Ervin Gonzalez Objects to Victor Diaz Chinese Drywall Settlement?

Hmm, there is undoubtedly a huge back story here:

Miami-Dade Circuit Judge Joseph Farina has overruled objections and approved a $1.8 million settlement in a Chinese drywall class action with Homestead homeowners.

Farina approved more than $2.9 million in attorney fees and costs to close the case.

Ervin Gonzalez of Colson Hicks Eidson in Coral Gables tried at a Feb. 4 hearing to scuttle the settlement on behalf of 29 of the 79 members in the suit between Keys Gate homeowners and Banner Supply, distributor of the defective drywall.

Farina recognized in the order that many homeowners wanted to opt out of the settlement because personal injury, bodily injury and medical-monitoring claims were never asserted in the complaint.

However, he said the settlement language defined released claims as "any and all causes of action, damages or injuries arising from or related to defective drywall."

This was the exact language used in a separate settlement involving other defendants in the same class action, Farina noted. South Kendall Construction, Palm Isles Holdings and Keys Gate Realty worked out their $6.6 million settlement first, and Farina said the appropriate time to raise an objection on illness claims was at that settlement hearing last July.

"Objecting to this principle now, for the first time, is not timely — particularly when counsel for the objectors was among those attorneys who signed" the initial settlement, Farina stated in the order.

Gonzalez said that while he appreciated the judge's willingness to hear homeowners' concerns, they would appeal.

"We feel it's a matter of great importance that should be decided by a court of higher authority," he said. "We think it's a matter of first impression in the state of Florida."

Farina noted homeowner concerns about bodily injury are prospective and unconfirmed at this time because no scientific proof has been produced showing the tainted drywall causes illness.

The judge did suggest homeowners still have recourse to pursue bodily injury claims. Banner Supply is suing Knauf Plasterboard, the Chinese manufacturer, and homeowners could attach their claims to that suit.

He said health claims also could be made before a New Orleans federal judge presiding over multi-district litigation.

A couple things -- it's pretty unusual to see a release of personal injury claims in a suit for economic injury arising out of property damage.

And of course the Judge is right that class members could assert personal injury claims in other forums, such as in New Orleans, but to do so they would have to opt out of the settlement and therefore not receive any of the benefits for a case that had been only about property damage.

It's also interesting that the Court apparently certified a class -- for settlement purposes only -- that presumably included individual personal injury claims.  I wonder whether those claims were valued in the settlement and, if so, how much?

(That doesn't mean the settlement is not proper btw).

As for lateness, the Judge notes Ervin was a signatory to a prior settlement with other defendants that also included an identical release of personal injury claims.

Now that's where it gets interesting -- perhaps the back story begins right there?

Akerman Thanks Litigation Gods for Chinese Drywall!

It's important to note the litigation requires (at least) two sides, and there has to be something close to a fair fight, or the other side will just find something else to do.

For example, the white-shoe law firms representing former Fannie Mae executives have been feasting at the public trough, billing at least $132 million defending against various shareholder and other lawsuits directed at the bank's allegedly fraudulent business practices.

This is my favorite part of that story:

DeWine cited the deposition of Franklin Raines from April, when the plaintiffs were the only ones asking questions. Although the Fannie Mae defendants had 13 lawyers present, none asked a single question.

DeWine also testified that when the judge has conferences to check on the status of the litigation, Fannie Mae defendants typically bring 35 to 40 attorneys and paralegals, while the plaintiffs normally show up with just three.

Of course!

I'm surprised there were only 13 lawyers at that deposition.

DeWine is obviously not familiar with how I roll when an important client is being deposed -- I have two associates carry my documents, another sets up the laptop, three are passing me post-its during the depo, one is logged into Egotastic, four glare at opposing counsel, and two watch with rapt awe as I utter the only words I will speak during the entire episode:  "object to form."

Ca-ching!

Speaking of greenbacks, Julie Kay and her amazing sources reveal that Akerman is riding the Chinese Drywall train all the way to payday:

“We were pleased with the year, and I think it got progressively better as it went on,” Smulian said.

Litigation work, the firm’s largest single practice area, was up 15 percent. He credited work on consumer finance, Chinese drywall and class action litigation.

Doesn't it suck when one of those big matters goes away?  You always want to be successful, but not too successful.

It's like professional wrestling, but without the overweight men in tights.

(Actually, I take that last part back.)

Chinese Drywall Plaintiffs Testify

So I see that the representative plaintiffs in the Chinese Drywall trial have testified:

"We loved being there,'' said Armin Seifart, who works as senior counsel for Chevron. ``It turned into a nightmare.''

I have to assume Ervin and Victor know what they are doing, but does it strike anyone else as odd that the test plaintiffs they put up are wealthy professionals who purchased a $1.6 million home in Coconut Grove?

The husband is a senior in-house attorney at Chevron, which last I checked is AN OIL COMPANY, and the wife is a clinical psychologist.

These are the best victims to present to a Miami-Dade jury?

(Good thing I don't do this for a living.)

Dramatic Chinese Drywall Confrontation: When Did You Stop Liking The Smell of Farts?

In a dramatic turnaround, Chinese Drywall defendant Banner Supply's controller Scott Giering recanted his fart-embracing deposition testimony on the stand yesterday:

The first witness to take the stand was Banner controller Scott Giering, who had said during a deposition that some people might actually like the smell caused by drywall in some homes -- that of rotten eggs or flatulence.

"I truly regret that statement that some people like that smell or enjoy that smell,'' Giering said. "I would prefer not to live in a house that smells like rotten eggs.''

Under an ENTIRELY FICTIONAL cross-examination, however, Giering's tough anti-fart stand evaporated into the ether, leaving only the faint taint of warmed-over Indian food:

Ervin Gonzalez: Did you or did you not tell me in your deposition that some people like farts?

Scott Giering: Yes, I did. But I have an explanation.

EG: You do? Go ahead and share your "flatulence epiphany" with the jury.

SG: I prayed for guidance, and realized in my heart that farts truly do smell bad.

EG: Oh sure you did.

SG: No, really, my testimony today is the truth. I'm sorry for any confusion.

EG: {Ppwwwwwtttt}

SG: (uncomfortable silence)

EG: (turns rear towards witness and waves hands furiously)

SG: Oh god. Oh oh god. (starts crying) That's lovely, that's truly lovely! My is that aroma amazing.....please one more, oh God oh oh.......

EG: (glances knowingly at jury) I have nothing further, your honor.

Justin Long Must No Longer Appear On My Computer Screen.

It feels a bit slow around here, no?

Sure we have the Chinese Drywall trial and Rothstein's sentencing, but you can feel the lawyers and judges starting to slow down, plan their North Carolina or Colorado summer trips, and ease up on the usual nonsense we see day to day.

Me, I'm heading to LA to put a permanent end to this intertubes hipster phenomenon known as "Justin Long."

(I have a feeling the world won't notice.)

Anyone else have anything interesting to report?

Let's see, this is good news:

President Barack Obama is not only breaking barriers in his appointments to the highest court in the land, he’s quickly reshaping the lower ranks of the federal judiciary, nominating an unprecedented number of minorities and women.

Monday night, the Senate confirmed three of Obama’s judicial picks — all of them women. Among them is Lucy Koh of California, who is slated to become the nation’s first Korean-American district court judge.

Also pending confirmation is Goodwin Liu, who would become the first Taiwanese-American federal appellate court judge — though his nomination is threatened by Republicans who believe he’s too liberal.

Of Obama’s 70 appellate and district court nominees, 44 percent are female and 43 percent are minorities, according to recent analysis by the Alliance for Justice, a liberal advocacy group. By contrast, only 22 percent of President George W. Bush’s 322 confirmed judges were female and less than 18 percent were minorities.

Or is it, says this idiot:

“When you make law representative of America, you are undermining the objective” of a fair and impartial judiciary, said Stephen Presser, professor of legal history at Northwestern University Law School. “What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires.

“When you send a message of inclusiveness, it’s a dangerous move, and it makes the court more political than it needs to be,” Presser added.

Exactly!

I think he's saying all the umpires should be white?

Or they should all be like Jim Joyce?

Oh hail, what Justice Souter says.

Chinese Drywall Defense: Some People Want Their House To Smell Like Farts!

Dear readers, I have let you down.

An alert tipster pointed out a story I missed this morning.

How this escaped my attention is a mystery but I am deeply sorry.

Anyways, here goes:

But in a sworn deposition in May, Banner executive Scott Giering said he wasn't aware of any problem with the Chinese-made drywall his company sold, other than through media reports. When Gonzalez asked him about if he was aware the drywall smelled bad, Giering said that was up for interpretation.

"Some people happen to like rotten egg smells,'' Giering said.

"Smells like flatulence, doesn't it,'' Gonzalez asked, to which Giering replied, "Some people happen to like that.''

Giering continued:

Giering: Yeah, you know like how in your car you let rip a giant fart and turn off the A/C and close your windows and your car becomes a rolling Dutch Oven? What can I say, some people just really dig the smell of farts. Here it's like your whole house is a permanent Dutch Oven fartfest, except all the farts are Chinese! It's great. These homeowners should really be thanking us for this.

[turns to defense counsel]: Ouch! Stop kicking me under the table.

Defense counsel: Is this a good time for a break?

SFL Friday -- Memorial Day Edition!

So if you just must read Judge Farina's recent Chinese Drywall class certification order, I created a Scribd thingy-dingy for your eyes only, right here.

Boy Victor's a good writer!

(I kid, I kid)

Whoa -- Gary Coleman, RIP.

This may not surprise anyone, but I was more upset when we lost Dana Plato.

Alright let's move on to something pleasant, like a nice long All-American three day weekend.

I hope you have something spectacular scheduled.

My plans are fairly conventional -- I intend to commiserate with my Indian brothers, consider what exactly is wrong with Nicholas Cage, and what do I always say -- it does in fact always come back to the Germans.

BTW, there's a reason you can sleep in Monday morning, show up way late at the office for a few hours, bill 9.4 hours, and cut out by two. Try to fit that in if you can, ok?

Have a great Memorial Day weekend!

Chinese Drywall Anyone?

I know you all have forgotten about that mess, but apparently they are doing something up there in New Orleans, something that involves witnesses, jurors, demonstrative exhibits, stupid arguments about admissibility oh what's it called.....it's been a while for some of us civil litigators....oh yeah:

A federal judge in New Orleans on Thursday awarded $2.6 million in damages to seven Virginia families that sued Chinese drywall manufacturer Taishan Gypsum Ltd.

U.S. District Judge Eldon E. Fallon also issued a protocol for fixing homes that calls for the removal and replacement of all drywall, electrical wiring, copper pipes, air conditioning systems, insulation and most appliances.

Cabinets, countertops, trim, crown molding and baseboards also need to be replaced. Families should receive temporary housing for four to six months, Fallon said.

“This tells you what has to be removed and what doesn’t, and he did a very thorough job,” Boca Raton attorney Allison Grant said. “It’s very significant.”

Fallon's ruling gives homeowners in South Florida and elsewhere definitive information about how best to treat the problem.

Congrats and condolences, respectively.

First Contested Chinese Drywall Case Goes to Trial

Checking Overdraft

Well that was a glorious weekend, huh?

But it's back to work as the first contested Chinese Drywall case gets underway in New Orleans:

"This will be the first contested trial," said Steve Herman, an attorney representing the Hernandez family.

That leaves the Hernandez family standing in for the 2,100 others around the country involved in the litigation. Big court cases involving lots of parties often use "test trials" or "bellwether trials" to try to work through the issues without trying every individual case.

While the Hernandez case doesn't have any direct legal influence on the other cases, what the court decides about what needs to be done to fix the Hernandez home and how much it will cost to make those repairs could help establish values that will guide settlement discussions in the rest of the cases.

"Their significance is magnified because there are so many similar cases with common elements," Herman said of test cases. "It's something that facilitates settlement, because it gives the parties and the court guidance on what the cases are worth."

The trial is expected to last a week.

In other MDL news, Julie Kay reports on Judge King's denial of several motions to dismiss in the checking overdraft cases:

“It’s a really important decision because these banks fought long and hard to get this knocked out at the dismissal stage,” said Bobby Gilbert, a partner at Alters Boldt Brown Rash Culmo in Miami and co-lead counsel on the case with Bruce Rogow, “The entire order is a major step forward for us ... allowing us to proceed to the discovery stage.”

Miami attorney Barry Davidson of Hunton & Williams, who represents Wachovia, declined comment, as did Aaron Schur of Aaron & Porter in San Francisco, who represents Bank of America.

I posted the order above.

Hey, that's weird -- I just wrote an entirely snark-free post!

The "Stealth War on Judges" And Paul Begala.

So I see the Senate finally confirmed Joseph Greenaway Jr. to the 3d Circuit, unanimously, after being nominated back in June 2009:

Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the 3rd U.S. Circuit Court of Appeals, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0.

"He should have been confirmed last year, and he would have but for Republican objection," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, in remarks prepared for the Senate floor.

Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition.

Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointments to the federal bench. "We need to do our homework. Do our background. See what the bar association says. See what the FBI says," said Sen. Jeff Sessions, R-Ala., the top Republican on the Judiciary Committee, at a Feb. 11 hearing.

That is just disgraceful.

Regardless of your politics, there is no reason to hold up judicial nominations where the nominee is not controversial, there is no public opposition, and no red flags have been raised.

Speaking of politics, it felt like 1998 all over again last night as Ira Leesfield received the AJC's Judge Learned Hand Award.

Bill Clinton, Bob Graham, Bill Nelson, ok.

But Paul Begala?

Finally, the first federal drywall trial, where Ervin and Victor are co-lead counsel, is set to commence Monday in New Orleans, but without key Chinese defendants:

The proceedings will be conducted without Taishan's participation, so there was no one to contact for comment. On Thursday, Knauf Plasterboard Tianjin Co. Ltd., another drywall manufacturer from China which had intervened in the Taishan proceedings because of its interest in any precedents that could come out of the case, abruptly dropped out, leaving no defense witnesses and no one to cross-examine the plaintiffs' witnesses.

Should make the Daubert hearing a bit easier, don't you think?

Ervin Gonzalez Withdraws From Bar Presidency Race!

That's too bad, but drywall drywall drywall:

Friends: A trial date has been set for the Chinese Drywall litigation. I find that my clients' current needs are overwhelming and that I must focus on their needs rather than my goal to become President-Elect of The Florida Bar. This is why I have withdrawn as a candidate. I believe that as professionals our duty requires us to protect our clients' interests first and foremost. Thank you for all of your support.

Clients' current needs? Professional duty?

I told you this guy is old-school.

Actually, that's a bummer but we totally understand.

For old times' sake, let's take another look at Ervin's announcement video and what could have been.....

3d DCA Watch -- Geometric Eggnog And Mistletoe Edition

Does anyone really like the geometric pattern of the bunker?

I for one do, and in fact I have suggested a few simple modifications to further bring out the angles, the boxiness, the sharp lines that just scream out "we who labor here seek only the truth (and hip early 70s Norwegian building design)."

What do you think -- I kinda like it.

Ok, the eggnog has been added to the coffee, the swilling has reached veritable OCD levels, and the mistletoe has been strategically placed above a certain former Chief Judge as we launch into the final, action-packed 3d DCA Watch of this wunnerful, wunnerful year:

Honeywell v. Guilder:

Here we are again with this case, and a new opinion has been substituted which reverses the $24 million mesothelioma verdict.

As before, one issue was the trial court's failure to redact a portion of an old letter:

Here, the Bendix employee’s letter to an asbestos supplier written in the late 1960’s was relevant to proving Honeywell’s knowledge of the dangers of asbestos in its products. However, we find that the portion that stated, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause[,]” was unfairly prejudicial. See § 90.403. Therefore, the trial judge erred in refusing to redact this portion of the letter for use at trial. See MCI Exp., Inc. v. Ford Motor Co., 832 So. 2d 795 (Fla. 3d DCA 2002).

I agree there's no question that portion of the letter is highly prejudicial, but why is it unfairly prejudicial?

It just is, I guess.

Master Plaster v. Scottsdale Insurance:

This one's just here because of the name Master Plaster.

You ask me am I happy
Well as matter of fact
I can say that I'm ecstatic
'Cause we all just made a pact
We've agreed to get together
Joined as children in Jah
When you're moving in the positive
Your destination is the brightest star

You go, Stevie!!

United Real Estate v. Key Biscayne:

Hey, Tricky Dick's old helipad!

(Alas, no mention of Bebe Rebozo.)

Dora Puig v. PADC Marketing:

Interesting opinion on the impact of a bankruptcy proceeding as it affects a nondebtor.

Bottom line is Don Peebles better get ready for his deposition.

Banner Supply v. Harrell:

This is a Chinese Drywall case pending before Judge Freeman. The defendant filed a motion to abate, did not do any of the required statutory inspections, and consequently it looks like this sucker is going to trial.

Congrats to Steve Rosenthal -- you're going to have a busy 2010.

Finally, on behalf of the lawyers of South Florida, I want to wish the Resplendently Robed Ones a very Happy Holidays and a great New Year, and a sincere thanks for your good humor and dedicated public service (not to mention an exceptional year in judicial punditry).

MDL Panel Creates Giant Sucking Sound.

Yes kids, those civil litigators all in quiet mourning today are lamenting the huge loss of business due to the MDL Panel's surprise decision to export dozens of Chinese Drywall cases pending in the SD FL to -- of all places -- Louisiana:

Coral Gables attorney Ervin Gonzalez, who has filed about 20 drywall cases, said the consolidated litigation will allow plaintiff attorneys to share information and avoid costly duplicative court costs.

“I think it’s good we are going to start moving on these cases,” the Colson Hicks Eidson partner said.

Plaintiffs' counsel are less dramatically impacted by this decision, as their ability to organize cases is not necessarily dependent on the location of the litigation, although that sometimes does play a role.

But for defense counsel hired by large firms as local counsel or in the Miami offices of national firms involved in the litigation and hoping to get a big chunk of this work, the MDL Panel decision may have a momentous impact -- potentially millions of dollars in work yanked from our local legal economy and exported to lawyers in Louisiana, who will likely be working with the DC or NY-based offices of national firms.

Oh well, at least it's New Orleans.

(MDL junkies, take heart -- the Panel did send two pieces of litigation our way recently, the Kaplan qui tam cases to "seasoned jurist" Judge Seitz, and the checking overdraft cases to the heavily seasoned Judge King).

New Local Rule -- All South Florida Lawyers Must Have Something To Do With Chinese Drywall.

If I hear the words "Chinese Drywall" one more time I will pull a Carver, or a Shumie, or something and heads will roll.

For the love of God please don't send me things like this:

Attorney C. David Durkee, partner with the Florida law firm Roberts & Durkee, announced the scheduling of a town hall meeting in Lake Worth, Fla., to discuss possible toxic Chinese drywall in the community as well as other communities throughout Florida. Durkee, who is filing a series of lawsuits on behalf of homeowners who say the Chinese-made drywall is causing health issues and damaging their homes and belongings, will answer questions at 7 p.m. Tuesday, May 19, at the Holiday Inn West Palm Beach - Turnpike, 7859 Lake Worth Road, Lake Worth, Fla., 33467. The event is free and open to the public. Attorney Wayne S. Kreger, partner with the national law firm Milstein, Adelman & Kreger, based in Santa Monica, Calif., will help lead the town meeting. Kreger is handling California class-action suits concerning toxic Chinese drywall and collaborating with Durkee and other attorneys nationwide.

Unless "Chinese Drywall" is some euphemism for "feminine tannins" (which incidentally I also hope is a euphemism) keep me the hail away from it, and the litigation too.

Have fun Judge Moore and the two hundred or so lawyers involved in this monstrosity!