Texas's loser pays law anticipated to have minimal effect

Texas Governor Rick Perry's latest plan to kick trial lawyers out of his state may not send them packing after all.

The so-called "loser pays" law that Perry has touted as he seeks the Republican nomination for U.S. president will not have a significant impact in his state, according to attorneys and legal experts. The measure has sparked interest among proponents of legal reform nationwide, though other states are not rushing to adopt similar laws.

Legal experts say the Texas law, which in certain cases makes the loser in a civil lawsuit pay the other side's legal fees, is narrowly written, and will only affect a small number of lawsuits, perhaps 5 percent of those filed in Texas.

"It's a triumph of labeling," said Walter Olson, a fellow at the libertarian Cato Institute in Washington, and an expert on legal reform. "This is not a 'loser pays' system -- not even close. It is one little slice of 'loser pays' that wouldn't have been given national attention if the label hadn't been slapped on it."

Perry, the Republican frontrunner in the 2012 presidential campaign, made the legislation an "emergency" item on his 2011 agenda as governor.

He said the law will not only reform Texas' legal system, but will also create jobs. Because they will be able to avoid "frivolous" lawsuits, employers will flock to the state to do business, he said.

But the new "loser pays" provision likely will be invoked only occasionally, only in cases dismissed from court in the early stages, said Bradley Parker, a partner at law firm Parker McDonald in Fort Worth.

Perry has boasted about the new law on the campaign trail, including at a nationally televised Republican presidential debate earlier this month when he said the measure, coupled with previous reform efforts, would go a long way to "tell the trial lawyers to get out of your state."

The law is significant, says Perry spokeswoman Allison Castle, because it "streamlines" litigation and "keeps defendants from being "dragged through months, or even years, of expensive discovery before the court can dismiss the case."

The Texas law, which went into effect on September 1, brings the state in line with other U.S. states by allowing a judge to declare an early dismissal of a lawsuit. Now, when a judge throws out a case because it has "no basis in law or fact," the court will award attorneys' fees to the prevailing party.

Alex Winslow, executive director of Texas Watch, a consumer advocacy group, said he was more concerned with another part of the law: changes to a provision that might be nicknamed "winner pays." that could discourage individuals and small businesses from bringing legitimate lawsuits against large corporations

If a plaintiff rejects a settlement offer and subsequently wins an award worth less than 80 percent of the rejected offer, the defendants can recover litigation costs out of the jury award.


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source: Reuters (Herbst, 9/28)

Deaths linked to cantaloupe could reach 16 or more; deadliest outbreak in more than a decade

WASHINGTON — Health officials say as many as 16 people have died from possible listeria illnesses traced to Colorado cantaloupes, the deadliest food outbreak in more than a decade.

The Centers for Disease Control and Prevention said Tuesday that 72 illnesses, including 13 deaths, are linked to the tainted fruit. State and local officials say they are investigating three additional deaths that may be connected.

The death toll released by the CDC Tuesday — including newly confirmed deaths in Kansas, Missouri, Nebraska and Texas — surpassed the number of deaths linked to an outbreak of salmonella in peanuts almost three years ago. Nine people died in that outbreak.

The CDC said Tuesday that they have confirmed two deaths in Texas and one death each in in Kansas, Missouri and Nebraska. Last week the CDC reported two deaths in Colorado, four deaths in New Mexico, one in Oklahoma and one in Maryland.

New Mexico officials said Tuesday they are investigating a fifth death, while health authorities in Kansas and Wyoming said they too are investigating additional deaths possibly linked to the tainted fruit.

Listeria is more deadly than well-known pathogens like salmonella and E. coli, though those outbreaks generally cause many more illnesses. Twenty-one people died in an outbreak of listeria poisoning in 1998 traced to contaminated hot dogs and possibly deli meats made by Bil Mar Foods, a subsidiary of Sara Lee Corp. Another large listeria outbreak in 1985 killed 52 people and was linked to Mexican-style soft cheese.

Listeria generally only sickens the elderly, pregnant women and others with compromised immune systems. The CDC said the median age of those sickened is 78 and that one in five who contract the disease can die.

Dr. Robert Tauxe of the CDC says the number of illnesses and deaths will probably grow in coming weeks because the symptoms of listeria don’t always show up right away. It can take four weeks or more for a person to fall ill after eating food contaminated with listeria.

“That long incubation period is a real problem,” Tauxe said. “People who ate a contaminated food two weeks ago or even a week ago could still be falling sick weeks later.”

CDC reported the 72 illnesses and deaths in 18 states. Cases of listeria were reported in California, Colorado, Florida, Illinois, Indiana, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Texas, Virginia, West Virginia, Wisconsin, and Wyoming. The most illnesses were reported in Colorado, which has seen 15 sickened. Fourteen illnesses were reported in Texas, 10 in New Mexico and eight in Oklahoma.

The outbreak has been traced to Jensen Farms in Holly, Colo., which recalled the tainted cantaloupes earlier this month. The Food and Drug Administration said state health officials had found listeria in cantaloupes taken from grocery stores in the state and from a victim’s home that were grown at Jensen Farms. Matching strains of the disease were found on equipment and cantaloupe samples at Jensen Farms’ packing facility in Granada, Colo.

FDA, which investigates the cause of foodborne outbreaks, has not released any additional details on how the contamination may have happened. The agency says its investigation is ongoing.

The Rocky Ford-brand cantaloupes from Jensen Farms were shipped from July 29 through Sept. 10 to Arkansas, Arizona, California, Colorado, Idaho, Illinois, Kansas, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.

The recalled cantaloupe may be labeled “Colorado Grown,” ‘’Distributed by Frontera Produce,” ‘’Jensenfarms.com” or “Sweet Rocky Fords.” Not all of the recalled cantaloupes are labeled with a sticker, the FDA said.

Unlike many pathogens, listeria bacteria can grow at room temperatures and even refrigerator temperatures. The FDA and CDC recommend anyone who may have one of the contaminated cantaloupes throw it out immediately and clean and sanitize any surfaces it may have touched.

About 800 cases of listeria are found in the United States each year, according to CDC, and there usually are three or four outbreaks. Most of these are traced to deli meat and soft cheeses, where listeria is most common.

Produce has rarely been the culprit, but federal investigators say they have seen more produce-related listeria illnesses in the past two years. It was found in sprouts in 2009 and celery in 2010.

While most healthy adults can consume listeria with no ill effects, it can kill the elderly and those with compromised immune systems. It is also dangerous to pregnant women because it easily passes through to the fetus. Dr. Tauxe of the CDC said the type of listeria linked to the cantaloupes is not one that is commonly associated with pregnancy-associated illnesses, however. State and federal health authorities have not definitively linked any miscarriages, stillbirths or infant illnesses to the current outbreak.

Symptoms of listeria include fever and muscle aches, often with other gastrointestinal symptoms. Victims often become incapacitated and unable to speak.

Debbie Frederick said her mother knew something was wrong when her father, 87-year-old William Thomas Beach, collapsed at his home in Mustang, Okla. and couldn’t get up. He died a few days later, on Sept. 1. The family later learned his death was linked to eating the cantaloupe and sued Jensen Farms.

“First you just kind of go into shock,” said Frederick. “Then it settles in that he would still be alive if this hadn’t happened. It’s a life, for what?”



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Online:

CDC on cantaloupe outbreak: http://www.cdc.gov/nczved/divisions/dfbmd/diseases/listeriosis/092111.html

FDA on cantaloupe recall: http://www.fda.gov/Food/FoodSafety/CORENetwork/ucm272372.htm

Center for Science and the Public Interest, “Super Safe Your Kitchen”: http://www.cspinet.org/new/pdf/safekitchen.pdf

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Associated Press writers Jamie Stengle in Dallas, Josh Funk in Omaha, Neb., Maria Sudekum Fisher in Kansas City, Mo., Susan Montoya in Albuquerque, N.M. and Ben Neary in Cheyenne, Wyo. contributed to this report.


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source: Washington Post (Jalonick, 9/28)

Bass Pro Outdoor World being sued for Discrimination

Bass Pro Outdoor World was accused in a federal lawsuit filed Wednesday of discriminating against qualified black and Hispanic job applicants since 2005 and retaliating against those employees who spoke up about the practice.

The Equal Employment Opportunity Commission, a federal agency charged with enforcing anti-discrimination laws in employment, filed the lawsuit in U.S. District Court in Houston after failing to reach a voluntary settlement with the company.

The nine-page complaint cited incidents at stores in Indiana, Texas, Louisiana and Alabama but said the hiring discrimination and retaliation permeated multiple stores in various states.

The lawsuit alleges that qualified blacks and Hispanics were routinely denied positions at Bass Pro Shop stores and that managers of stores in Houston, Louisiana and other locations made derogatory racial comments acknowledging the practice.

Larry Whiteley, a spokesman for the Springfield, Mo.-based company, said the company had not reviewed the lawsuit and could not immediately comment.

At one store in the Houston area, the general manager allegedly told the human resources manager that "it was getting a little dark in here, you need to hire some white people," according to the lawsuit. Other managers or supervisors used racial and ethnic epithets to describe blacks and Hispanics, the lawsuit says.

The EEOC also alleged that the company destroyed or did not retain documents related to applications and internal discrimination complaints.

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source: www.indystar.com (9/22)

2 in Texas get sick from melons

Health officials have issued a warning for cantaloupes from a revered melon-producing area of Colorado amid a bacteria outbreak blamed for four deaths in the state and New Mexico, troubling farmers who depend on sales of the fruit.

The warning from the Centers for Disease Control and Prevention came after numerous cases of a strain of Listeria were reported in six states, including at least 11 from Colorado, 10 from New Mexico, two from Texas, and one each from Indiana, Nebraska and Oklahoma.

The agency said it was the first Listeria outbreak linked to cantaloupe in the United States. The U.S. Food & Drug Administration said it had not recalled the melons while it worked to locate the source.

Rocky Ford cantaloupes, named for a region along the old Santa Fe Trail about 130 miles southeast of Denver, are prized for their above-average sugar content.

"This is really silly. You can get Listeria any place. I eat those melons every day," said Kent Lusk, a fifth-generation cantaloupe farmer from Rocky Ford.

Colorado Agriculture Commissioner John Salazar said the contamination might not be the cantaloupes, but a truck or other source. But several Colorado grocery chains pulled their supplies as a precaution, and New Mexico issued a voluntary recall. State Environmental Health Bureau inspectors were collecting cantaloupe samples from grocery stores and distributors across New Mexico for laboratory analysis.

Listeriosis is a serious infection usually caused by eating food contaminated with the bacterium Listeria monocytogenes. The disease primarily affects older adults, pregnant women, newborns and adults with weakened immune systems.

Colorado health director Chris Urbina said people who are at high risk included people 60 and older, those with weakened immune systems from transplants and people with chronic diseases. Symptoms can include fever, muscle aches, diarrhea, headache, stiff neck, confusion and convulsions. Listeriosis can cause miscarriages and stillbirths.

The CDC warning advised people with cantaloupes at home to see if they came from the Rocky Ford region, and if so, not to eat the melons if they're in a vulnerable group. Health authorities asked people throwing out Rocky Ford cantaloupes to put them in a sealed plastic bag before putting them in the trash.

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source: Houston Chronicle (AP, 9/14)

Judge's son among those arrested during Labor Day incidents

The son of Midland County Precinct 2 Judge David Cobos was among more than 30 people arrested in the county for drunken driving during the holiday weekend.

Most were first- or second-time offenders, but others were arrested in the commission of other dangerous and violent crimes while allegedly driving drunk.

Joshua David Cobos, 21, and Jose Guadalupe Robles, 37, both were arrested for a second-degree felony charge of aggravated assault with a deadly weapon, a motor vehicle in this instance. Cobos also was arrested for a first-time offense of misdemeanor driving while intoxicated. Robles also was charged with a second-degree felony of endangering a child. The men were arrested Sunday night.

But Cobos wasn't the only one arrested for allegedly driving while intoxicated. There were 14 other arrests for a first-time offense, four for a second-time offense and five for a third or more charge of DWI. Also, eight people were arrested on misdemeanor charges of DWI with an open container, for a total of 32 arrested for DWI between Friday afternoon and Monday night, according to records obtained by the Reporter-Telegram from the Texas Department of Public Safety, Midland County Sheriff's Office and the Midland Police Department.

"I figured the arrests would have been a lot lower this weekend because of how much we publicized the crackdown," Sheriff Gary Painter said Tuesday afternoon.

But for all the arrests, Painter said, he was happy there weren't any deaths or significant injuries related to drunken driving. He said he hopes to partner with local law enforcement and the district attorney's office more often for "no refusal" weekends.

"This many intoxicated drivers is extremely dangerous," Painter said before reiterating his hope there will be many more crackdown weekends in the near future.

Cobos' son

Midland police were alerted to a rolling, mobile disturbance Sunday shortly before 9 p.m. Officers were originally told the "road rage" incident occurred at the intersection of Andrews Highway and West Illinois Avenue, but were advised shortly after that the vehicles were still "smashing into each other" and headed southbound on Andrews Highway, according to Cobos' and Robles' arrest reports.

Police finally caught the pair at the intersection of West Florida Avenue and South Garfield Street after both vehicles were disabled because of multiple collisions.

After interviewing witnesses and viewing the physical evidence, police determined the disturbance started around the 300 block of Andrews Highway. Reports said Cobos was driving a green 1995 GMC 1500 and Robles was driving a tan Buick Park Avenue when the pair got into a verbal disturbance while driving.

There were conflicting accounts of how the dispute began, but both parties are alleging the other was responsible, police said.

Robles told police officers that Cobos intentionally pulled in front of him, cutting Robles off and causing Robles to slam into the back of Cobos' truck. He then said Cobos threw a beer bottle at his car.

Cobos told officers he accidentally cut Robles off, causing the accident but said there was no intent. He added that Robles continued to pursue him, eventually and repeatedly striking his truck multiple times near the 2100 block of West Florida Avenue.

Regardless of how the incident began, officers concluded there were "straight tire marks from (Robles' vehicle) slamming into (Cobos') vehicle," according to Robles' arrest report.

Witnesses told police the pair began fighting after the final collision.

Based on the evidence and reports attained, Midland police decided to charge both in the rolling assault. Officers wrote in Cobos' arrest report that he used "his (pickup) as a weapon when he intentionally stopped the vehicle in an intersection in a manner that caused a collision with the victim," according to Cobos' arrest reports.

Because multiple witnesses had seen Robles repeatedly slam into Cobos' truck, he also was booked for the same charge. "Due to the fact that (Robles) intentionally struck (Cobos') vehicle and at the same time had a child under the age of one (in the vehicle), he was charged with aggravated assault with a deadly weapon and endangering a child," according to Robles' arrest reports.

Judge Cobos was on call during the holiday weekend, but upon hearing of the incident, he recused himself from the case. Precinct 4 Judge George Zimmerman presided over the arraignment of the younger Cobos.

"I'm a by-the-book judge," Cobos told the Reporter-Telegram in his office Tuesday afternoon. "I immediately recused myself. I've never done anything improper, nor will I start now."

He declined to discuss much of the incident on the record, but a visibly distraught Cobos said he was sad over his son's alleged actions.

Judge Cobos said elected officials, judges and police officers all have families and sometimes they have to deal with issues like any other citizen.

"I'm a damn tough judge and I applied the same standards at home," Cobos said. "When you're an adult, you make your own decisions ... sometimes in spite of what you're taught."

Judge Cobos said he declined to bond his son out of jail.

Joshua Cobos remained in jail Tuesday night on a $17,500 bond for the second-degree felony and for misdemeanor DWI. Robles also remained in jail Tuesday night on a $13,500 bond for two second-degree felonies. If convicted each could receive up to 20 years in prison for the aggravated assault. Robles also could receive an additional 20 years for endangering a child while striking Cobos' truck.

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source: mywesttexas.com (Cannon, 9/7)