In The News

O.J. McDuffie, a former wide receiver for the Miami Dolphins filed a lawsuit against the team doctor, John Uribe, M.D. who cleared him to play. As a result, McDuffie claimed he had to retire prematurely. The jury agreed and found that McDuffie should be compensated in the amount of $11.5 million for his damages.

This is lawsuit stems from the handling of McDuffie’s injury and his status to play with an injured big toe in 1999 that he claims led to an early end of his career. McDuffie sustained the injury in the 10th game of the 1999 season. After being injured, the lawsuit alleged that McDuffie was told by team physician, Dr. Uribe, that McDuffie could continue to play even though MRIs of the toe showed tendon damage. As a result of the advice of the medical professionals, McDuffie played in two of the remaining six regular-season games, and then played in both playoff games that year. McDuffie was also in uniform for nine games in 2000, but none in 2001. In 2002, McDuffie was released from the team during the offseason with three years left on his contract following a longer-than-average nine-year NFL career.

McDuffie, who was the Dolphins’ first-round pick from Penn State in the 1993 NFL Draft, However, once he injured his toe, McDuffie basically lost his effectiveness as a receiver and was eventually cut from the team and forced to retire early.

• In 1998, the year before the injury, McDuffie led the NFL with 90 receptions for 1,050 yards and with seven touchdowns in 1998.
• In 1999, McDuffie had only 43 receptions for 516 yards and two touchdowns.
• In 2000, McDuffie’s numbers fell almost completely off of the map as he only recorded 14 receptions for 143 yards and no touchdowns.
• McDuffie finished his career with 415 receptions for 5,074 yards and 29 career touchdowns.

The jury awarded $10 million of lost earnings and $1.5 million of anguish,” said Stuart Ratzan, who handled the case along with Herman Russomanno. “They (the jury) were moved by the shattered dreams and career of Mr. McDuffie.”

In a profession where injuries and playing injured are expected, this verdict is remarkable and may have a far reaching consequences. Professional sports are more than just a game. Professional sports are big business, not only to the owners, but also to the players and even to the team doctors that provide services to these teams. While there is no doubt that most of these team doctors provide excellent quality medical care and advice to the players, these doctors tend to use this affiliation as a marketing tool to bolster their reputations and practices. However, in the end it is the medical advice and treatment that matters to the player as his livelihood depends on his health and his ability to play. In some cases, the player’s entire career and future contracts may be at risk if he is not cleared to play. In other cases, a career can be cut short, if an injured player is cleared to play. A classic example of this dilemma is when the head coach of the Dallas Mavericks benched his star player Dirk Nowitzki during the playoffs because of concerns that Dirk’s injury could be so severe that playing injured might jeopardize his career.

The players and the teams depend heavily on their team physicians to give the right medical advice about whether or not a player should be permitted to play despite an injury, and to consider whether or not playing with an injury or a weakened body part could jeopardize a player’s career and the team’s financial investments in that player. While there are many cases where the decision is easy, there are bound to be a number of decisions each year where the decision is not so clear.

There is little doubt that the NFL’s closer look at the effect of concussions will be affected by this verdict as doctors, teams and players are more concerned than ever before about the long term and cumulative effects of concussions and other injuries. It will be interesting to see how teams, players, the players’ union and team physicians react to this verdict and to see what type of disclaimers players and possibly even teams will now be forced to sign before a team physician clears a player to play with an injury.

Montes Law Group, P.C.

Attorneys: Rachel Montes

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

As the massive oil slick from the BP oil well approaches the Gulf Coast, the concerns about the costs of the clean up, the damage to the environment, and to the economy grow as does the need to hold those responsible for the incident. While the President of the United States and White House press secretary Robert Gibbs said Monday the administration’s commitment was to hold BP responsible to pay for all costs associated with the spill, BP did not commit to that level of accountability. President Obama said the same thing during a tour of the area Sunday. “Let me be clear: BP is responsible for this leak; BP will be paying the bill.”

The question is which bill. It might be just the bill for the costs of the clean up and only a small portion of other damages that are going to be incurred by thousands of people whose businesses and property have been or will be impacted by the oil spill. The reasons is that BP may escape being held fully accountable for its actions is that under a federal law, BP may be able to limit how much BP has to pay for damages such as lost wages, lost profits and other economic damages suffered by individuals and companies along the Gulf Coast.

The concern about whether or not BP will have to pay for all damages it has caused is heightened by BP’s rather cryptic response to inquiries about BP’s intent to pay for damages. In response to inquiries, BP issued a fact sheet Monday committing to pay “all necessary and appropriate cleanup costs” as well as “legitimate and objectively verifiable claims for other loss and damage caused by the spill.” According to the Associated Press, BP company representatives did not immediately return a phone message seeking comment on whether BP would agree to pay legitimate and objectively verifiable claims once BP has paid out$75 million. Needless to say, for anyone who has been or will be damaged as a result of this incident, it is important to get those claims in to BP as soon as possible as all estimates are projecting damages far in excess of $75 million.

In 1989, in response to the Exxon Valdez oil spill in Alaska, Congress enacted the Oil Pollution Act that holds oil companies responsible for the full costs of cleaning up the oil spill, but which also limited the oil company’s responsibility to pay for other economic damages related to oil spills only up to $75 million. Considering that the scope of the economic damages that are expected by everyone to greatly exceed $75 million, there is a real concern that BP will try to limit its exposure by claiming the cap limits its liability for such damages under federal law.

While several Democratic senators have now introduced legislation to raise the liability limit to $10 billion, it is difficult to see how such a change in the law could be made to apply retroactively.

Fortunately, there is good reason to believe that the cap on BP’s liability will not apply as the company cannot claim the right to cap their responsibility if it is found that:

1. BP’s negligence caused the spill or if

2. BP is found to have violated federal laws.

While the specific cause of the explosion that has led to the massive oil spill is still unknown, it appears that Rick Perry, the Governor of Texas, is the only one lobbying for BP by claiming BP responsible for the oil spill as the incident may have been an “Act of God.” While Governor Perry has not explained how he learned of this divine intervention or how he has ruled out all other causes of this catastrophe, it appears that the people involved in the incident believe that there was negligence involved.

Tony Hayward, The CEO of BP, is casting the blame for the Gulf oil spill squarely on the owner of the rig: Transocean. Hayward claimed on the Today show that “the drilling rig was a Transocean drilling rig. It was their rig and their equipment that failed, run by their people, their processes.”

Meanwhile, industry experts have weighed in on BP’s efforts to shift all of the responsibility to Transocean. Bob Bea, a Berkeley engineering professor and industry vet who studies oil rigs, said that Hayward’s claim that Deepwater Horizon was run exclusively by Transocean’s people and processes defies belief. BP was the lease operator of the Deepwater Horizon rig that exploded. As the lease operator, BP most likely did have a role in decision-making aboard the drilling vessel. In addition, there were six BP employees were on the rig when it exploded April 20, 2010. Ted Bourgoyne, professor emeritus in petroleum engineering at Louisiana State University explained that BP would typically have an “operator’s representative” on the rig, “who basically has to go through the procedures the company wants to follow, and has to work with the rig crew.” In addition, Bourgoyne says there is also a daily safety meeting, which includes the operator’s rep, in which “everyone will go through the procedure and go through any questions and make sure everyone understands what their role is and what they’re supposed to do” that day.

While each state may also have laws that would allow affected people and businesses to make claims against BP, there is a concern that BP will claim that those state laws are “pre-empted” by the federal Oil Pollution Act. If that is the case, then the states do not have the right to enact laws to govern this situation since federal law would control.

Beyond the $75 million in law, the federal government also maintains an Oil Spill Liability Trust Fund supported by industry fees. It can make a total of $1 billion in payouts per incident to individuals, businesses and governments. However, even $1 billion in additional funds is not likely to cover all of the losses that result from this incident.

The oil slick has forced the shutdown of several fishing grounds and that shut down may also cause shipping lanes at the mouth of the Mississippi River to run on a substantially reduced scale as ships will have to have their hulls cleaned to avoid polluting the Mississippi River. If the shipping lanes are closed, cargo vessels that move millions of tons of fruit, rubber, grain, steel and other commodities and raw materials in and out of the nation’s interior will be tied up or delayed in making their shipments. When a tanker and a tugboat collided near New Orleans two years ago, oil cascaded down the river and some 200 ships stacked up, unable to move for several days while the Coast Guard had the vessels scrubbed. Millions of dollars were lost.

The impact of the disaster is directly related to the importance of the Port of New Orleans to so many industries. In 2008, the Port of New Orleans handled 73 millions tons of cargo, including coffee from South America and steel from Japan, Russia, Brazil and Mexico. More than 245,000 tons of coffee came through the port in 2008, second only to the New York-New Jersey port. And last year, it imported nearly 260,000 tons of rubber from such countries as Indonesia and Malaysia, making it nation’s No. 1 gateway for natural rubber.

Upriver is the Port of South Louisiana, the nation’s busiest port with 224 million tons of cargo a year – mostly grain, other agricultural commodities and chemicals. Farther east lies Mississippi’s Port of Gulfport, the nation’s second-largest importer of green fruit. Central American bananas from Chiquita and Dole account for a big chunk of its cargo.

About 60 percent of the grain exported from the U.S. goes through the Southwest Pass. If the spill delays barge traffic going down the Mississippi, prices for corn, soybeans and wheat could rise quickly on global markets, said Greg Wagner, a commodity analyst. Experts predict that grain prices within the U.S. could actually fall, harming farmers, if shipments are unable to leave the U.S. and the grain begins piling up at silos in the U.S.

In addition to damage to the fishing and shipping industries, other businesses such as restaurants, hotels, casinos and other coastal businesses from Florida to Texas are expecting to be impacted by the oil slick. As summer approaches, tourists are not expected to flock to oil covered beaches.

Regardless of whether or not BP or Transocean are eventually held responsible to pay for all of the damages they may have caused, this incident has points out that artificial limits of liability are not good for the people of any state. Whether it is a cap on medical malpractice claims or on the damages an oil company is liable for when its negligence causes a disaster such as this one, those responsible for the harm should be held accountable to pay the full amount of the damages they cause.

Montes Law Group, L.L.P.

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401

Facebook @ Montes Law Group, L.L.P.

An Oregon jury ordered the Boy Scouts of America to pay $18.5 million to a man sexually abused by a former assistant scoutmaster Timur Dykes after Dykes admitted to a Scouts official in 1983 that he had molested 17 boys.

Under Oregon law, most of the money the jury awarded as punitive damages will go to the state and not to the victim. Specifically, Oregan law requires that 60 percent of the punitive damages awarded by the jury go to the state crime victims compensation fund. The verdict is believed to be the largest such award against the organization.

The jury found that the conduct of the Boy Scouts of America was not only negligent, but that its conduct was also reckless and outrageous. During a news conference, some of the jurors noted the Boy Scouts had never apologized to Lewis.

Representatives for the Irving-based Boy Scouts of America declined to comment on details of the case because other cases are pending, but issued a statement saying it maintains a “rigorous” system to screen Scout leaders. The case was the first of six filed against the Boy Scouts in the same court in Oregon, with at least one other separate case pending.

Lawyers for the victim pointed to the fact that the Boy Scouts are nearly a $1 billion corporation that could well afford punitive damages and that such damages would serve as an incentive to deter them from similar conduct in the future. Boyle said from 1984 through 1992, the Scouts were sued at least 60 times for alleged sex abuse with settlements and judgments totaling more than $16 million

During the first phase of the trial, Clark and Mones introduced more than 1,000 files the Scouts kept on suspected child molesters from 1965-85 as evidence the organization should have put a sex abuse prevention program into place decades ago. The Scouts executive now in charge of those files admitted they had never been evaluated or analyzed to help design or determine the effectiveness of a prevention program that is now in place. A number of witnesses testified for the Scouts during the second phase of the trial that they participated in a training and prevention program since at least the late 1980s, but none of those witnesses could explain why the Scouts had not yet made the “youth protection training” program mandatory for its organization.

Sadly, this case points out that it often times takes a lawsuit and a punch to the pocketbook of a corporation before the organization will actually start do the right thing. These organizations, regardless of whether it is the Boy Scouts, a church, a day car, a massage clinic, or some other business, must be held accountable for the people they hire, supervise and retain. They have a duty to conduct thorough background checks. They have a duty to supervise their representatives, and they have a duty not to continue to retain people they know or should know are engaging in inappropriate contact. Hopefully, this case sends a clear message to the Boy Scouts that the protection of all of its scouts is their first responsibility.

Whether it is a case against the Boy Scouts of America, or some of the recent pedophile allegations against the Catholic Church or a local day care center, all of these organizations have a duty to safeguard our children. For years, the Boy Scouts of America has been defending case after case of alleged sexual abuse of its scouts. As the lawyers for the victim in this case pointed out, often there is an air of silence surrounding these incidents and an effort to try to sweep them under the rug. While these organizations are no doubt filled with numbers of great people and great success stories, in the end, these organizations still need to be held accountable for their failures.

Fort Worth police are advising that a man wearing a police uniform sexually assaulted a woman after talking his way into her apartment. Police say that, so far, the investigation indicates the man was not a Fort Worth police officer who was involved the attack.

The victim reported she had returned home and several minutes later heard a knock at the door. The man told her he was looking for a fugitive and threatened to arrest her if she did not cooperate. She opened the door and was sexually assaulted, police said. Police released a composite sketch of the suspect. He is described as black, about 35 years old, 6 feet tall, with a very round face, stocky but not fat and clean-shaven with a shaved head.

Police say until the suspect is caught, women should be extra cautious, especially of anyone in uniform knocking on their door if they did not call police for help. It’s okay to ask for an ID card or if you feel appropriate, dial 911. Always look at the totality of what’s going on.”

Anyone with any information on the man is asked to call Crime Stoppers at 817-469-8477.

Are your cell phone records and information private information or public information? As cell phones become more and more technologically advanced, and as the number of people whose only telephone number is a cell phone increases, so do the number of legal issues that have arisen regarding whether cell phone records and information is private or public information. The answer has a number of implications, not the least of which is the question about whether a law enforcement agency has the right to obtain your cell phone records and information without a search warrant or if this information is constitutionally protected under the 4^th Amendment as part of every American’s right to be free from unreasonable searches and seizures.

Is There a Reasonable Expectation of Privacy?
This week, in a federal case that’s on appeal before the Third Circuit, the Court is considering the question of whether the government must obtain a search warrant to access this information because it is constitutionally protected private information or if the government can obtain that information without a search warrant because it is public information to which there is no reasonable expectation of privacy. The Bureau of Alcohol, Tobacco, Firearms and Explosives claims it needed historical (meaning stored data from previous calls, not the ability to tap into calls or call records that are expected to be made in the future) phone location information because a set of suspects “use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities.” U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department’s attempt to obtain stored location data without a search warrant. While the Court’s ruling does not eliminate the ability of law enforcement agencies to obtain the information, the ruling would require law enforcement agencies to obtain a search warrant based on “probable cause” before they can obtain the cell phone records and information.

“The big picture in the case is whether the US government can circumvent the constitutional rights of the individual, and therefore avoid the need to obtain search warrants when requesting this information by claiming that the information is obtained from a third party (a cell phone provider) as opposed to obtaining the information directly from the individual because typically information obtained from a third party does not usually get constitutional protections. The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment.

U.S. Magistrate Judge Lisa Lenihan’s ruling which was joined in by four other judges noted that cell phone location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and even extra-marital affairs. In appealing the ruling, the Department of Justice claims a search warrant is not necessary because information that only provides the location of the cellular telephone provides “only a very general indication of a user’s whereabouts at certain times in the past, and that the requested cell-site records do not implicate a Fourth Amendment privacy interest.”

The Department of Justice is relying heavily upon other rulings to support its position that the information can be obtained without the necessity of a search warrant because they claim there is no expectation of privacy. For example, in 2009, U.S. District Judge William Pauley ruled that a defendant in a drug trafficking case, Jose Navas, “did not have a legitimate expectation of privacy in the cell phone” location because Navas only used the cell phone “on public thoroughfares en route from California to New York” and “if Navas intended to keep the cell phone’s location private, he simply could have turned it off.” In response to the Department of Justice, lawyers for various interests say that Americans do not “knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones.” They take the position that the calls people are making and even the information about those calls such as when and where the calls were made and to what numbers were called are intended to be private.

Law Enforcement Uses of Cell Phone Records & Information

Without a doubt cell phone records and information can be of great benefit to law enforcement agencies who are investigating and trying to stop or to prevent criminal or terroristic activites. However, if the information falls into the wrong hands, there can be grave consequences. Businesses are routinely transacting business over cell phones. If information regarding those businesses is leaked, it can costs companies millions of dollars. Plus, on a personal level, if personal information is leaked to the wrong person, the information may lead to identity theft and a host of other very harmful consequences.

A great example of how information from cell phones can be helpful to law enforcement involves the arrest and convictions of armed bank robbers in Dallas that were known as the “Scarecrow Bandits.” The Scarecrow Bandits were a highly organized group that had robbed more than 20 Texas banks. In trying to catch and to identify the people involved in these crimes, FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The records showed that two phones had made calls around the time of the bank robberies, and that those cellular telephones belonged to men named Tony Hewitt and Corey Duffey. A Dallas jury eventually convicted the men of multiple bank robberies and weapons charges. Corey Duffey, was sentenced in January 2010 to 354 years. Another member of the Scarecrow Bandits was sentenced to 140 years in prison.

Cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.

Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. In another case, Arizona agents from the DEA tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. This information also has other uses such as the case where information was obtained from a cellular telephone tower to help search for James Kim, who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.

The Department of Transportation on Monday announced new rules that give the traveling public some rights in the event of extended delays. The new rules prohibit U.S. aircraft on domestic routes from remaining on a tarmac for more than three hours with travelers aboard. In addition, once the new rule takes effect, airlines will also be required to provide adequate food and water for passengers within two hours of their plane being delayed on the tarmac, and to maintain operable restrooms and provide medical attention if necessary.

These new Rules will take effect 120 days from the date of its publication in the Federal Register, the publication date is anticipated to be before end of the 2009 calendar year, making the Rules effective approximately June 1, 2010.

There will be some exceptions to the new three-hour rule. For example, the airline can keep passengers on the plane for more than 3 hours for safety and security reasons or if air traffic controllers advise a pilot that returning to the terminal would disrupt airport operations. Likewise, U.S. airlines operating international flights departing from or arriving in the United States “must specify, in advance, their own time limits for deplaning passengers, with the same exceptions applicable.”.

According to the DOT, the new Rules also:

• Prohibit airlines from scheduling “chronically delayed” flights. Those who do may face enforcement action from the department for “unfair and deceptive practices.”
• Require airlines to designate an employee to monitor the effects of flight delays and cancellation, respond “in a timely and substantive fashion” to consumer complaints and give consumers information on where to file complaints.
• Require airlines to display flight delay information on their Web sites for each domestic flight operated.
• Require airlines to adopt customer service plans and monitor compliance.
• Prohibit airlines from retroactively applying material changes that could negatively affect consumers who have already purchased tickets.

In addition to these passenger friendly rule changes, the DOT announced that it plans to “begin another rulemaking process designed to further strengthen protections for air travelers.”

Areas under consideration include requiring airlines to:

• submit contingency plans for lengthy tarmac delays to the DOT for review and approval;
• disclose baggage fees;
• report additional tarmac delay data; and
• strengthen requirements that airline ads disclose the full fare consumers pay for tickets.

In short, Transportation Secretary Ray LaHood commented that “Airline passengers have rights, and these new rules will require airlines to live up to their obligation to treat their customers fairly.”

The airline industry has responded to the new Rules with mixed reviews. Robert Crandall, former chairman and chief executive of American Airlines, who spoke in September at hearings in support of the three-hour limit. Meanwhile, James May, president and CEO of the Air Transport Association, commented, “We will comply with the new rule even though we believe it will lead to unintended consequences — more canceled flights and greater passenger inconvenience.”

Hopefully, you will never encounter a lengthy delay in your travels, but if you do, it is nice to know that in the future you will have some rights to basic needs.