Ohio Man Avoids DUI by Exclusion of "Horizontal Gaze" Test

A Cincinnati, Ohio man facing a felony charge of Driving Under the Influence (DUI) avoided jail time, steep fines, forfeiture of his driver license and his vehicle with the help of National Trial Lawyers Top 100 attorney Robert Healey of the law firm Suhre & Associates in Dayton.

According to Healey, an officer pulled over the suspect in January 2013 for going left of center in a passing zone, but pulling back too late after the passing zone ended.  The suspect stopped his vehicle in a private drive on a very steep hill.  The officer said he could smell a faint odor of alcohol.  When asked for his license, the suspect pulled out a gold credit card from his wallet instead.  He then gave the officer his driver license.

The suspect, who had five previous convictions on DUI charges, refused a Breathalyzer test.  The officer did not require the suspect to perform field sobriety tests such as walking and turning, and standing on one leg because of the steep grade.  He then performed a horizontal gaze nystagmus (HGN) test on the suspect.  Healey says, “The officer observed a lack of smooth pursuit and ‘slight’ nystagmus at maximum deviation.  The National Highway Traffic Safety Administration (NHTSA) manual on standardized field sobriety testing says that all people will exhibit slight nystagmus at maximum deviation.  The clue is observed when the nystagmus is observed for more than four seconds.”

The officer then searched the vehicle and found a cup containing brown liquid and ice.  Healey says the officer “determined it was an alcoholic drink, but poured out the contents.”  The officer then arrested the suspect and charged him with 4th degree felony DUI and refusing a breath test.  Healey says both charges could have added up to an additional five years in prison if the suspect had been convicted.

According to Healey, “The DUI in this case carried 120 days up to one year with an optional 6 months to 30 months in prison.  The fine ranged from $1,350 to $10,500.  (The suspect's) license could have been suspended for 3 years to life.  His vehicle could have been subject to forfeiture to the state upon conviction.”

Healey filed a motion in limine to exclude the HGN test, which he says was granted in part.  He adds, “The officer was allowed to testify about the test he did and the observations he made.  He was not allowed to testify about any statistical probabilities about what the defendant’s actual breath result might have been or whether it was over the legal limit.”

The case went to trial in October 2013 before Warren County Judge Robert W. Peeler.  After a one-day jury trial, the suspect was found not guilty on all counts.

Former St. Louis Police Officer Awarded $7.5M in Sexual Harassment, Retaliation Case

A St. Louis jury has awarded $7.5 million to a former police officer claiming she was sexually harassed and retaliated against by her supervisor.  The National Trial Lawyers Top 100 attorney John Eccher represented the plaintiff, Tanisha Ross-Paige, and described the verdict as “absolutely huge for this kind of case.”

Ross-Paige claimed that her former supervisor, Sgt. Steven Gori, created and distributed a “wanted” poster with a photo of her and comments such as “subject wanted for having the baddest body in the St. Louis area,” and “use extreme caution when approaching this subject.  Approach this subject from behind for your own safety.”  Ross-Paige also said that Gori invited her to skinny dip in his hot tub, asked her to sit on his lap, and to remove her bullet-resistant vest so he could get a better view of her body.  Eccher said Gori denied the accusations.

After Ross-Paige filed a complaint about Gori’s behavior, Gori and then-Lt. Michael Deeba assigned her to unfavorable shifts, changed her performance reviews, and denied her time off for training, according to the lawsuit.  Deeba also reportedly told others that Ross-Paige’s complaint was frivolous and he wanted her transferred.

The jury found in favor of the St. Louis Board of Police Commissioners on a discrimination claim, but awarded Ross-Paige $300,000 in compensatory damages and $7.2 million in punitive damages.  Another lawyer representing Ross-Paige, Ryan Paulus, said the verdict may be the highest in Missouri history for this kind of case, although he cautioned that it could be reduced to approximately $3 million under state law.  Attorneys said the legal maximum could be increased if the Board of Police Commissioners appeals the verdict.  Eccher said he believes the jury returned a large verdict on punitive damages because attorneys repeatedly caught police officers lying while testifying.

Ross-Paige’s attorneys said they offered to settle the case for either $250,000 or $100,000 plus the approval of her disability claim.  They said attorneys for the police board offered no more than $80,000.

Video: President Obama Hosts a Screening of New Film "Cesar Chavez: An American Hero"

President Obama praised Cesar Chavez and a new movie celebrating him during a White House Screening of "Cesar Chavez: An American Hero."

"We are here to celebrate the life of an American hero.  Cesar Chavez was a man who devoted this brief time that we have on Earth to making sure that this country lived up to some of its lofty ideals, the words of our founding, the idea that all of us are created equal -- a man who organized others to widen the circle of opportunity not just for the people he knew, but for future generations," the President said.

"This movie, this film tells the story of a man guided by an enormous faith -- faith in a righteous cause and a loving God, and the dignity of every human being.  And it reminds us how throughout our history that faith has been tested, and that it falls to ordinary Americans, ordinary people, to fight and restore that faith."

"Cesar himself said that he spent his first 20 years working as an organizer without a single major victory.  But he never gave up.  He kept on going, and the world is a better place because he did.  And that’s one of the great lessons of his life. You don’t give up the fight no matter how long it takes.  No matter how long the odds, you keep going, fueled by a simple creed -- sí, se puede."

Cesar Chavez is the father of The National Trial Lawyers Top 100 member Fernando Chavez.  The motion picture is scheduled to appear in theaters March 28, 2014 and you can see the official trailer below.

New York Lead Paint Victim Awarded $11 Million

A Kings County, New York jury awarded $11 million in November 2013 to a young man who was exposed to lead paint as an infant while living in a rental home.  Lameek James was classified as learning disabled, and eventually dropped out of school at the age of 17.  The jury found that H.P. Greenfield Real Estate, LTD, the manager of the property, was liable for James’ lead poisoning.

At the age of seven months, James was diagnosed with a blood lead level of 14.1 in November 1994.  According to the Centers for Disease Control, “Experts now use a reference level of 5 micrograms per deciliter to identify children with blood lead levels that are much higher than most children’s levels. “

Defense attorneys argued that a previous owner should be held responsible for James’ lead poisoning, but plaintiff attorney Thomas Giuffra countered that the New York Department of Health did not issue any lead violations when the property was in the hands of the previous owner.  According to testimony, the property where James lived was foreclosed in June 1995, and OCI of Austin, Texas became the owner.  OCI entered into a Master Listing Agreement with H.P. Greenfield, which specified that Greenfield was in exclusive control of the management of the property, and would be responsible for any lead paint conditions at the property.

James continued to have elevated levels of lead in his blood while H.P. Greenfield managed the property, and his family moved out about eight months after Greenfield took over.  After going to school, James was placed in special education classes and had to repeat several grades.  School records showed that he consistently failed to meet grade level standards.   James testified that he dropped out of school because of his learning difficulty, and because he was bullied because he was “slow.”

After three hours of deliberations, the jury found in favor of the plaintiff.  H.P. Greenfield was responsible for James’ damages, including:

The case is Lameek James and Lynisha Ferguson v. H.P. Greenfield Real Estate, LTD.  The case was tried in Supreme Court, Kings County, with the Hon. Bernard Graham, J.S.C. presiding, Index #: 15722/2008

Plaintiff’s attorney was National Trial Lawyers Top 100 member Thomas Giuffra of Rheingold, Valet, Rheingold, McCartney & Giuffra, LLP of New York, NY.  The defense attorney was Paul Bottari of Wilson, Elser, Moskowitz, Edelman and Dicker, LLP of New York, NY.


Reasonable Doubt Clears Chicago Man Accused of Heroin Distribution Charges

A Chicago criminal defense attorney who didn’t put on a defense was able to clear his client of federal heroin distribution charges based on reasonable doubt last month.  National Trial Lawyers Top 100 member Michael Leonard says federal prosecutors relied on weak evidence even though an undercover officer who bought the drugs was wired for sound and video.

Leonard says a federal jury found Harvey Davis not guilty on February 27, and Davis avoided a likely sentence of 16 to 18 years in prison.  Davis was accused of selling heroin to an undercover officer working with an FBI task force.  The US Attorney’s office put the undercover officer on the witness stand during the trial, and the witness testified that he bought the drugs from an individual driving a blue Ford Taurus.  While the undercover officer was wearing a hidden camera and a microphone, he didn’t get any useable video of the person who sold him the heroin, even though the officer was in the passenger seat just a few feet from the seller, according to Leonard.

After the drug deal, the undercover officer described the seller in what Leonard describes as “extraordinarily generic” terms: male, black, mid-20s, light build, possibly wearing a blue/grey shirt.  Two days later, the undercover officer identified Davis as the driver of the Taurus who sold him the drugs based on a driver license photo of the person to whom the car was registered.

Federal prosecutors also called an FBI agent who testified that she listened to the audio of the transaction, and then interviewed Davis after he voluntarily agreed.  The agent testified that the voice on the recording belonged to Davis.

Leonard says that instead of putting on a defense, he relied on reasonable doubt to clear his client.  He says the keys were the generic description of the seller provided by the undercover agent along with “very conclusory testimony from the FBI agent who listened to the audio and claimed to match it.”  Leonard also argued that prosecutors were unable to present any evidence that his client ever drove or accessed the car other than on that one date.  He also relied on the main chase agent’s testimony that drug dealers/operators often use someone else’s cars.

The case is United States v. Harvey Davis, 13 CR 00407 (Judge Grady).  The trial was held in the US District Court for the Northern District of Illinois.


Houston Family Awarded $11 Million in Fatal Truck Collision Case

A jury in Harris County, Texas has awarded $11 million to the family of a man killed when his vehicle collided with an overturned commercial truck.  According to attorneys, Dan Rhodes was killed when the vehicle he was driving crashed into the overturned truck on a two-lane east Texas highway on October 26, 2011.  The owners of the truck, X-Chem and NCH Corp. were found negligent in their responsibilities and supervision of the unidentified truck driver, who was not in compliance for both internal and Department of Transportation training.

Rhodes owned a sawmill and was also a minister in Nacogdoches, Texas.  He is survived by his wife of 33 years, as well as a son and daughter.

According to testimony, it wasn’t the first time the truck driver had overturned a commercial truck, although no one was killed or injured in the earlier accident.

Attorneys Steven Kherkher and Jim Hart from the Williams Kherkher Hart Boundas, LLP law firm represented the victim’s family.  “This was such a tragedy,” said Jim Hart, “and we were able to effectively focus the jury on the facts. The actions and inactions of X-Chem and NCH took the life of a great man and fantastic family man.”  “This jury showed a lot of courage, and made a well thought out decision,” said Steve Kherkher. “They were able to put themselves at the scene, and were able to empathize with the family of Mr. Rhodes.”  Rhodes’ widow, Jan, expressed her gratitude to the attorneys.  She said, “They did a great job trying the case – my husband would be proud.”

The case was tried in front of Judge Mike Miller of the 11th District Court in Harris Co., TX, Cause No. 2012-23019, Rhodes v. X-Chem and NCH Corporation.


Federal Class Action Lawsuit Filed Against California City and its Police Officials

Attorneys Fernando F. Chavez and Blanca E. Zarazúa filed a class action lawsuit on March 10, 2014, in US District Court on behalf of Hispanic residents living in the King City, CA, area.

Six King City police officers and one civilian were arrested on February 25, 2014, for allegedly targeting low income Hispanic people by ordering their vehicles towed and then keeping the cars when the owners could not pay the impound fees. The police officers allegedly kept the cars for themselves or sold them for money.

“It is an outrage that law enforcement officials who are supposed to protect people would plan to take advantage of these innocent Latino residents, knowing it would be difficult or impossible to pay the fees to retrieve their car,” said Chavez, an attorney with The Chavez Law Firm and son of the late Cesar E. Chavez.

The class action was filed after several community members were interviewed and troubling facts were disclosed.  “This lawsuit provides at least some relief for the many residents of King City who were subject to serious civil rights violations,” said Attorney Blanca E. Zarazúa, Honorary Consul for Mexico in Monterey and Santa Cruz Counties.

There will be a press conference on March 13, 2014, in King City, California.

Media Contact: lanceswanner@chavezlawgroup.com.

Fernando F. Chavez is the son of late labor leader and civil rights activist Cesar E. Chavez.  Mr. Chavez continues to carry on his father’s legacy of speaking for those with no voice.

Blanca E. Zarazúa is the daughter of a Bracero or guest worker.  She also serves as Honorary Consul for Mexico in Monterey and Santa Cruz Counties.

Tennessee Court Revives Verdict for CSX Worker who Died of Lung Cancer

After three years of legal wrangling, the tide of justice is finally turning back in favor of the now-deceased CSX railroad switchman in a case against the railroad. The estate of Winston Payne, a former CSX switchman who lost his life to lung cancer, obtained an $8.6 million verdict from a Knoxville, Tennessee, jury in 2010. Later, the trial judge granted CSX a new trial. However, before the second trial, a Knoxville Circuit Court judge dismissed the case entirely.

The Tennessee Court of Appeals decided that the estate Mr. Payne should now receive the original jury verdict, unless the trial judge now determines that the verdict is contrary to the evidence presented.

Mr. Payne worked for CSX, a rail, shipping and trucking company, for 40 years. During his career with CSX from 1962 to 2002, he was exposed to asbestos, diesel exhaust fumes, and radiation, including enriched uranium and plutonium. In 2005, he was diagnosed with lung cancer and had to endure 43 rounds of chemotherapy and 44 radiation treatments.

Payne sued CSX in 2007 under the Federal Employers’ Liability Act (FELA), after being diagnosed with lung cancer in 2005.  Payne died in February 2010, and his wife Anne was substituted as plaintiff before the trial in November of that year.

Following a ten-day trial, the jury returned a verdict that “adequate compensation” for Payne’s injures was $8.6 million, although it said Payne’s smoking was responsible for 62% of the damage.  According to court documents, Payne started smoking the same year he was hired at CSX in 1962, and smoked about a pack a day until he quit the habit in 1988.

After the jury returned its verdict in favor of Payne, the judge then instructed the jury that because CSX violated FELA safety regulations, the plaintiff should recover 100% of the damages, and sent the jury back for further deliberations.  The jury then returned an amended verdict of $3.2 million at 100%.

Six months later, CSX was granted a new trial before a different judge, who dismissed the case and ruled that the testimony of all the plaintiff expert witnesses was inadmissible.  However in late December 2013, the Tennessee Court of Appeals in Knoxville revived the case and ruled that the jury in the first trial had returned a verdict that was “complete, consistent and based on the instructions earlier provided to it by the trial court.”  The appeals court sent the case back to the first judge to determine whether to grant the first amount of $8.6 million or the second verdict of $3.2 million.  No decision regarding the jury award has been announced.

Plaintiff attorneys are National Trial Lawyers Top 100 attorneys Richard Shapiro of Shapiro, Cooper, Lewis & Appleton in Virginia Beach, Virginia and Sidney Gilreath of Gilreath & Associates of Knoxville, Tennessee.  Cary Bauer of Gilreath & Associates also worked on behalf of the plaintiff.

The case is Anne Payne v. CSX Transportation, Inc.  Appeal from the Circuit Court for Knox County No. 2-231-07, Harold Wimberly, Judge.  The Court of Appeals ruling is No. E2012-02392-COA-R3-CV.

Daughter’s Facebook Overshare Costs Father $80,000

Talk about oversharing too much information: a daughter’s Facebook boast about the settlement of an age discrimination lawsuit has cost her father $80,000.  When Patrick Snay, 69, was let go as the headmaster of Gulliver Preparatory School in Miami, he filed an age discrimination and retaliation lawsuit, which was settled for $80,000 in November 2011.  The settlement agreement contained a standard confidentiality clause preventing either party from talking about the terms.

Unfortunately, Snay told his teenage daughter Dana about the agreement, which included $10,000 in back pay, $60,000 for attorney’s fees, and the $80,000 settlement.  Snay told the Miami Herald that he felt obligated to explain it to his daughter because she suffered from “psychological scars” from peers at the school.  Dana, in turn, bragged about the settlement on Facebook to her 1,200 friends, many of whom attended Gulliver.  According to court documents, the post read: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”  The post reached the school’s lawyers at the speed of social media, and on November 7, 2011, four days after reaching the deal, the attorneys told Snay they wouldn’t pay him.  Snay filed a motion to enforce the settlement on June 9, 2012, which he won, but the school won an appeal on February 26, 2014.

Snay says he never told Dana that he’d “won” the case, and that she didn’t go to Europe that summer.  “This, however, does not change our analysis,” wrote State of Florida Third District Court of Appeal Judge Linda Ann Wells in the order granting the appeal.  Judge Wells added, “Rather, before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do.”

The case is Gulliver Schools, Inc., a Florida corporation, and School Management Systems, Inc., a Florida corporation, appellants, vs. Patrick Snay, appellee, No. 3D13-1952, Lower Tribunal No. 10-62368.   Scott A. Cole and Kristen A. Tajak of Cole, Scott & Kissane were attorneys for the appellants.  Jonathan M. Streisfield, David L. Ferguson and Scott J. Weiselberg, of Kopelowitz Ostrow Ferguson Weiselberg Keechl were attorneys for Snay, the appellee.

Jury Awards Texas Nurse $4 Million after Colliding with U-Turning Semi

A Texas jury awarded a registered nurse nearly $4 million in damages after she was injured when her car collided with an 18-wheeler doing a U-turn.

Brandi Williams, age 32, was driving her Lincoln Navigator in the southbound lane of U.S. Highway 259 in Morris County, Texas on April 4, 2011.  Ahead of her on the right shoulder was a tractor-trailer being driven by Tillerd Ardean Smith.  According to testimony, Smith attempted a U-turn across the southbound lane, and Williams’ SUV crashed into the front of the tractor.

Williams was treated for headache, neck pain and left knee pain at a nearby emergency room, then released.  Two days later, she sought chiropractic treatment.  Williams underwent MRIs of her brain and spine, which were unremarkable or normal.  Williams’ chiropractor referred her for pain management, which failed to find the source of her constant pain. She then sought a second pain management opinion and underwent injections of anesthetics in her neck and radiofrequency nerve stimulation, which provided significant relief.   Williams then underwent more radical lumbar discography injections and use of biological disc sealant at L4-5, which failed to relieve her lower back pain.

Williams sued the truck driver, Medallion Transport & Logistics, LLC and Rushing Transport Services, Inc.  for her injuries. Defense attorneys argued Williams was speeding at the time of the accident and took faulty evasive action.  They also claimed that Williams’ alleged injuries were subjective and could not be supported by objective findings, and that she was motivated by secondary gain.

After a four-day trial in Harrison County District Court before Judge Brad Morin, the jury deliberated for four hours before returning a verdict of $3,990,254.58 for Williams on December 19, 2013.  Her attorneys, National Trial Lawyers Top 100 attorney Brent Goudarzi, Marty Young and Geoffrey Hoover of Goudarzi & Young in Gilmer, Texas, had sought $2 million in damages.  The defense offered $350,000 to settle.  Attorneys for the defense were Wade Reese of Tucker, Taunton, Snyder & Slade of Houston and G.R. Randy Akin of Longview, Texas.

The case is Brandi Williams v. Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, and Tomy Rushing d/b/a Rushing Transport Services, Inc.  Cause No. 12-0889 in the 71st Judicial District Court of Harrison County, Texas.

Truck Driver Injured by Falling Rail Wins $2.6 Million Settlement

A 54-year-old Nebraska truck driver injured when an electromagnet on a crane dropped a railroad rail on him has won a settlement of $2,650,000.  The settlement was reached October 30, 2013 in a lawsuit against Crane Services Company.

According to National Trial Lawyers Top 100 attorney James Fitzgerald of Cheyenne, Wyoming, the truck driver, who prefers not to be identified, was picking up a load of scrap rail at a rail yard in Alliance, Nebraska on January 17, 2012.  Fitzgerald says the crane’s magnet that was lifting the scrap rail had not been repaired properly, and released its load onto the victim, who was helping guide the scrap onto his trailer.

Defense attorneys argued that the truck driver, who held several million-mile safety awards, should not have been in the load’s path.  The accident left the plaintiff with an “open book” pelvic fracture, along with several other severe injuries, according to Fitzgerald.  He adds that while the victim is now ambulatory, he won’t be able to drive a truck again.

Fitzgerald worked with fellow National Trial Lawyers Top 100 attorneys Peter J. Kestner and Gregory N. McEwen of McEwen & Kestner, PLLC, Inver Grove Heights, Minnesota.  Attorneys with the firm Murphy & Decker in Denver represented the defendant.

The lawsuit was filed in the U.S. District Court for the District of Colorado because that’s where the defendant company is based.  The case number is 12-CV-2518-RPM.