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June 2014 Archives

Emotional distress among legal malpractice attorneys and lawsuits

Inclusion of emotional distress claims varies from state to state among legal malpractice attorneys and lawsuits.

A Connecticut judge rules that legal malpractice plaintiff can't sue for emotional distress,

June 27, 2014. By Debra Cassens Weiss via A Connecticut judge has ruled that a client who sued her lawyer for alleged malpractice can't include a claim for emotional distress. Judge Jon Blue said that the plaintiff, Kimberly Ann Tyrseck, may be entitled to punitive damages if her claims are true, but she could not sue for emotional distress, the Connecticut Law Tribune reports. Tyrseck alleged that lawyer Mark Carbutti of Wallingford failed to file a timely lawsuit against a bar for serving liquor to an intoxicated person, the driver of a car that struck and critically injured Tyrseck. Carbutti did sue the driver, who settled with Tyrseck. Tyrseck claimed that Carbutti assured her she would get a recovery against the bar, even after he missed the deadline for filing suit. Carbutti did not respond to the Connecticut Law Tribune's request for an interview. Blue's ruling contrasts with a decision last year by the Iowa Supreme Court, which allowed an emotional distress claim based in a malpractice suit against an immigration lawyer.

Personal Injury Lawsuit Involving Boy at Cemetary

Personal injury lawsuits on the west coast are less common than on the east coast because the cemeteries in the west are not as old. Still, tragedies can and do happen.

Lawsuit states that a 600-pound cross fell, injured child at Cambria cemetery

June 27, 2014. By  Patrick Pemberton via The parents of a 7-year-old boy are suing Santa Rosa Cemetery in Cambria, saying the boy's pelvis was crushed when a tombstone at the cemetery fell on him.The lawsuit, filed in San Luis Obispo Superior Court on Wednesday, seeks an unspecified amount of damages. According to the suit and the plaintiff's attorney, Willem Wijsen, then 5, was visiting the historic cemetery with his mother in August 2012, when a heavy granite cross fell off its stone base and onto the boy. "The pictures of his injuries are pretty traumatic," said Steven Roberts, representing the family. "If it had hit him in the head, we'd have a wrongful death case." After the grave marker landed on him, Willem was in the hospital for several weeks and had to be placed in a full body cast, Roberts said. "He's lucky that he's walking again," he said. The boy's mother, Susannah Wijsen, is originally from Los Osos and used to visit the cemetery with her family, Roberts said. Today, she and her family live in Contra Costa County. A manager at the Old Mission Cemetery, which cares for Santa Rosa Cemetery and others in the county, referred questions to Deacon Warren Hoy of the Diocese of Monterey. Hoy did not return calls to The Tribune on Thursday. Roberts declined to say whose name was on the tombstone. "The people that own it are still alive," he said. The marker, he said, is about four feet high and features a 600-pound stone cross on a stone base. At the time, he said, the cross was glued to the base. "We didn't think the glue was ever appropriate," he said. The stone has since been repaired with bolts now connecting the cross and base. The suit, filed by Willem's father, Mark Wijsen, names the Old Mission Cemetery, Catholic Church of Cambria, Old Santa Rosa Chapel and Community Cemetery and the Old Santa Rosa Church. More defendants could be added in the future, Roberts said. The boy was not pushing on the cross when it collapsed, he said, though that would not make the cemetery less liable. "You've got a very heavy cross just balancing on its base," he said. Tombstone-related accidents are more common on the East Coast, Roberts said, because many cemeteries there are older and have more aged grave markers. But two years ago, a suit was filed regarding a similar accident in Paso Robles. In that case, 4-year-old Heather Wolcott was visiting Paso Robles Cemetery with her mother when a 100-year-old tombstone fell off its base and landed on the girl's leg. The girl suffered a broken ankle. Attorney James McKiernan, who represented the girl's family in the lawsuit that followed, could not be reached Thursday. But Roberts said the plaintiffs won their suit against the Paso Robles Cemetery District. Other cases involving fallen tombstones nationwide have had more serious outcomes. In 2012, a 4-year-old boy visiting a cemetery in Park City, Utah, with his father was killed when the metal connecting a 6-foot, century-old headstone to its base snapped, causing the stone to land on the boy. In North Carolina four months earlier, a 4-year-old girl was killed as she sat at a cemetery with other children in her vacation Bible school. In that case, a 1,000-pound cross slab fell off its base and landed on the girl. The Cambria cemetery sits behind a chapel built in 1870. The graveyard, once visited by celebrities such as William Randolph Hearst, Gary Cooper and Bing Crosby, features three Oscar winners (for sound), in addition to some of the town's founding members. While it features many old tombstones, some made of wood, it also includes more modern tombstones, including the one that injured Willem.  

Serious Head Injury From Fraternity Hazing

One young man dies and another suffers a serious head injury. The local chapter of the fraternities responsible can be held liable while the national organizations themselves remain protected.

National fraternity groups excused from hazing lawsuits

June 17, 2014. By Tim Evans via pair of decisions by the Indiana Supreme Court released two national fraternity organizations from liability claims involving one Wabash College student who died and another who was seriously injured in alleged hazing incidents. The lawsuits can move forward against the local chapters -- but not the national organizations -- of Delta Tau Delta and Phi Kappa Psi, the Indiana Supreme Court ruled in two decisions handed down since February. The decisions should help bolster efforts by the national organizations to educate their campus chapters and discourage hazing, said Bryan Babb, attorney for the North-American Interfraternity Conference, an Indianapolis-based trade group representing 74 men's fraternities. Beforehand, the fear of being held responsible for some tragedy could have chilled such efforts. Indianapolis attorney Kevin C. Schiferl, who represented one of the national fraternities involved in the lawsuits, said the decisions have implications that extend far beyond the Greek system. He explained they create a common-sense precedent covering groups such as the Boy Scouts, Girl Scouts, Veteran of Foreign Wars and others with local chapters of a national organization. "This draws a clear line in the sand between where parties should look for recovery and where they should not," he said. "It is wrongheaded when something tragic happens to cast a net so wide to bring in other entities that have little to do with what happened on a local level."  

Traumatic Brain Injury Lawsuit Against Ski Resort

Sugarloaf ski area sued by Delaware family for an accident that caused back injuries and traumatic brain injury to a Delaware doctor.

A Maine judge has ruled that a lawsuit brought by a Delaware family injured in a ski lift accident in 2010 can move forward. Dr. Michael Katz, an anesthesiologist from Centreville and former Delaware state senator, suffered a broken back and traumatic brain injury. He was the most seriously injured of the eight people hurt in the December 2010 accident at Sugarloaf Mountain in Carrabassett Valley. His daughters, 13 and 11 at the time, suffered back and head injuries. They sued the ski area's operators and associated entities in October, seeking unspecified damages. The Sun Journal reports that Franklin County Justice Nancy Mills last month dismissed a counterclaim by the ski area and ruled that the ski lift is a common carrier. A lawyer for the Katzes called the ruling "very good news." A Sugarloaf spokesman could not be reached. This story includes material from the Associated Press. Original story here.

Legal Malpractice, Fraud, the SEC, and Allen Stanford

While lawyers in a Houston courtroom argue legal malpractice around whether a law firm met the standard of care surrounding whether it should have or did share its knowledge of the Allen Stanford  SEC investigation, a related debate continues re the ethics and possible lack of independence from Wall Street of one of the lead investigators,  Sharon Bowen, Obama's pick to be  a commissioner of the Commodity Futures Trading Commission.

Dallas lawyer at center of Houston trial over whether firm owed clients a warning on fraudster Allen Stanford

June 9, 2014. By Michael Lindenberger via WASHINGTON -- A Dallas lawyer is at the center of a legal malpractice dispute unfolding in a Houston courtroom this week. The jury trial starts Monday in a $51 million suit that pits the former owners of the Houston Galleria and its attached office towers against their former lawyers, Andrews Kurth LLP, a Houston-based firm with offices in Dallas and eight other cities. A Harris County district court clerk said Friday the trial before Judge Bill Burke is scheduled to last two to three weeks. In it, lawyers for the former owners of the Houston Galleria will argue Andrews Kurth should have warned the real estate company that another of the law firm's clients was under suspicion by the of SEC of massive fraud. Andrews Kurth represented both Walton Houston Galleria and R. Allen Stanford's company, Stanford Financial Group, while the two companies were negotiating the long-term lease and possible purchase of the Galleria office buildings. [caption id="attachment_1184" align="alignright" width="300"]mi testifies at a Senate Banking Committee hearing on the agency's probe of financier R. Allen Stanford's alleged Ponzi scheme. Photo by Joshua Roberts, Bloomberg News[/caption] Walton alleges that the law firm knew that its other client, Stanford, was under heavy suspicion of fraud by the Securities and Exchange Commission and should have warned the real estate firm that its long-term negotiations were at risk. To make its claim, the company has argued that the law firm knew of the SEC's suspicions because its senior partners had spent months recruiting the chief of enforcement in the Fort Worth offices of the SEC, an attorney named Spencer Barasch. Andrews Kurth hired Barasch in 2005, just weeks before the SEC sent Stanford an official inquiry that would later trigger an all-out investigation. R. Allen Stanford would ultimately be convicted of fraud and be sentenced to 110 years in prison. His firm was responsible for one of the largest Ponzi schemes in U.S. history. Questions about Stanford Financial Group were raised repeatedly over the years, but the SEC under Barasch had declined to mount a formal investigation. A 2010 Office of Inspector General's report by the SEC concluded that Barasch had been a key voice in scuttling inquiries into the company's operations, which included selling certificates of deposit in a bank in Antigua. A call to Barasch last week was not returned, but a spokeswoman for the law firm later declined to comment on the case. In its legal filings, the law firm has denied wrongdoing. It stated that Stanford, not the lawyers, was responsible for any losses by Walton. The malpractice suit is just one of many legal tussles playing out in the wake of the more than $7 billion in investments that collapsed when Stanford's scheme collapsed. The question of why the SEC was so slow in launching its investigation has plagued the SEC, and especially its Fort Worth office for years. Barasch's role has also been scrutinized repeatedly, including in a multi-part series by, The Derailment of the SEC. In Houston, Walton tried last week to convince a judge to require Barasch to testify at the trial, but failed. A state judge's subpoena power for a civil case is typically good only for 150 miles, and Burke said Walton hadn't provided a strong enough case to make an exception this time. Barasch works in the firm's Dallas office. But Walton's lead attorney, Tom Ajamie of New York, said he was pleased with the judge's ruling nonetheless, since Burke also ruled that the plaintiffs can press their claims that the hiring of Barasch shows that the Andrews Kurth knew about the problems with Stanford. A report last week by quoted the judge as saying the plaintiffs could press that case, and used Barasch's video deposition, but would face his skepticism if they tried to "make this all about Stanford." In its complaint, Walton alleges that Andrews Kurth spent months recruiting Barasch to the firm. They assert that Barasch knew about federal enforcement officials' suspicions about Stanford and that therefore so did his new law firm. What's certain is that soon after Barasch arrived at Andrews Kurth, Stanford reached out to the new lawyer to ask for his help with the SEC.   In a sworn April 1 deposition, Barasch states that almost immediately after he arrived at Andrews Kurth in April, 2005, he was contacted by Stanford's general counsel Mauricio Alvarado to work for the company on its response to an inquiry just received by the SEC. Allen Stanford himself signed off on approaching Barasch. "This guy looks good and probably knows everyone at the Fort Worth office. Good job," Stanford wrote in an email when told of plans to approach Barasch, according to a 2010 report by the SEC's inspector general. With Allen Stanford's go-ahead, Alvarado called Andrews Kurth and on Friday, June 17 he and Barasch spoke on the telephone about the possibility of Barasch helping the company respond to the preliminary inquiry from the SEC. Barasch would later fly to Miami to meet with Alvarado, and discuss additional work with the company's compliance chief, according to the deposition. In his deposition, Barasch said he believed he was free to work "behind the scenes" for Stanford, just not directly represent the company before the SEC. He ultimately billed just 12 hours for work for Stanford. He appears to have stopped all work for the company after a third attempt to convince the ethics officials to allow him to represent the company was unsuccessful. The U.S. Department of Justice and the SEC would later conclude that Barasch called his former colleagues on behalf of Stanford, despite having been told by ethics officials in Washington that he could not represent the company. Barasch agreed in 2012 to pay a $50,000 fine to the Department of Justice, which concluded he had improperly sought to influence his previous colleagues at the SEC. The SEC itself, citing the DOJ fine, in 2012 banned Barasch from appearing before the SEC. That suspension was lifted last year, and at that time former colleagues of Barasch spoke in his defense. Longtime Dallas lawyer Edwin Tomko, senior counsel at Dykema law firm in Dallas, was one. He told The News that since the issues never went to trial, nothing was ever proven. "I think he got a pretty raw deal," Tomko said. Meanwhile, victims of Stanford's Ponzi schemes continue to press for compensation which many of them will likely never see. On Tuesday, senators from Louisiana staged a protest over the confirmation of Sharon Bowen, President Obama's pick to a commissioner of the Commodity Futures Trading Commission because they felt she has stood in the way of compensation for some victims of the Stanford schemes. Both Vitter and Mary Landrieu, a Democrat, voted against Bowen, who was confirmed on a mostly party-line vote, 48-46. Vitter, a Republican, said on the floor that the SEC failed to protect investors and that the Securities Investor Protection Corporation, where Bowen was acting chair, failed them again.

Hall of Fame Quarterback Joins Traumatic Brain Injury Lawsuit Targeting NFL

Dan Marino Joins Traumatic Brain Injury Lawsuit. The Case Against The NFL Continues to Gain Momentum. 

June 3, 2014, via CNN
Hall of Fame quarterback Dan Marino has joined the concussion lawsuit against the national football league.
Marino, along with 14 other former players and one spouse are seeking financial compensation for game-related injuries. They accuse the League of misleading players about the dangers of concussions.  The lawsuit alleges the NFL knew concussions could lead to symptoms of post-traumatic brain injury. Symptoms include headaches, dizziness, memory loss, dementia and alzheimer's disease.
No specific symptoms are alleged for Marino who retired in 1999 after playing 17 seasons for the Miami Dolphins.
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