Killeen & Stern, PC

01/19/2018

Appellate Lawyer of the Week: Houston Attorney Uses Criminal Law to Reverse Med Mal Defense Win
Texas tort reform laws have made it extremely tough for medical malpractice plaintiffs to prevail in Texas civil courtrooms.
By John Council | January 18, 2018 at 06:27 PM

Texas tort reform laws have made it extremely tough for medical malpractice plaintiffs to prevail in Texas civil courtrooms.

So Houston attorney Robert Killeen used a tactic normally used in criminal law litigation to convince an appellate court to reverse a take-nothing judgment against a heart surgeon and remand his plaintiff client’s med mal case for a new trial.

Killeen represents Carolyn Jackson, who sued heart surgeon Daniel Garber Stroud for medical malpractice after her husband died from complications related to heart bypass surgery. Jackson is African-American and Stroud is Caucasian.

During jury selection, one of four black panelists was struck for cause. And at the conclusion of jury selection, Stroud used his peremptory strikes to remove the three remaining black panelists.

Jackson then made a Batson challenge—named after the 1986 U.S. Supreme Court decision in Batson v. Kentucky, which stands for the proposition that a prosecutor’s use of peremptory challenge in a criminal case may not be used to exclude jurors based solely on their race. But the trial court overruled Jackson’s Batson challenge and no black panelist was seated on the jury. The jury later returned a defense verdict and the trial court signed a take-nothing judgment against Jackson.

Jackson appealed the judgment to Houston’s First Court of Appeals arguing that the trial court abused its discretion in overruling her Batson challenge because Stroud’s purported reasons for striking the black panelists were pretexts for unlawful racial discrimination.

Yet Stroud contented on appeal that the trial court properly overruled Jackson’s Batson challenge because she failed to prove purposeful discrimination.

In their decision, the First Court focused on Stroud’s decision to strike a black panelist, P. Howe, because she worked as a certified nursing assistant. Stroud argued in his appellate brief that Howe was struck because a CNA position requires little education and her employment in the health care field would lead her to presume expertise in medical malpractice.

But the appellate court concluded that Stroud’s explanations for striking Howe were unpersuasive because he didn’t bother to question Howe about his concerns during jury examination.

“The record shows that Stroud failed to ask panelist Howe any questions related to his belatedly-expressed concerns about her education, her willingness to decide the case based on the evidence rather than her experiences, or her ability to follow an instruction from the trial court to refrain from informing jurors of special medical knowledge she has acquired during her career,” wrote Justice Harvey Brown.

The decision reverses the defense win and remands the cases for a new trial, noting, “We have no reason to doubt that the attorney responsible for the challenged peremptory strikes is ‘pure of heart,’ and we assume that he is.”

Killeen, who represented Jackson both at trial and on appeal, said he was prepared for filing and defending his Batson challenge even though they are rarely lodged in civil cases in Texas. “It’s incredibly unusual,” Killeen, a partner in Killeen & Stern, said of the Batson challenge. “Our firm does a lot of criminal work and from my perspective, not a lot of civil lawyers know how to handle a Batson challenge in a civil trial.’’

Having all of the African-American jurors struck from the panel was extremely problematic for his African-American client—something the First Court has now corrected, Killeen said. “It’s a tremendous decision. It’s extremely well laid out by the First Court,’’ Killeen said of the ruling.

Donald S. Stephens, a Pearland attorney who represents Stroud, said his client has not decided whether to appeal the First Court’s decision.

“We’re disappointed by the decision but we look forward to the resolution of the case,’’ Stephens said.

01/11/2018

Our Austin office has relocated to:

Independent Bank Building
Suite 158
101 Westlake Dr.
Austin, Texas 78746

K&S

09/13/2017

U.S.SUPREME COURT BLOCKS REDRAWING TEXAS VOTING DISTRICTS

The U.S. Supreme Court ("SCOTUS") blocked a ruling by a lower federal court on Tuesday mandating that Texas redraw its congressional district maps before the 2018 elections.

The SCOTUS decision stems from separate rulings from a three-judge panel in San Antonio federal court last month, which opined that Texas’s maps were in violation of the Constitution and the Voting Rights Act. (" this is 'customary' in these cases).

This is a victory for conservatives in the long legal fight over Texas’s voting maps, which has been ongoing since 2011. “The Supreme Court confirmed what the rest of us already knew: Texas should be able to use maps in 2018 that the district court itself adopted in 2012 and Texas used in the last three election cycles,” Attorney General Ken Paxton said in a statement.

“In 2012 the Supreme Court ordered the district court to adopt lawful maps, and we believe it did so. We are eager to proceed with this case in the high court.”

05/23/2017

Every dawg has his day!

05/23/2017

KILLEEN & STERN DEFEAT THE MOSTYN LAW FIRM
JUDGMENT
The Fourteenth Court of Appeals
NATIONAL SECURITY FIRE & CASUALTY COMPANY, ACTION CLAIM SERVICE, INC. AND AARON TIMMINS, Appellants
NO. 14-15-00714-CV V.
OZIER HURST, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, Ozier Hurst, signed, May 26, 2015, was heard on the transcript of the record.

We have inspected the record and find the trial court in denying appellants’ motion for directed verdict.

We therefore order the judgment of the court below REVERSED and RENDER judgment that appellee,

Ozier Hurst, taking nothing on his claims.

We further order that all costs incurred by reason of this appeal be paid by appellee, Ozier Hurst.

We further order this decision certified below for observance

04/24/2017

US SUPREME COURT REJECTS GM

The nation’s top court on Monday rejected a request from General Motors Co. GM 0.58% to limit the fallout from its ignition-switch defect.

The U.S. Supreme Court denied the Detroit auto maker’s request to review a lower-court ruling that gave some victims’ families the power to sue over defective ignition switches, exposing the company to billions of dollars in potential new claims.

GM had tried to overturn a July ruling from the Second U.S. Circuit Court of Appeals that said the auto maker should have disclosed the ignition-switch defect when its operations were sold during its 2009 bankruptcy. Under bankruptcy law, a company’s operations can be sold “free and clear” of past liabilities, blocking future lawsuits over claims that arose before the sale.

The decision could expose GM to hundreds of additional wrongful death and personal injury cases.

The potential legal claims could total more than $10 billion, according to a bankruptcy judge’s estimate, though the ultimate financial fallout could be far less if plaintiffs don’t prevail in court or reach settlements. GM has already reached ignition-switch settlements with consumers, shareholders and federal prosecutors totaling more than $2 billion.

GM recalled 2.6 million older cars in 2014 with the defective switches, which can slip from the run position, cause vehicles to stall and disable safety features including air bags. The company acknowledged that employees knew of problems for more than a decade. The defect has been linked to 124 deaths and led GM to settle a federal criminal case.
In its request for Supreme Court review, GM lawyers said the lower-court ruling “threatens to undermine one of the largest bankruptcies in history.”

The appeals court found that GM should have known of the ignition-switch defect—or strongly suspected it—at the time of its bankruptcy case and therefore should have disclosed it. Failing to do so violated consumer rights that are built into the chapter 11 bankruptcy process, the court said. GM “essentially asks that we reward [bankrupt companies] who conceal claims,” the court said. Therefore, the lower court’s ruling stands.

12/30/2016

Halliburton $100M Settlement Would End 14 Years of Litigation
Celia Ampel, Daily Business Review
December 29, 2016

Halliburton Co. agreed to a $100 million settlement in a securities fraud class action brought by Boies Schiller & Flexner.

The settlement, which still needs the approval of a Dallas federal judge, ends a 14-year-old case with some claims stemming from former Vice President Dick Cheney's time as CEO of the company. The case twice sent Boies Schiller chairman David Boies to argue before the U.S. Supreme Court.

Much of the work on behalf of the plaintiffs class was handled by Boies Schiller's Fort Lauderdale office, where partner Carl Goldfarb took over the case from Boies' daughter Caryl, who died in 2010.
Halliburton will pay $54 million of the settlement, and its insurance company will pay the rest, according to a company statement.

The lead plaintiff, the Erica P. John Fund, alleged in a 2002 lawsuit that Halliburton falsified financial results related to long-term construction projects. The investors also claimed the Houston-based oil field services giant misled the public about its liability for asbestos claims.
The case was awaiting an appellate decision on class certification from the U.S. Court of Appeals for the Fifth Circuit when it settled. The settlement does not include any admission of liability.

According to court documents, the case was mediated by former U.S. District Judge Layn Phillips, founder of Phillips ADR Enterprises in Corona Del Mar, California. The parties had previously failed to reach a settlement after a 2013 mediation with Phillips.

Boies' Supreme Court arguments in the case resulted in two resounding wins for the plaintiffs. In 2011, he persuaded the court to unanimously reverse a Fifth Circuit ruling that said plaintiffs in securities cases must show at the class certification stage that their losses were caused by the defendants' alleged wrongdoing.
The Fifth Circuit's position on loss causation "essentially precluded class certification in securities cases," Boies told the American Lawyer at the time.

The next time the case went up to the Supreme Court in 2014, Halliburton argued the court should get rid of the fraud-on-the-market presumption in securities cases. That doctrine means plaintiffs do not have to show that individual investors relied on misleading company statements.
Once again, the court ruled unanimously in Boies' favor, declining to overturn the 1998 opinion that established the fraud-on-the-market presumption.

The Dallas trial court in 2015 certified a class with respect to one of six corrective disclosures the lead plaintiff claimed, according to the Halliburton statement. The company appealed the ruling to the Fifth Circuit before settling.
Goldfarb declined an interview request for this story. Other lawyers representing the plaintiffs class were Lawrence Vincent of Burns Charest in Dallas and Kahn Swick & Foti attorneys Lewis Kahn, Michael Swick and Neil Rothstein in Madisonville, Louisiana, and Kim Miller in New York.

Halliburton is represented by Baker Botts attorneys David Sterling in Houston and Jessica Pulliam, Thomas O'Brien and John Lawrence in Dallas.

The case is before U.S. District Judge Barbara Lynn, chief judge for the Northern District of Texas. Settlement paperwork had not appeared in the court docket at press time.

06/14/2016

IT IS IMPORTANT TO HAVE AN ATTORNEY WITH INTEGRITY!

http://m.ocregister.com/articles/swimming-719202-knutson-foster.html

In November 2010, attorney Richard J. Foster reached out to longtime friend Chuck Wielgus, the president of USA Swimming, on behalf of swimmers Dagny Knutson and Kate Ziegler. The move was an attempt to resolve a potential dispute between the swimmers and USA Swimming over financial and training sup...

10/27/2015

HOUSTON PLAINTIFFS FIRM SPENDING THE MOST IN THE NATION ON TV ADVERTISING-$25 MILLION

Houston plaintiffs firm AkinMears will spend $25 million on television advertising this year, more than any other firm in the nation, according to a report on trial lawyer advertising by the U.S. Chamber Institute for Legal Reform.

Others Texas firms among the top 10 TV ad spenders this year are Pulaski & Middleman of Houston (now Pulaski Law Firm), in third place at more than $24 million, and Jim S. Adler of Houston, in ninth place with $10 million. Also, Austin-based Legalzoom.com, an online company that provides legal services and forms, is in fourth place, with about $12.5 million in TV spending for 2015.

The spending statistics include ad spending through Sept. 30, and then prorated through the end of the year for the totals, according to the report, "Trial Lawyer Marketing: Broadcast, Search, and Social Strategies."

The ILR, an affiliate of the U.S. Chamber of Commerce, made the report public on Oct. 27 but provided Texas Lawyer with an advance copy.

While the report indicates that AkinMears is spending a lot of money to attract clients through television advertising, the firm may be scaling back that spending as it attempts to obtain clients by purchasing an interest in them from other lawyers, according to allegations in a lawsuit filed on Sept. 29 against the firm by a former employee.

In that petition, filed in state district court in Harris County, former AkinMears employee Amir Shenaq alleges that he left a job in finance at Wells Fargo Securities to join AkinMears in March to help it raise money to "start making direct investments in mass tort litigation" and get away from the business practice of securing clients through television advertisements. Shenaq seeks $4.2 million in unpaid commissions and fees from the firm and its name partners. The defendants have not filed answers to his allegations.

Legal advertising on television has grown by 68 percent over the last eight years, according to the ILR report, with a projected $892 million in 2015, compared with $531 million in 2008. It has grown six times faster than all other advertising, according to the report.

Ken Goldstein, a professor of politics at the University of San Francisco who worked on the report, said that the $25 million estimate for AkinMears' television spending this year is comparable to TV ad spending on a major U.S. Senate campaign.

When asked why legal advertising on TV has grown so much over the last few years, Goldstein said, "My general rule of thumb is that people advertise because it works."

As for online advertising, 23 of the 25 Google keywords in online searches from Jan. 1 through June 30 were for personal injury law firms. The most expensive Google key words phrase was "San Antonio car wreck attorney," at $670 per click, according to the report. Another among the top 25 is "El Paso accident lawyer," at $414 per click.

The report said that the most expensive clicks connected to a disease are for mesothelioma.

Goldstein said that the statistics on TV advertising came from Kantar Media. The report credits the keyword statistics to WebpageFX, an online marketing firm, and SemRush, an online research firm.

09/29/2015

ARMSTRONG SETTLES TEXAS LITIGATION WITH SCA PROMOTIONS!

Armstrong Settles With Insurer After $10M Perjury Sanction

Former cyclist and performance-enhancing drug user Lance Armstrong has settled a Texas state lawsuit with SCA Promotions and apologized to the prize insurer after an arbitration panel awarded SCA $10 million for what it called “the most devious sustained deception” in sports history, Armstrong's attorney confirmed Monday.

Former cyclist Lance Armstrong has settled a lawsuit with prize insurer SCA Promotions. (Credit: AP)
Armstrong will pay a confidential amount to end his long-running battle with SCA, which sued him and his company his Tailwind Sports Corp. in February to confirm the $10 million arbitration award. The arbitration ruling blasted Armstrong for an “unparalleled pageant of international perjury,” finding that he lied to the tribunal in earlier arbitration proceedings stemming from a dispute over whether SCA had to pay prizes for Tour de France titles Armstrong won amid doping rumors.

“I am pleased to have this matter behind me and I look forward to moving on,” Armstrong said in a statement provided by his attorney Timothy Herman. “I do wish to personally apologize to SCA and its CEO, Bob Hamman for any past misconduct on my part in connection with our dispute and the resulting arbitration.”

Armstrong called the settlement “mutually acceptable to all parties” but said the terms were confidential.

The feud has its roots in an agreement Armstrong entered with SCA guaranteeing him prize money if he won the 2002, 2003 and 2004 Tour de France races. Armstrong was named the winner of those races, but SCA took him to arbitration based on rumors that he had cheated, which Armstrong denied under oath.

SCA agreed to pay $7.5 million under a 2006 settlement, but the insurer sued Armstrong in 2013 after he admitted doping. Armstrong argued that the original settlement couldn’t be second-guessed, but Dallas County District Judge Tonya Parker allowed arbitration to proceed. A Texas appeals court said Armstrong couldn’t immediately appeal Judge Parker’s order, and the state Supreme Court refused in May 2014 to take the case.

The dispute then returned to the same arbitration panel that had conducted the initial proceedings a decade earlier. In a 2-1 decision handed down in February, the tribunal slapped Armstrong with a $10 million fine, saying the punishment was necessary because of Armstrong’s serious perjury.

“Tailwind Sports Corp. and Lance Armstrong have justly earned wide public condemnation,” panelists Richard Faulkner and Richard Chernick said. “That is an inadequate deterrent. Deception demands real, meaningful sanctions.”

Arbitrator Ted Lyon dissented from the award, saying it was “unprecedented and farfetched” that SCA could re-litigate the dispute underlying a settlement it willingly entered. SCA knew about the risk of relying on Armstrong’s statements at the time, Lyon said.

SCA took Armstrong to court shortly after winning the arbitration award. The insurer said Armstrong was refusing to comply with the award.

The cyclist said in a May court filing that the award should be vacated because the arbitration panel had no jurisdiction over the most recent dispute and no power to issue a monetary sanction. He argued that under “well-established Texas public policies,” the original settlement should have been respected as a final resolution.

An attorney for SCA did not immediately respond to a request for comment Monday.

SCA is represented by Jeff Tillotson of Lynn Tillotson Pinker & Cox LLP.

Armstrong and Tailwind are represented by Timothy Herman and Sean Breen of Howry Breen & Herman LLP.

The case is SCA Promotions Inc. v. Armstrong et al., case no. DC-15-01764, in the District Court of Dallas County, Texas.

09/09/2015

UNITED STATES HOUSE OF REPRESENTATIVES CAN SUE OBAMA ADMINISTRATION REGARDING ALLEGED IMPROPER SPENDING FOR THE AFORDABLE CARE ACT!

The GOP-controlled U.S. House of Representatives has legal standing to sue the Obama administration over allegedly improper Affordable Care Act spending, a D.C. federal judge said in an eagerly awaited ruling Wednesday.

Wednesday's decision is bad news for the ACA because the disputed subsidies are crucial to reducing co-payments and deductibles for millions of lower-income Americans shopping on health insurance marketplaces. (Credit: AP)
U.S. District Judge Rosemary M. Collyer's decision Wednesday keeps alive a politically explosive lawsuit filed by the House, which is accusing the administration of improperly distributing billions of dollars in ACA subsidies without a valid appropriation from Congress.

"If its nonappropriation claims have merit ... the House has been injured in a concrete and particular way that is traceable to [executive branch actions] and remediable in court," Judge Collyer wrote. "The court concludes that the House has standing to pursue those constitutional claims."

Jen Friedman, a White House spokeswoman, said that the U.S. Department of Justice will "seek immediate appellate review" of Wednesday's ruling.

"The law is clear that Congress cannot try to settle garden variety disputes with the executive branch in the courts," Friedman said. "This case is just another partisan attack -— this one, paid for by the taxpayers — and we believe the courts will ultimately dismiss it."

By contrast, Jonathan Turley, a George Washington University Law School professor and lead counsel for the House, praised Judge Collyer's decision as “historic and profound."

“The ruling today means that the [House] now will be heard on an issue that drives to the very heart of our constitutional system: the control of the legislative branch over the power of the purse,” Turley said.

Although not a ruling on the merits, Judge Collyer’s decision is bad news for the ACA because the disputed subsidies are crucial to reducing co-payments and deductibles for millions of lower-income Americans shopping on health insurance marketplaces.

The House also sought a declaration that the executive branch acted improperly by delaying the ACA's employer mandate. But Judge Collyer found that the House lacked standing to pursue that argument because those allegations "concern only the implementation of a statute, not adherence to any specific constitutional requirement."

The House is represented by Jonathan Turley of George Washington University Law School and Kerry W. Kircher, William Pittard, Todd B. Tatelman, Eleni M. Roumel and Kimberly Hamm of the Office of General Counsel at the U.S. House of Representatives.

The administration is represented by Joyce R. Branda, Kathleen R. Hartnett, Ronald C. Machen Jr., Jennifer D. Ricketts, Sheila M. Lieber and Joel McElvain of the U.S. Department of Justice.

The case is U.S. House of Representatives v. Burwell et al., case number 1:14-cv-01967, in the U.S. District Court for the District of Columbia.