Judge orders production of paralegal's notes to help identify parties

Michelle Massey, East Texas Bureau Nov. 29, 2007, 4:43am

MARSHALL -- U.S. District Judge Leonard Davis ordered defendant Time Warner to produce a flowchart created by its paralegals on Nov. 20.

Plaintiffs Cheryl Whittington and Richard Blake Howard requested partnership and dissolution agreements along with the flowchart to help identify proper parties to an ongoing litigation.

The litigation arises out of the death of Ricky Whittington, who was electrocuted while attempting to repair cable lines damaged by Hurricane Rita.

Ricky's widow and Richard Howard, a witness to the incident, filed the original suit against Time Warner Cable, Inc. on July 13, 2006, in the Marshall Division of the Eastern District of Texas.

By the filing of the Plaintiffs' Sixth Amended Complaint, the following companies were added as defendants: Texas and Kansas City Cable Partners, Entergy, Time Warner Entertainment, Twean Holdings, Inc., AOL Time Warner, Inc., Cablevision Industries, Inc., TWE-A/N Texas Cable Partners, Cable Texas and C-Cubed.

According to this latest complaint, Cable Texas and C-Cubed built, owned and maintained the cable lines at issue. The other defendants hired Broadband Specialists, Whittington's employer, to repair and replace damaged cable wires in and around Beaumont following Hurricane Rita.

Plaintiffs assert that the defendants knew the cables Whittington was working on were in violation of applicable codes and standards.
The plaintiffs believe defendants were negligent and caused
Whittington's fatal injuries by building the cable system dangerously close to electric lines and failing to warn Broadband Specialists of the cables close proximity to live electrical wire.

Defendant Time Warner filed a third party complaint and a request for declaratory judgment stating Broadband Specialists is failing to honor its contractual obligations. Time Warner argues its construction contract with Broadband states that Broadband will "hold harmless and unconditionally indemnify the Time Warner defendants from any and all claims that are in any way related to the construction contract."

According to Time Warner, Broadband has acknowledged its contractual obligations but will not act on its responsibility "due to the actions of bad faith and breach of contract engaged in by its insurers," First national Insurance Company and American States Insurance Company.

In an effort to identify proper parties and address liability issues, Judge Davis granted the plaintiffs' request for production of defendants' partnership agreements and a flowchart developed by Time Warner's paralegal on Nov. 20. Defendants argued the documents are irrelevant as the proper parties are named. Although granting the plaintiffs' request, the judge denied the plaintiffs' request for sanctions against the defendants.

Individually and as estate representative Cheryl Whittington is seeking damages for medical, burial, and funeral expenses, conscious pain and suffering, mental anguish, pecuniary loss, loss of consortium, loss of love, companionship, comfort, and society, lost earnings, and pre and post-judgment interest. The witness is seeking damages for severe mental anguish and pre and post-judgment interest.

D. Neil Smith of the Daingerfield law firm Nix, Patterson and Roach, L.L.P. and attorney Matt Keil of the Texarkana law firm Keil and Goodson are representing the plaintiffs.

Judge Leonard Davis has set a mediation deadline of July 25, 2008, and scheduled a jury trial to begin on Nov. 10, 2008.

Case No. 2:06cv00288

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