This week of the Litigation Roundup features a settlement, an attorney’s fees award and three new lawsuits. The litigation features a deceased Houston Rockets scout, a disabled NFL player, a Houston DEA agent who won awards for putting pill-pushing doctors in jail, the founder of a well-known Dallas hedge fund and a Houston litigation boutique’s role in a Freedom of Information Act request involving the clinical use of magic mushrooms in Washington state.
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HARRIS COUNTY
Construction Co. Settles Wrongful Death Case Involving Houston Rockets Scout
Days before trial, a settlement was reached in a wrongful death lawsuit against Pulice Construction over the death of former Houston Rockets scout Sheffery Brent “BJ” Johnson.
Johnson was riding his bicycle in October 2020 when he crashed and broke his neck after hitting an unfinished stretch of sidewalk. The under-construction sidewalk wasn’t appropriately blocked off, argued his attorneys Benny Agosto Jr. and Edward Festeryga of Abraham Watkins Nichols Agosto Aziz & Stogner.
The parties informed Harris County District Court Judge Tanya Garrison of the settlement July 12, days before the July 18 trial date.
Pulice was represented by Ann E. Knight and David A. Oubre of Lewis Brisbois Bisgaard & Smith and Howard L. Close, Ronnie L. Flack Jr. and Jared T. Douthit of Wright Close & Barger.
The cause number is 2021-01326 in the 157th District Court of Harris County.
SDTX
Yetter Coleman Takes on DOJ, DEA in FOIA Request Involving Psilocybin
Yetter Coleman partner Matthew Zorn, a Seattle oncology clinic, a doctor at the clinic and Washington state-based psychedelics lawyer Kathryn Tucker are the named plaintiffs in a new lawsuit filed against the Department of Justice and the Drug Enforcement Administration.
The plaintiffs seek a declaratory judgment against the two government agencies and their leaders, Merrick Garland and Anne Milgram, that would declare their pattern of handling Freedom of Information Act requests unlawful and seeks to get their FOIA requests answered.
According to the July 19 lawsuit, the Seattle clinic, AIMS Institute, and its co-founder, Dr. Sunil Aggarwal, believe right-to-try laws permit access to psilocybin for therapeutic use by terminally ill cancer patients suffering from severe anxiety and depression. In February, they petitioned to the DEA to reclassify psilocybin from Schedule I to Schedule II under the Controlled Substances Act and asked for an exemption allowing them to treat their cancer patients with psilocybin.
The plaintiffs say the DEA didn’t respond, which led AIMS Institute, Aggarwal and their attorney, Tucker, to file a FOIA request. Two weeks after the deadline, the lawsuit says, the DEA said it would need more than a month to respond because the request raised “unusual circumstances.” The lawsuit says the DEA has also stonewalled Zorn’s own FOIA requests.
Zorn and Tucker are listed as counsel on record, as well as Shane Pennington, a former Yetter Coleman lawyer who now practices in New York at Vicente Sederberg.
The cause number is 4:22-cv-02396 and has been assigned to U.S. District Judge Lynn Hughes.
DEA Special Agent Sues for Employment Discrimination
A Houston-based DEA employee Tonya Graham sued the DEA and DOJ July 20 alleging the agency she worked for discriminated against her by repeatedly passing over Graham, an African-American female, for promotions.
From 2014 to 2020, Graham worked in the Tactical Diversion Squad and was largely responsible for an “unprecedented” number of arrests of doctors, pharmacists and others involved in illegally trafficking opioids, the lawsuit says, and the DOJ recognized her with two awards. But after being repeatedly passed over for promotions, Graham filed an EEO discrimination complaint in November 2020, and then her bosses retaliated by moving her to a desk job and confiscating her work phone, the complaint says.
Graham hired Houston lawyer Ashok Bail of the Bail Law Firm to represent her in her discrimination suit, which has been assigned to U.S. District Judge Charles Eskridge.
The cause number is 4:22-cv-02411.
DALLAS COUNTY
Highland Capital’s James Dondero Sues Lawyers
James Dondero, the controversial co-founder and ex-chief executive of hedge fund Highland Capital Management who has a litigious reputation, sued Fort Worth law firm Bonds Ellis Eppich Schafer Jones and three of its partners for malpractice July 15.
Dondero hired the firm in 2020 to protect his financial interests in Highland Capital’s Chapter 11 bankruptcy, the lawsuit says. Dondero claims that his lawyers — John Bonds, Joshua Eppich and Clay Taylor — failed to perform their due diligence and discovery for objections Dondero raised for settlements related to the bankruptcy. If they had, he claims, his objections likely would have been sustained.
Dondero hired Dallas lawyer Sawnie McEntire and Houston lawyer Roger McCleary of Parsons McEntire McCleary to file the lawsuit. The Bonds Ellis lawyers have not appeared in the case yet.
The cause number is DC-22-08143 and has been assigned to Dallas County District Judge Tonya Parker.
NDTX
Disabled running back awarded $1.2M in legal fees after ‘David v. Goliath’ win over NFL pension plan
A federal judge in Dallas awarded former pro football player Michael Cloud more than $1.2 million in attorney’s fees after his lawyer won a near doubling of his disability benefits under the National Football League’s retirement plan.
U.S. District Judge Karen Gren Scholer made the award on July 18, finding that Cloud’s lead lawyer, Christian Dennie of Barlow Garsek & Simon in Fort Worth, had won a hard-fought victory for his client, “defying the odds while facing extraordinary difficulties along the way.”
“David took on Goliath and prevailed,” the judge wrote.
Cloud, an All-American running back at Boston College, played for the Kansas City Chiefs, the New York Giants and the New England Patriots before injuries, notably a severe concussion sustained in a 2004 game, forced him to retire in March 2006. An administrative judge from the Social Security Administration ruled in 2014 that Cloud, now 47, is “totally and permanently disabled.”
In May, after a six-day bench trial, Scholer ruled that the NFL pension plan “abused its discretion and acted arbitrarily and capriciously” in denying Cloud’s 2016 written appeal for a higher monthly disability benefit than what the pension plan originally granted him. In a subsequent judgment, she awarded him retroactive benefits totaling almost $1.3 million, including interest; and an increase in his future annual benefits from the current $135,000 to $265,000.
The pension plan is represented by Edward J. Meehan and Michael L. Junk of the Groom Law Group of Washington, D.C.; Nolan C. Knight and Toni L. Anderson from the Dallas office of Munsch Hardt Kopf and Harr; and D. Mitchell McFarland from Munsch Hardt’s Houston office.
On Monday, the pension plan’s legal team filed a notice of appeal of both Scholer’s trial judgment and her award of attorney’s fees.
The cause number is 3:20-cv-01277-S.
Editor’s Note: Michelle Casady and Bruce Tomaso contributed to this report.