The Nevada Supreme Court upheld a jury’s verdict awarding $30 million against Goodyear Tire & Rubber Co., and the trial judges decision to strike Goodyear’s answer to the lawsuit and its ability to assert its defenses to the allegations in the lawsuit. As a result, the jury was left to consider only the damages to be awarded in a case that involved a rollover accident that allegedly was caused by a tire failure and which resulted in the death of 3 people and in severe injuries to another person.

Judge Sally Loehrer, sanctioned Goodyear after the judge found company attorneys acted in bad faith and engaged in stall tactics. Goodyear’s actions in the case involved providing attorneys for the plaintiffs 74,000 documents that were not labeled or sorted by category, and Goodyear representatives failed to attend their own deposition.

Goodyear argued to the Nevada Supreme Court that Goodyear was entitled to due process rights of an evidentiary hearing to determine how severe and how much damage the delays caused. The Court ruled that the trial judge can impose severe sanctions without a hearing if the sanction is “non-case concluding.”

Justice Kris Pickering, dissented in the opinion, calling the ruling a civil death penalty. However, the majority of the Court noted the Nevada Rules of Civil Procedure and state case law clearly allow a judge to “strike a party’s pleadings if that party fails to obey a discovery order or fails to attend his or her own deposition,” which is precisely what Loehrer determined Goodyear had done.

Without a doubt, one of the least favorite things judges do in cases is having to rule on discovery disputes between parties. Although there are clearly times when the parties and the lawsyers have good faith disputes about what information can and cannot be requested and what information should or should not be disclosed, too often, discovery disputes have become part of the litigation game. Sometimes, parties or lawyers are trying to resist turning over information that may be damaging to the case, while other times, a party or lawyer may be seeking information to which it is clearly not entitled. In any event, often these games are seen as an effort to try to prevent a trial based upon the true merits of the case. As a result, judges have the ability to sanction the lawyers and the parties they believe are not obeying the rules of civil procedure, particularly if judges feel the conduct is egregious.

If this case had been decided in Texas, it is likely that a different result would have been reached. In Texas, when a court decides to issue sanctions in a case as a result of discovery abuse similar to what was involved in the Goodyear case, the Texas Supreme Court has declared that the Court must go through a specific analysis of the conduct at issue, and the harm. In Transamerican v. Powell, 811 S.W.2d 913 (Tex. 1993) the Texas Supreme Court required trial judges issuing discovery sanctions to conduct a hearing on the record, and before sanctions can be assessed, the court must find:

(1) a direct relationship must exist between offensive conduct and the sanction imposed, which means the sanction must be directed against abuse and toward remedying prejudice caused to the innocent party, and that the trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or the party only, or both, and second the sanction must not be excessive.

(2) The Court must consider the availability of less stringent sanctions and whether lesser sanctions would fully promote compliance. In conducting this analysis, the Court should consider whether there is evidence that the offensive conduct was committed in flagrant bad faith or callous disregard of the rules of civil procedure by a party or counsel and whether such conduct may have precluded a trial on the merits.

As the Texas Supreme Court wrote in Smith v. Southwest Feed Yards, 835 SW2d 89 (Tex. 1992), in our system of justice, discovery plays a vital role to assure “that disputes [are] decided by what the facts reveal, not by what facts are concealed.” Jampole v. Touchy 673 S.W.2d 569, 573 (Tex. 1984). A trial should be based upon the merits of the parties’ claims and defenses rather than on a advantage obtained by one side through a surprise attack. In fact, the salutary purpose of Rule 215.5 is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush. See Clark v. Trailways, Inc., 774 S.W.2d 644, 646 (Tex. 1989).

In Texas, it is very rare for a judge to strike portions of pleading to prevent parties from presenting a defense unless the conduct is clearly in bad faith or in violation of a previous court order.


The Supreme Court of the United States of America has ruled in the case of Berghuis v. Thompkins that criminal suspects must explicitly and unambiguously tell police they want to invoke their right to remain silent. We have all heard the Miranda warning on police shows and movies. It is the first warning that is given to a suspect once the suspect is placed in custody.

In 1966, the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and and questioning in connection with charges of rape and kidnapping. Interestingly, Miranda was subsequently retried, found guilty and sentenced to 20-30 years even with the Court having thrown out his statements that were obtained during the questioning by police.

The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, a basic Miranda warning has become standardized so that police know that the suspect has been properly advised of his or her rights. The typical Miranda warning is as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

The right to remain silent and a right to a lawyer are the first part of the Miranda rights warnings, and are considered to be the most fundamental parts of the rights persons have under our Constitution against self-incrimination. But the 9 Supreme Court Justices ruled in this 5-4 split decision that suspects must tell police they are going to remain silent and must tell the police to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins was arrested for murder, and remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

During a three hour interrogation of Thompkins, officers acknowledged that Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”

Justice Anthony Kennedy, wrote that Thompkins’ decision to remain silent through most of the interrogation was not enough to invoke his right to remain silent. “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent, saying the majority’s decision “turns Miranda upside down.” “Criminal suspects must now unambiguously invoke their right to remain silent – which counter-intuitively, requires them to speak,” she said. More interestingly, Justice Sotomayor pointed out that unlike most constitutional rights which are strictly protected absent a clear and affirmative waiver of the right, as a result of this decision, the law will presume that all suspects have chosen to waive his or constitutional rights in the absence of a clear and unambiguous statement of an intent not to waive that right. Justice Sotomayor commented, “…suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

Obviously, we hope that no one ever finds themselves in a situation where they are being wrongful accused of committing a crime and being interrogated by the police, and being forced to consider whether or not to invoke the right to remain silent. However, this case has much broader implications than just the constitutional rights of a single American to remain silent when being questioned by police. For example, last month, President Obama indicated that he has asked the Department of Justice to research ways to try to peal back some of the constitutional protections given to individuals (both American citizens and international suspects) during police interrogations to better enable law enforcement agencies to investigate and to prevent terrorism. In particular, the administration is considering ways to avoid the requirement of giving Miranda warnings to terrorism suspects. However, our constitution does not currently currently make distinctions in the constitutional rights of suspects have depending upon the nature of the charges being investigated or pursued.


How private are the emails you send from a company computer. The answer should scare you if you think the email you are sending from work is private. The New Jersey’s Supreme Court has ruled an employer was wrong in retrieving e-mails between a former employee and her attorney, even though they were sent from a company computer.

The unanimous decision published in Stengart v. Loving Care Agency is believed to be the first of its kind to reach a state Supreme Court. While the Court’s ruling makes it clear that just because a person is using a company computer doesn’t mean they leave all their rights to privacy at the door, don’t be so sure that the next email you send on a company computer or a company email account will be private.

Marina Stengart filed a lawsuit in 2008 against her employer, Loving Care, a northern New Jersey company that provides home-care nursing and health services, claiming discrimination based on gender, religion and national origin. Before Stengart left the company, she exchanged several e-mail messages with her attorney from a company-provided computer, but from her personal email account through The account was password-protected

Loving Care hired computer experts to retrieve the private emails between Stengart and her attorneys and then used those emails in preparing to defend the lawsuit Stengart filed against Loving Care. In court, the attorneys for Loving Care cited the statements in the company’s employee manual which states that e-mail communications “are not to be considered private or personal to any individual employee” and that Loving Care reserved the right to “review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time.”

The trial judge sided with the employer, but the Court of Appeals reversed the trial court’s decision and ordered the company to turn over all copies of the e-mails and to delete any record of them. In affirming the appellate decision, Supreme Court Chief Justice Stuart Rabner wrote that while a company has a right to establish policies governing computer use – and to discipline employees who violate them – even a stated policy that an employer could read an employee’s attorney-client communications would be unenforceable. “Employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy,” This decision provides some limitations on the rights of the company to access and to review and to act upon emails sent by its employees. But if the emails at stake were not private emails with her attorney, the Court would likely have not protected the employee, and the company could very well have take disciplinary action against the employee without ever informing the employee of the reasons for its decision.

Attorney Peter Frazza, representing Stengart, said the ruling preserved the sanctity of the attorney-client privilege. “When people come to lawyers, they have to know they can speak honestly and candidly with them,” he said. The Supreme Court found that even though Loving Care’s attorneys didn’t illegally hack into Stengart’s computer account, they violated rules of professional conduct by reading the e-mails and not promptly notifying Stengart and her attorney. A lower court will decide what penalties the law firm could face, which include monetary sanctions and possible disqualification from the case.

Even though the employee eventually won in this case, the real message in this case is clear.

If you want to keep your emails private, use your own personal computer and a private email account, not an account that your employer provides. In this case, the employee eventually won, but in reality she lost a lot. Her opponent was able to retrieve access to her private emails and to disclose those to her previous employer that she was suing.

Employees need to understand that emails they send may not be as private as they believe.

Everyone should protect their email accounts and computers with a password as this is an objective indicator that the emails are intended to be kept private.

Employees should not use any company supplied computer or company email accounts to send private emails.

Employees should not even send private emails on a company computer through private email accounts as those are likely to be read by an employer.

Even though the Court eventually sided in her favor, Ms. Stengart’s private communications were eventually declared to be private because they were a uniquely private communication, a communication with her lawyers. It is very likely that the Court would have reached a different result if the emails at issue were emails to a friend.

It will be interesting to follow this case as it continues on and to see what type of disciplinary action is taken against the company’s attorneys for obtaining the emails, using them against the employee and for not immediately disclosing this information as our legal system is designed to prevent that type of behavior by attorneys.

If you value your private communications, take the time to send your emails and text messages from your own privately owned computers and email accounts.

Montes Law Group, P.C.

Attorney: Rachel Montes

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401

The Fight to Keep Your Constitutional Right to a Jury Trial | Dallas, Texas Personal Injury Attorney Blog

A recent opinion from the United States Supreme Court’s in Ashcroft v. Iqbal, 556 US ____ (2009) is dramatically changing our legal system and how Courts view the right to your day in court and the right to a jury trial. The opinion even drew criticism from one of the more conservative justices of the United States Supreme Court. Supreme Court Justice Ruth Bader Ginsberg told a group of Federal Judges that the decision in the Iqbal case was both “important and dangerous.” “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

The Iqbal decision is a case that concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man who was swept up on immigration charges and detained could not sue two Bush administration officials for what he said was the terrible abuse he suffered while in detention. In Iqbal, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

For more than half a century, it has been well established that in federal cases a plaintiff must file a lawsuit that provides “a short and plain statement of the claim” to put the Defendant on fair notice of the claims and facts involved in the case. The parties would then engage in discovery that would enable the parties to discover the truth behind those facts and claims to see if the case had merit. After the parties engaged in discovery, there are procedures available that enable a Defendant to request the Court to dismiss the case claiming that the case has no merit. The discovery process is very important to parties because we all know that most defendants do not admit that they did something wrong or publicize their negligent conduct when someone is injured. To the contrary, defendants do their best to try to keep information about their improper or illegal activities a secret.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset before they have had an opportunity to investigate the facts thoroughly to even uncover truthful information that has been hidden which would show the defendant is liable to the Plaintiff. As a result of the Iqbal decision, federal judges are being instructed to dismiss lawsuits as implausible. Courts have already begun dismissing lawsuit citing the Iqbal decision that the cases are implausible. One federal judge dismissed a disability discrimination suit. Another federal appeals court dismissed a breach of contract and securities fraud suit. In a federal case that was filed by members of the Duke University lacrosse team that wear falsely accused of raping a woman, and were not only later proven innocent but also resulted in disciplinary action against the prosecutor for his wrongful conduct in prosecuting the defendants, a federal judge has asked for briefing on whether their lawsuit can pass muster under Iqbal. Clearly, this decision is going to radically change the legal landscape for many parties.

As a result of the Iqbal decision, a party can lose the right to a jury trial and his day in court because a judge does not have like the lawsuit even if the party has not been given the chance to prove that his case has merit. This decision puts a lot of power in the hands of one person, and can directly eliminate a fundamental right of all Americans to a trial by jury. Thus, it is not surprising that this change in federal law is considered to be both “important and dangerous” by Justice Ginsberg.

Most legal scholars concede that one of the biggest legal battlegrounds over the past 10 years has been the battle of corporate America to eliminate the constitutional right to a jury trial. More and more, corporations are forcing employees to sign agreements that they will arbitrate all employment disputes. In addition, corporations that enter into contracts with their customers are increasing adding language to those contracts at the suggestion of their attorneys and insurance companies that try to force legal disputes to be arbitrated instead of being tried before a jury because of fears that juries will treat the parties fairly.

Most Americans understand that the right to a jury trial and the right to have your day in court is an important right. It is not only important, but it is a fundamental right that is guaranteed under the Constitution. Under the Federal Constitution, the right to a jury trial is a fundamental right. It was significant enough to the Founding Fathers of our country that the right to a jury trial is mentioned in two of the amendments of the Bill of Rights. Under the Sixth Amendment, the Constitution guarantees all Americans:

  • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under the Seventh Amendment, the United States Constitution guarantees every American:

  • In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

In addition to the protections under Federal law, Texas has also enacted a State Constitution which also provides that “The right of trial by jury shall remain inviolate.” In addition, the Texas Constitution acknowledges the necessity of the right to have your day in court which is directly linked to the concept of the right to a jury trial. Specifically, the Texas Constitution provides that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

Nevertheless, if you turn on your radio or watch some of the political shows on TV, you will no doubt hear the cry that someone should not have the right to file a lawsuit or cries against runaway juries. However, those same pundits rarely talk about surveys from judges that say the idea of a runaway jury is a myth. The United States Department of Justice conducted a study which concluded that the fears of a runaway jury were unjustified. Attached is a copy of a summary of the study. In addition, you can read the Department of Justice study by going to the following link. (Article no longer available online).

A survey of Texas judges further confirms that the fears of runaway juries and fears that juries award large amounts for damages that are not supported by the evidence is simply not true. Among the findings of the study are:

  • More than 83 percent of the Texas district court judges had never observed a single instance of a “runaway” jury verdict on either actual or exemplary damages during the preceding four years.
  • More than 85 percent of judges had not, or had in only one instance, granted relief during the past four years due to an excessive award of actual damages. No judge in the entire sampling had granted such relief during the prior four years in more than three cases.
  • More than 83 percent of Texas judges had not witnessed a single jury award compensatory damages that were too high.
  • 15 percent of Texas trial judges observed that juries do not award punitive damages even when those judges believed such an award was warranted.
  • 44 percent of the judges had not personally observed a single frivolous lawsuit in their courtroom during the prior four years.
  • 99 percent had observed no more than between 1 percent to 25 percent (the lowest percentage category available) of the cases filed before them as being frivolous.
  • 85 percent of the responding judges had not punished a lawyer for violating the courts’ rules more than one time during the previous four years.
  • More than 86 percent of the responding judges believed there is no need for further legislation addressing frivolous lawsuits.

Please continue to monitor the Montes Herald Law Group, LLP blog for updates on new laws and court rulings that have a direct impact on the citizens of Texas. Montes Herald Law Group, LLP is located in Irving (Las Colinas), Texas. View our website at and our blog to find out more about our attorneys and the cases we handle.

Supreme Court Declares Drug Manufacturers Are Not Immune From State Lawsuits | Dallas, Texas Personal Injury Attorney Blog

Imagine that you or your loved one takes prescription medication that you later find out is responsible for the devastating side effects you have been suffering from, and that the manufacturer knew about but failed to disclose not only to you, but to your doctors, and possibly even the FDA during the course of trying to get approval for the drug.

Consider the case of Diane Levine. In April of 2000, Diana Levine went to a clinic for treatment of a severe migraine headache and associated nausea. She was originally treated with intramuscular injections of Demerol (for headache) and Wyeth’s drug, Phenergan (for nausea). Intramuscular injection was the preferred method for administering Phenergan identified in the product’s labeling. Following Levine’s treatment, she developed the symptoms of arterial exposure and gangrene, and was forced to undergo amputation of her forearm. Levine sued Wyeth (the drug manufacturer) in state court in Vermont, pleading state law claims for inadequate warning, and argued that Wyeth should have warned of the contraindicated intravenous injection of Phenergan on the drug’s label, and should have forbid that method of administration. Wyeth argued that the FDA was aware of this issue, but never required such a contraindication warning, and that Wyeth used only the language the FDA had approved. Thus, the issue is not whether the drug manufacturer was aware of this potential risk and complication, but whether it should warn about that risk or simply warn of those matters required to be disclosed by the FDA.

The Supreme Court has in the Wyeth v. Levine case that drug manufacturers are not necessarily entitled to this protection of pre-emption. The Court stated:

State tort suits uncover unknown drug hazards and pro-vide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come for-ward with information.

Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

We conclude that it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed.

For years, the FDA took the approach that lawsuits against these drug manufacturers were extremely helpful in discovering and encouraging drug manufacturers to remove dangerous drugs from the market, and that these lawsuits were helpful to the FDA in carrying out its mission in protecting the public. At Montes Herald Law Group, L.L.P., we believe drug manufacturers should be held accountable for the products they design, and distribute and for the warnings that need to be given for their product so that doctors and patients can make informed medical decisions about whether or not to prescribe or to take a drug. Over the past few years, drug manufacturers have been increasingly claiming that if the FDA approves a drug, that the manufacturer of the drug cannot be sued in state courts because of a legal concept known as “pre-emption.” In short, these drug manufacturers claim that federal law exclusively governs their practice, and therefore they should only have to meet minimum federal standards and should not be held accountable under state law for the harm their drugs do to people even if knew about the side effect and failed to warn of those dangers. At Montes Herald Law Group, L.L.P., we believe that the FDA was correct that these lawsuits against these giant drug manufacturers are beneficial not only to compensate individuals for the injuries they have sustained, but that these lawsuits also serve an important role in our society to ensure that manufacturers are held accountable to develop and to distribute safe products.