TELECOMMUNICATIONS IMMUNITY - The Supreme Court has allowed a federal law to stand that gives immunity to telecommunications companies for helping the government with its email and telephone eavesdropping program. This includes immunity for companies like AT&T, Inc., Sprint Nextel Corp. and Verizon Communications Inc. The ACLU brought forth the claims accusing various telecommunications companies of violating the law and customers’ privacy if they worked with the National Security Agency for intelligence gathering. The case stemmed from surveillance rules passed by Congress that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.

 

AFFIRMATIVE ACTION – Nine years ago the Supreme Court ruled that colleges and universities can use race to work toward admissions of diversified campuses.  This issue will be re-heard by the current Court. The arguments will take place and will question whether to limit or even rule out taking race into account in college admissions.

 

TEXAS SUPREME COURT JUSTICE RESIGNS - Texas Supreme Court Justice Dale Wainwright has resigned effective Sept. 30, 2012  to join Bracewell & Giuliani LLP’s Austin office. The former Harris County district judge was elected to the state’s highest civil court in November 2002 and is already the third longest-serving justice on the court. Gov. Rick Perry will appoint a successor to fill out Wainwright’s term, which ends in 2014. The appointment will be subject to Senate confirmation.

Supreme Court and Vaccines

Supreme Court Addresses Vaccine Safety - A U.S. law protects drug makers from lawsuits filed for serious side effects caused by childhood vaccines, the Supreme Court ruled Tuesday. In a 6-2 vote, the court decided against a Pennsylvania couple who said their 19-year-old daughter's developmental problems were caused by a diphtheria, tetanus and pertussis vaccine she got when she was 6 months old. The parents sued the vaccine maker, Wyeth, which was acquired by Pfizer Inc. in 2009, in Pennsylvania state court. Writing for the court, Justice Antonin Scalia said the nation's special vaccine court was established to handle such claims, so that compensation could be provided to injured children without driving drug makers from the vaccine market. In July 2010, the AAP joined 21 other health organizations to file a "friends-of-the-court" brief in the case, urging the Supreme Court to protect the Vaccine Injury Compensation Program. The program was established by the National Childhood Vaccine Injury Compensation Act of 1986, which "preempts design defect claims against vaccine manufacturers," the academy said in a news release.

Summary of Bills Enacted by the 80th Texas Legislature

Below is a summary of some of the Texas bills that were passed and enacted by the 80^th Texas Legislature:

HB 1070 (Effective immediately)

HB 1070 amends the Occupations Code to establish new criteria for liability insurance for amusement rides that operate in a manner similar to a train and have prescribed safety features. The bill also permits a local government to satisfy insurance requirements for operating amusement rides by obtaining liability coverage through an interlocal agreement.

SB 502 (Effective on September 1, 2007)

SB 502 amends the minimum liability insurance coverage required for Texas motorists, effective April 1, 2008, to: $25,000 for bodily injury or death to any one person; $50,000 for bodily injury or death to two or more persons in one accident; and $25,000 for property damage in one accident. Effective on January 1, 2011, the limits will increase to: $30,000 bodily injury or death for one person; $60,000 for bodily injury or death to two or more persons; and $25,000 for property damage.

SB 1627 (Effective immediately)

SB 1627 provides that a person who commits workers’ compensation fraud may be prosecuted under Chapter 418 of the Labor Code. The bill gives prosecutors the flexibility to use the penalty provisions in the Penal Code so that workers’ compensation fraud can be punished in the same manner as fraud committed against other lines of insurance. Workers’ compensation fraud under Chapter 418, Labor Code, is a state jail felony.

HB 2467 (Effective on September 1, 2007)

HB 2467 allows a small or large employer health benefit plan issuer to modify a small or large employer benefit plan if the modification occurs at the time of renewal, the modification is effective uniformly among all employers covered by that plan, and the issuer provides notice to the commissioner and the employer not later than 60 days before the modification.

HB 2548 (Effective immediately)

HB 2548 prohibits a preexisting condition in an individual accident and health policy from applying to an individual who was continuously insured for an aggregate period of 18 months by creditable coverage that was in effect not more than 63 days before the effective date of the individual coverage.

The bill also changes the eligibility requirements for the Health Insurance Risk Pool in two situations:

• Part-time employees who are eligible to participate in an employer plan are eligible to participate in the Risk Pool if the coverage provided by the employer is more limited or restricted than the Pool’s coverage and the employer does not provide any contribution to the premium.
• Individuals who were eligible for COBRA benefits (Consolidated Omnibus Budget Reconciliation Act) who did not elect coverage or whose election lapsed or was canceled are eligible for Pool coverage subject to a 180 day exclusion for charges or expenses incurred for preexisting conditions.

HB2549 (Effective on September 1, 2007)

HB 2549 amends the specifications regarding the coverage of children and grandchildren. It allows coverage under a group life insurance policy to be extended to cover children who are unmarried and younger than 25. It also adds the ability to extend coverage to grandchildren who are unmarried and younger than 25 and a dependent of the insured for federal income tax purposes.

SB 303 (Effective on September 1, 2007)

SB 303 clarifies the statutory child support calculation for determining the net resources of an obligor by specifying in greater detail the manner in which health care coverage may be deducted from net resources.

HB 2004 (Effective on September 1, 2007)

HB 2004 requires that doctors performing peer review, utilization review, independent review, required medical examination or as a designated doctor must be certified in the specialty appropriate to the care the injured employee is receiving. The bill further requires that providers reviewing dental or chiropractic services must be licensed in these specific areas.

Women v. Walmart

The Supreme Court began hearing a bid by Wal-Mart to stop as many as 1.5 million female workers from achieving class-action status in the largest sexual discrimination case in US history. Rejection would pave the way for claims that could cost Wal-Mart, the biggest private employer in the United States and the largest retailer in the world, tens of billions of dollars in back-pay and punitive damages. Even more significantly, it would set a new precedent for labor discrimination cases and open the door to a possible flood of class-action suits from women, minority groups and people with disabilities. At the heart of the matter is whether the nature of the discrimination against the Wal-Mart women is uniform enough to be treated in one single case. A final Supreme Court ruling is expected before the end of June.

Atty Fees and Roe v. Wade

No Attorneys' Fees in Texas Noncompete Cases

As of November 2010,   the Houston Court of Appeals, found that while Texas law generally permits the recovery of attorneys’ fees for breach of contract cases, the noncompete statute does not allow a prevailing  employer to recover its attorneys’ fees. The court held that the Texas Bus. & Comm. Code 15.50 preempts Texas law applicable to non-restrictive covenant breach of contract cases.  Thus, according to this court, a prevailing employer cannot recover attorneys' fees.  This opinion is consistent with a case decided by the San Antonio Court of Appeals in 2003.  The Texas Supreme Court has not decided this issue.

38^th Anniversary Roe v. Wade

January 24, 2010 marks the 38^th anniversary of the Roe v. Wade decision legalizing abortion. More than three dozen lawmakers addressed a Washington DC crowd during a rally to start the annual "March for Life." The lawmakers, buoyed by Republican gains in the House in November, called for the landmark court decision to be overturned and said they would work to restrict tax dollars for abortion. Just last week Republicans in the House introduced two bills to toughen restrictions on taxpayer funding of abortions. Rally speakers also called for an end to funding of Planned Parenthood and booed when told that President Barack Obama made a statement over the weekend supporting the Roe decision.

Technology & Effect on Jurors

New concerns have risen for trial attorneys in this high tech Facebook age. At the office, in the car or anywhere else, we share every detail of our daily existence in real time on Facebook. Most of the time, this is acceptable; however there is a new epidemic of posting jurors opinions on Facebook before the case is over.

Recently, a Michigan juror was fined for posting how it was "gonna be fun to tell the defendant they're GUILTY."  Also, a New York juror was found to have “friended” a key witness to a trial causing the judge to order a mistrial.  An Arkansas jury used his cell phone to update his Twitter during court proceedings stating that “he just have away TWELVE MILLION DOLLARS of someone else’s money.”  

Modern social networks are a new courtroom reality and challenge for attorneys. New model jury instructions must include details explicitly instructing jurors not to communicate with anyone about the case, including via cell phone, email, Facebook, YouTube, LinkedIn, or any other social network.  Jurors will now need to be probed during voir dire on their Facebook and Twitter use, jurors should be monitored during the trial, and judges should be asked to remind jurors to report fellow juror’s misconduct should a juror fail to follow the court’s ban on communicating with others about the case.

It is mandatory for all my case preparation to include an search for the claimant or witness on the different social networks.  Now, this information is just as important from the jurors and can shape how I present my case. 

Golf Cart Rollover

One of the first trials I participated in was a golf cart rollover case that went to trial many years ago.  It pitted golfing buddy against golfing buddy.  The saddest part of the case was that the plaintiff truly was injured.  He required back surgery and was in continuous pain. 

The allegation was made that my client, the driver of the golf cart, failed to utilize engine braking while going down a steep hill that had a sharp curve in the middle of it.  The plaintiff was in the passenger seat. As they went downhill, the golf cart built up too much speed and applying the brakes only resulted in a loss of traction as they approached the curve quickly.  Faced with going off a cliff and certain severe injury for both, or taking the turn too fast and risking a rollover in a flat area, my client choose to turn into the curve.  The result was a rollover of the golf cart that didn't injure my client, but caused severe injury to the plaintiff. 

I was working for USAA in their staff counsel office at the time.  My client had both an auto policy and umbrella policy with USAA.  Coverage would have clearly been offered under the umbrella policy for this lawsuit, but there was a question as to whether or not his auto policy would provide coverage for the lawsuit.  My client was provided a defense in the matter, and we tried the case.  The jury felt this was an accident that involved no one's negligence, and the Plaintiff recovered nothing.

Had my client not had an umbrella policy, he may have been in a fight, not only with his golfing buddy, but with his insurer regarding coverage and defense of the matter.  He had the umbrella policy and there was no fight regarding coverage.  Most people don't understand what an umbrella policy will cover and why they would need one.  I recommend this type of policy to all my clients.  The cost is generally minimal (under $200 or $300 a year for $1 million) and the benefit is tremendous in that it will cover most things (excluding intentional acts) not covered under an auto or homeowner policy.  Consider it if you can afford it.