Welcome to the bench Judge Truncale
Michael Truncale was sworn in to start work as the newest EDTX judge yesterday in Beaumont. (You can tell because the door says “judge” and he’s holding what appears to be a stack of Bibles)
Beaumont
Reassignment of EDTX Civil & Criminal Actions
Whenever the makeup on a district court’s bench changes, though retirements or the addition of new judges, the docket is reallocated. Last week saw a significant reallocation of the Eastern District’s cases due to the arrival on the bench of Judge Jeremy Kernodle in Tyler and changes in Senior Judge Ron Clark’s docket. I wanted to go through the changes and what they mean in the affected divisions.
No Retaliation Here
This case was filed as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and also asserted individual claims for retaliation. It’s particularly useful because it addresses a motion for partial summary judgment as to the individual retaliation claim, and takes the form of a report & recommendation by the magistrate judge, which was affirmed by the district judge. I have attached both orders to the analysis below.
Judge Giblin and the Seven Dauberts
This case generated seven – count ’em seven – motions to strike or limit expert testimony, five by the plaintiff and two by the defendant. The report and recommendation by Judge Giblin provides a really useful analysis into the admissibility on common categories of expert testimony.
Four GD’s, two SOBs and one f-bomb comes to …
I just spent the last two days in depositions that were a model of decorum and professionalism by all involved, which reminded of one that wasn’t.
Once upon a time an EDTX judge was presented with a situation involving the use of coarse and profane language by a lawyer in a deposition. (No, it didn’t involve Joe Jamail).
After considering all facts surrounding the deposition, arguments of counsel, and the attorney’s statement at the show cause hearing, the judge imposed a fine for the abusive behavior at his deposition. But it’s how the fine was calculated that is of interest …
Beaumont Division Courthouse Reopens Monday, September 18, 2017
The Beaumont division of the United States District Court for the Eastern District of Texas will resume normal operations on Monday, September 18, 2017. Please refer to General Order 17-14 regarding filing deadlines and General Order 17-17 regarding continuances that may have been affected by the court closure.
Reloading? There’s a Deadline For That.
This is a product liability case arising out the use of a treestand, shown at right. 
For non-East Texans, treestands are used for hunting when you don’t have a conventional stand, an exemplar of which is shown at left. The deer is clearly Photoshopped in since they never come this close to any deer stand I have ever been associated with.
Deer stands for most hunters involves a gun. My dad, on the other hand, favored Snickers snack-size bars and cigarettes, and usually left the gun at the house. (If you stop and think how much work you’ve bought for yourself if you actually kill a deer, forgetting the gun makes a lot of sense).
But try not to picture the danger of a redneck climbing a tree to try to get into the aforementioned treestand with a rifle, and return to comforting thoughts of scheduling orders, which in this case involved, as they are wont to do, a deadline to amend pleadings. In this case, the allegedly injured would-be deer assassin sought to amend his pleadings two months after the deadline.
Post-trial accounting (escrow, royalty rate & interest calculations)
Assume a jury finds infringement – which on recent numbers happens about half the time a patent case goes to trial. Then assume that the patent is still in effect and the jury was not asked to determine future damages. In recent cases following the general abolition of injunctive relief in most patent cases, the Federal Circuit has instructed trial courts how this is supposed to work. In a recent decision arising out of a verdict in favor of the patentee in a medical device case an EDTX judge applied this caselaw and set forth how it worked out, including the creation of an escrow account, the appropriate royalty rate for future sales, as well as issues of prejudgment and postjudgment interest.
284/285 Time: Orders on Motions for Enhanced Damages and Attorneys Fees
In an average year about fifteen patent cases are tried in the Eastern District of Texas. Statistically, about half are complete defense verdicts, and of the remaining ones, only a few have willfulness findings, so it’s a rare case that presents both a Section 284 claim for enhanced damages and a Section 285 claim for exceptional cases status. When we do have them it allows analysis of which conduct supports (or doesn’t) an award, since courts try to ensure that a party isn’t inadvertently penalized twice for the same conduct. But a recent case out of Beaumont presents both, and provides some useful insight into a trial court’s calculation of enhanced damages, as well as the more frequently presented question of whether a case is “exceptional” for Section 285 purposes.
Reconsideration of Order Denying Remand Granted
I had an old law school professor tell me once that the number one thing most lawyers wanted to know about federal court was how to get out, and thus if I really wanted to make friends I should focus on removal and remand in my “federal update” papers. I then had an even older partner once tell me that it’s a fool’s errand to try to persuade a judge that they made a mistake.
Thus a case in which a party not only succeeded in getting out of federal court via a successful remand, but by way of convincing a court that its prior order denying remand was erroneous would be of interest, no? Well, that’s what we have in this case arising out of a fatal Florida auto accident