Articles Posted in Court proceedings

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Seizure of President’s lawyer’s files sheds light on client protection.

A federal judge will rule on an urgent motion filed by attorney Michael Cohen’s attorneys who have challenged the controversial search of his home, office, and hotel room on Monday.

They claim that the documents and items seized were protected by the attorney-client privilege and cannot be disclosed to the special counsel or anyone else.

Mr. Cohen, of course, is the longtime attorney for President Donald Trump and has been representing him in various lawsuits and legal matters.

Whether you are involved the personal injury cases I specialize in or any other legal proceeding, communications between you and your attorney are usually confidential under the attorney-client privilege.

Since obtaining and serving a search warrant to grab an attorney’s files rarely happens, the startling early morning raid on Monday was alarming to us lawyers and to many others who believe it was overly extreme and unjustified.

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You probably think that the driver who rears-ends another car or truck is automatically at fault.

Since there are a shocking 1.7 million rear-end collisions each year in the U.S. which take the lives of 1,700 people and injure 500,000 others, they are serious problems that need to be prevented.

But juries and courts have eased up on the quality and quantity of the evidence required to defeat these cases.

A new decision from the Fort Worth Court of Appeals, Lee v. Carmona,  appears to make it harder to win rear-end lawsuits.

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dreamstime_s_104477322Or if he doesn’t carry a large enough amount?

This is unfortunately a common question since here in Texas, 20% of drivers don’t have a liability policy, and from my personal experience, this number is much higher.

That means there are at least four million uninsured drivers on our roads. Yikes!

And that doesn’t even count the huge number of highly restricted “junk policies” our state legislators allow to be sold where the driver has been excluded from coverage by the owner.

A good personal injury lawyer will chase down these subprime companies, their insureds, and drivers and demand proof that there is no insurance. We have been successful at making some of them change their coverage decisions and pay claims, and when this doesn’t happen, sue the driver (and by extension his company) for our client’s damages and collect money that way.

Usually the other driver will have liability insurance coverage, but probably in the minimum amount of $30,000 for any one person’s injuries, $60,000 for all people he injured, and $25,000 for all vehicle damage.

Of course, this is often insufficient, especially if there are serious injuries with large medical bills and lost wages and/or multiple vehicles involved in the highway chain-reactions we see far too often on the highways in the Dallas-Fort Worth area.

In this case, if you and your attorney can negotiate a successful settlement with his liability adjuster or you have to file suit and either settle at a later stage of the litigation (which happens 99% of the time) or go to a trial, you will be paid this amount.

But what happens if and when he or she didn’t have insurance — or didn’t have enough? If you file a lawsuit and take a judgment, how will you collect your damages?

This is a serious problem that Texas drivers often have to deal with.

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Arbitration clauses have become the norm in health care provider contracts that patients must sign. Stranger

Why? They usually favor the big hospital over the little consumer and remove the possibility of a lawsuit.

But what happens when a patient is better off trying to resolve a billing dispute in front of a jury of his peers, not a panel of businessmen?

On Monday an all-too-rare appellate decision allowed that to happen when it sided with an injured Texan in Cardon v. Goldberg.

Why did hospital file a lien against patient’s settlement?

Susan Goldberg received treatment at the Seton Healthcare Services emergency room in Austin for injuries she sustained in an automobile collision. Ms. Goldberg incurred $7,800 in charges which were billed to her health insurer, Blue Cross Blue Shield of Texas. BCBS had the standard reduction contract with the hospital and the bill was reduced to $6,503.

BCBS agreed to pay its share of $4,600 and Ms. Goldberg was billed the remaining $1,903. She forwarded that to her own automobile insurance provider, Nationwide Mutual Insurance Company. So far, so good.

However, instead of just paying that lower amount, Nationwide somehow paid the full $5,000 available under her personal injury protection (PIP) policy.

You might think this situation could be easily corrected. After all, the hospital was paid in excess of the original bill, let alone the adjusted bill as negotiated by BCBS, and could simply refund the difference. Ms. Goldberg never agreed that all $5,000 of her PIP proceeds was to paid to the ER and had other medical bills and lost wages that she presumably wanted to pay with those funds.

But nothing is straightforward in the often Upside Down world of insurance (“Stranger Things” fans will quickly agree). Continue reading

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Our use of Facebook, Twitter, Instagram, and other social media platforms is rampant. We think nothing of exchanging our private thoughts online. But those posts can come back to haunt people who have been injured in car wrecks. Look at what just happened to this woman.

A New York appeals court just delivered a decision that will help insurance company lawyers further pry into the social media accounts of people injured in car wrecks. The court held that a woman’s “private” Facebook status did not prevent disclosure of photos showing her physical condition before and after an accident.

In the discovery phase of lawsuits, one piece of evidence can lead to another. So courts are liberal in what attorneys can obtain if there is justification for its release. While you might assume that your post was not meant to be read by strangers, courts have taken the opposite approach.

Social media is a hot topic in the law. As the law and technology are rapidly evolving, questions about privacy versus their use at trial are common.

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Does the State of Texas have a duty to warn drivers about a dangerous road condition? Last week’s decision by a Texas appellate court ruling said that it did.

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The Dallas court affirmed a jury’s verdict in favor of a motorcyclist who crashed when his wheels hit a large crack in the highway. The trial court capped the $1,200,000 verdict at $250,000, the maximum damages allowed under the Texas Tort Claims Act, and the state appealed.

Brian Milton was traveling on FM Road 148 in Kaufman in 2012 at night. He couldn’t see the deep cracks in the road pictured here until he hit one and crashed his bike into a ditch. Milton had never driven on this road before. He was severely injured.

Testimony from state employees and other evidence showed that the TxDOT clearly knew about the problem before the crash. The responding officer noted the “big cracks” in the roadway.

A few days later, Milton’s wife took this photo of the severely eroded highway. And just one month earlier, a TxDOT worker had taken pictures of the poor road conditions and ordered signs to warn drivers about the failing road but the signs weren’t placed in the correct location.

In addition, the agency had begun roadwork nearby but had not yet made its way to the area of the crash where work orders were in place.

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A rare Congressional victory for injured plaintiffs.

Buried within the 600 pages of the federal Bipartisan Budget Act enacted on Friday is an obscure provision that allows some auto accident victims to keep more of their settlement or verdicts.

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This resolves an ongoing reimbursement battle that has been an ongoing issue in personal issue cases since a catastrophic 1996 Arkansas vehicle collision crash.

All states have statutes requiring tort claimants to repay them for medical expenses paid by their Medicaid programs. But calculating exactly how much of the plaintiff’s verdict or settlement should be reimbursed has caused vexing problems for attorneys.

For example, was it fair that the state be repaid in full while the injured person received little — if any — money? How much of the recovery had been allocated to those medical bills as opposed to other damages? And what happened in those all too frequent cases with difficult liability and damage issues and small insurance policy limits and assets that had affected case valuations in the first place?

With the new law, Medicaid enrollees will no longer be forced to reimburse state agencies from money they recovered for their non-medical expenses. As a result, they will be able to keep more of the funds for their own use.

Hurray!

The 1996 case: Arkansas Dept. of Health and Human Services v. Ahlborn

A young woman named Heidi Ahlborn was severely injured and her medical bills were astronomical. A portion ($215,000.00) was paid by her state’s Medicaid program. The Arkansas Department of Human Services (ADHS) obtained an assignment of rights from Ms. Ahlborn to repay the state from her settlement or verdict.

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download-1Judicial nominee Matthew Petersen had to withdraw today from consideration for the U.S. District Court after muddling through a dismal interview before the Senate Judiciary Committee. Thank goodness.

Peterson squirmed when Senator John Kennedy, a Republican from Louisiana, asked him to define such basic legal terms as motions in limine. They are submitted just before a trial begins and limit what evidence can be considered. Senator Kennedy also asked Petersen about the well-known Daubert test and the abstention doctrine and again the potential federal judge had no clue.

Peterson admitted that he had never tried any cases in court. Instead, he had held desk jobs working for the Republican National Committee and the Federal Energy Commission. Of all possible trial lawyers who already know the complicated litigation process, how did he ever get nominated?

As Senator Kennedy said, “You can’t just walk into a federal courthouse for the very first time and say “Here I am, I think I wanna be a judge.” It just doesn’t work that way.”

What’s worse is that federal judges are given life tenure to the bench. Firing an incompetent or unethical judge is nearly impossible.

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Third Involving Girl USEIs On Tuesday. Why So Many?

This week I was in court finalizing two cases where small children were hit by big vehicles. And I will be in court on Tuesday where the young front seat passenger was seriously injured when her driver started ingesting drugs and crashed into the concrete median.

What in the world is going out there?

Fortunately all three young ladies have recovered from their injuries. I don’t know why we have so many pedestrian injuries. But a lot of good questions were asked by the parents about the legal process so I wanted to discuss how the personal injury case of a child differs from an adult’s.

For an example, today’s hearing involved a two year old who was walking next to her mother holding her hand in a crosswalk next to I-20 last year. They had the “walk” sign. Suddenly a young woman ran into them with her SUV. Then after apologizing, the woman fled the scene and could not be found.

I went to the scene and located several eyewitnesses. I then tracked down the driver and made her admit fault. I worked with the mother to get her daughter the medical, dental, and psychological help she needed, paying for some of this treatment up front so the mother didn’t have to. She was also badly injured and I assisted her in every way possible with her case.

I later negotiated with several adjusters and attorneys and collected the entire insurance limits from three different policies for both the mother and her daughter. To put more money into the four year old’s recovery, I reduced my attorney’s fee, waived expenses, slashed medical bills, and shopped for the best annuity plan which will allow the girl to attend college. The mother was thrilled — her very kind review is here.

Wednesday’s case successfully resolved the case where a seven year old girl was crashed into by a truck driver who refused to stop for her school bus on the side of the road with its red lights flashing. She broke her leg and required surgery. I again maxed out the driver’s large liability insurance policy, reduced my client’s medical bills, cut my fees, didn’t charge expenses, and set up a favorable annuity for her college tuition. I also made the driver’s insurance company pay a large sum for the emotional distress of the girl’s brother who was standing next to her and could have also been hit. My client was also very happy with the outcome.

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use-this-photo-300x169Two 14-year-old twins were passengers being driven to school last year when their van was rear-ended by a pick up truck. The van was propelled through the walls of the Los Zarapes restaurant on the North Side of Fort Worth. Thankfully no one was inside eating.

The young women were rushed by ambulance to the hospital where their injuries and lacerations were treated. Each student attended physical therapy for the next month. I’m glad they quickly recovered from their injuries.

Their medical bills were reduced significantly by my law firm and Medicaid. That was of course good for the family, but bad for the verdict potential of the lawsuit in court. That’s because under a confusing law first passed by the Texas Legislature in 2008 and recodified in 2013 after the landmark Texas Supreme Court ruling in Haygood v. De Escabedotheir medical bills that could be used in court were reduced by $30,000.

I’m happy to report the maximum $50,000.00 available under the at-fault driver’s policy was recovered for one student and $30,000.00 for the other. The driver also sustained personal injuries and her injury lawyer recovered the remaining $20,000.00 for her, maxing out the policy.

I then set up a favorable four year payment plan starting with their 18th birthdays so they can attend college. One young lady will have approximately $17,000.00 and her sister will have $9,000.00 invested in an annuity. I am a huge proponent of these structured settlements, especially when young people are hurt.

I attended a hearing yesterday to finalize their settlements. Their mother was thrilled, said that her daughters could now go on to college, and that this would change their lives. That’s always so great to hear.

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