BOSTON SCIENTIFIC LOSES ITS FIRST FEDERAL TRIAL AND IS ORDERED BY A FLORIDA JURY TO PAY FOUR VICTIMS OF ITS VAGINAL MESH PRODUCTS A TOTAL OF $26.7 MILLION

Boston Scientific Loses First Federal Trial Over Mesh

Jurors in federal court in Miami deliberated about four hours yesterday before finding Boston Scientific officials defectively designed their Pinnacle pelvic-organ implants and failed to properly warn doctors and their patients about the device’s risks, Joseph Osborne, a lawyer for one of the women, said in an interview.

The verdict is the first in a federal case against Boston Scientific over the Pinnacle inserts and the first to combine more than one plaintiff’s claims.

“Boston Scientific better start giving serious consideration to doing a global settlement of these vaginal mesh cases,” Carl Tobias, who teaches product-liability law at the University of Richmondin Virginia, said in a phone interview. “This verdict reinforces the substantial liability they are facing and it’s growing with each verdict.”

Four Awards

Jurors awarded Amal Eghnayem, Osborne’s client, more than $6.7 million. The panel also awarded Margarita Dotres and Mania Nunez, two other women who got Pinnacle implants, more than $6.7 million each. Juana Betancourt, the final woman in the group, was awarded more than $6.5 million, Osborne said. The panel awarded only compensatory damages, he added.Female-Patient-Doctor

Kelly Leadem, a Boston Scientific spokeswoman, said the company disagreed with the jury’s findings that the Pinnacle inserts suffered from design flaws and that company officials didn’t warn about the implants’ risks.

“We believe we have strong grounds to overturn the verdict on post-trial motions and on appeal,” she said in an e-mailed statement.

“The evidence we presented showed that the company completely mishandled this product, and I think the jury’s damage award reflects that,” Osborne said.

The women’s lawyers argued yesterday that Boston Scientific officials ignored internal calls for more testing of the pelvic-organ implant and hurried the device along to counter competitors’ products.

In September, a state court jury in Texas ordered Boston Scientific to pay $73 million in damages to a woman who blamed one of its incontinence implants for her constant pain. That verdict was cut to $34.6 million by the trial judge. The company has won other cases that have gone to trial in state court in Massachusetts.

23,000 Suits

The Natick, Massachusetts-based company, the second-largest maker of heart-rhythm devices, faces more than 23,000 suits over its vaginal implants in U.S. state and federal courts, as well as in Canadian and U.K. courts, according to filings with the U.S. Securities and Exchange Commission. Boston Scientific pulled Pinnacle from the U.S. market in 2011.

Many of the cases against Boston Scientific have been consolidated before U.S. District Judge Joseph Goodwin in Charleston, West Virginia. Others have been filed in state courts in Delaware,New Jersey, Missouri, Texas and California.

Goodwin, who’s overseeing all the vaginal-mesh suits filed in federal courts against Boston Scientific, presided over the trial of the four women’s claims.

Substandard Materials

Women contend the inserts are made of substandard materials and often erode once they are implanted, causing pain and organ damage, and making sex uncomfortable.

The women’s lawyers presented evidence showing the mesh used in the Pinnacle insert hadn’t been approved for use within the human body by the company that made it.

Boston Scientific’s lawyer told jurors in the Miami case the mesh used in the inserts has been relied upon for years by doctors and engineers properly designed the devices.

“There’s no such thing as a risk-free surgery,” Hildy Sastre, one of the company’s lawyers, told jurors. “Because somebody develops a complication, which they’ve been clearly warned of, that doesn’t mean there’s a defect with the product.”

Boston Scientific is expected to face closing arguments Nov. 17 in another multi-plaintiff trial in federal court in West Virginia.

The Florida case is Eghnayem v. Boston Scientific Corp., 14-cv-24061, U.S. District Court, Southern District of Florida (Miami).

To contact the reporter on this story: Jef Feeley in Wilmington, Delaware at jfeeley@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net Andrew Dunn, Peter Blumberg

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Texas Worker Safety is the Worst

Workplace Deaths Decline, But Texas Still Fares Worst

Hurting for Work


How disdain for government regulation sparked a “Texas miracle” economy — while tearing down protections for the workers who built it.

Texas saw a decline in the number of people killed on the job in 2013, but the state still leads the nation in workplace fatalities, according to preliminary government data released Thursday.

There were 493 fatal work injuries in Texas in 2013, compared with 536 a year earlier, the U.S. Bureau of Labor Statistics reported. That represents a decline of about 8 percent. The 2013 figures are considered preliminary and will be revised in the spring.

As the Texas Tribune reported in its Hurting For Work series this summer, Texas has led the nation in worker fatalities for seven of the last 10 years. That trend held firm with the release of the 2013 data. Stretching back to 2000, Texas has experienced more job fatalities than any other state for 10 of those 14 years.

Other large U.S. states had significantly fewer workplace fatalities last year: California had 385, while Florida had 234 and New York had 160. (It’s worth noting that Texas has experienced comparatively high employment over the last decade. Since 2003, a third of the net new jobs created in the United States were in Texas).

While fatalities fell overall nationwide last year, deaths among Latino workers went up 7 percent nationwide between 2012 and 2013 — or 797 last year compared to 748 the year before. Texas has a large Hispanic workforce, particularly in the construction industry, but racial and ethnic breakdowns by state weren’t available Thursday.

Transportation accidents, accounting for 213 deaths, caused the most workplace fatalities in Texas, followed by contact with objects and equipment, 76; falls, slips and trips, 73; violence by persons or animals, 66; fires and explosions, 32; and exposure to harmful substances or environments, 31.

Heavy truck and tractor-trailer drivers proved to be the most dangerous occupation in Texas in 2013, accounting for 104 incidents, the data shows.

TO STAY UP TO DATE WITH THE LATEST LAW NEWS, BE SURE TO FIND US ON FACEBOOK AT https://www.facebook.com/dzwlaw AND FOLLOW US ON TWITTER AT https://twitter.com/DZWLAW.

DERRYBERRY ZIPS WADE LAWHORN, PLLC  http://www.dzwlaw.com

Vaginal Mesh Manufacturers May Resolve All Claims– Great News for Women Who Had These Products Implanted

From Bloomberg News:

C.R. Bard Inc. and four other makers of vaginal-mesh implants accused of injuring women are in talks to settle thousands of lawsuits, people familiar with the discussions said.

Lawyers for Bard, Endo Health Solutions Inc. (ENDP)Boston Scientific Corp. (BSX) and two other companies making vaginal inserts to support women’s pelvic muscles and treat incontinence have begun talks about settling all suits over their products, the people familiar with the matter said. Johnson & Johnson, which also faces suits over the inserts, isn’t involved in the talks, said the people, who asked not to be identified because they weren’t authorized to speak publicly.

Boston Scientific said in an August regulatory filing it faces more than 12,000 suits over its vaginal devices. Photographer: JB Reed/Bloomberg News

Patients’ lawyers want U.S. District Judge Joseph Goodwin in Charleston, West Virginia, who is overseeing federal suits targeting the implants, to appoint a settlement committee, the people said. The group would include plaintiffs’ lawyers Henry Garrard, lead counsel on the Bard cases, and Joe Rice, a lawyer who helped negotiate a $246 billion tobacco-litigation accord on behalf of state attorneys general, the people said.

“I know you all are considering settlement protocols and the possibility of resolutions,” Goodwin said at a Sept. 18 court hearing. He noted the talks were going on “behind the scenes.”

The discussions are aimed at resolving more than 30,000 implant suits already filed that have been consolidated before Goodwin for pre-trial information exchanges, the people said. The talks also include insert makers Coloplast A/S (COLOB) and Cook Medical Inc., they said.

50,000 Claims

The total number of suits could swell to more than 50,000 as more claimants seek to join the potential settlement, the people said.

“The liability seems pretty clear on these cases, so settlement makes sense,” Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia, said in an interview. “Given how serious the injuries are and the number of cases, when you do the math, you can easily come up with a multibillion-dollar settlement.”

Scott Lowry, a spokesman for Murray Hill, New Jersey-based Bard, didn’t return a call and an e-mail seeking comment on the settlement talks. Ulla Lunhus, a Coloplast spokeswoman, said she couldn’t comment on the talks.

Following Process

“We are following a process that is in accordance with U.S. law,” she said in a phone interview. “As long as that process is ongoing, we are not able to make any comment about it.”

Marsha Lovejoy, a spokeswoman for Bloomington, Indiana-based Cook; Peter Lucht, a spokesman for Natick, Massachusetts-based Boston Scientific; and Blaine Davis, a spokesman for Malvern, Pennsylvania-based Endo declined to comment on the talks.

Bard’s implants have been targeted in more than 12,000 cases while Boston Scientific said in an August regulatory filing it faces more than 12,000 suits over its vaginal devices.

Endo’s American Medical Systems Inc. unit faces about 13,500 vaginal-mesh claims between state and federal suits, Davis said in an interview. Coloplast and Cook face about 1,000 claims combined, the people added.

J&J faced 12,250 pelvic mesh claims through June 30, according to a regulatory filing. Sheri Woodruff, a spokeswoman for the Ethicon unit of New Brunswick, New Jersey-based J&J, said it would be “inappropriate” to discuss litigation involving other manufacturers.

‘Possibly Unfounded’

“Ethicon is now focusing on trying to efficiently manage thousands of unverified and possibly unfounded complaints,” Woodruff said in an e-mail. The company will “request dismissal of meritless claims, including claims with no compensable injury, claims barred by the statute of limitations, misfiled claims, and improperly filed claims.”

Some manufacturers, such as Bard and Endo, already have settled some suits over the devices. Earlier this year, Endo officials paid $54.5 million to settle an unspecified number of cases alleging the company’s vaginal-mesh inserts were defective.

Coloplast, based in Humlebaek, Denmark, is the furthest along with talks to settle all of the more than 600 cases it faces over its vaginal implants, the people said. The company is aiming to resolve all litigation over the devices by the end of the year, they added.

Trial Losses

Bard officials also have settled some vaginal-mesh cases after losing two trials over the devices. A California state court jury last year found Bard liable for a woman’s injuries related to an Avaulta implant in the first case to go trial in a U.S. court. Jurors said the company should pay $5.5 million in damages. Bard is liable for $3.6 million under that state’s law.

Goodwin presided at the first federal trial of claims over Bard’s Avaulta Plus vaginal mesh in August. A jury ordered the company to pay a total of $2 million in damages to a Georgia woman who said the device damaged her organs.

Bard officials pulled the Avaulta implants off the market last year after the U.S. Food and Drug Administration ordered all makers of the devices to study rates of organ damage, infection and pain during sex linked to their products.

Bard faces more than 8,000 federal claims over Avaulta, which women allege can cause organ damage and make sexual intercourse painful when the devices erode.

J&J, which opted out of settlement talks, has battled court claims against its withdrawn line of vaginal implants. A New Jersey jury ruled in February the company must pay $11.1 million in damages to a woman who blamed J&J’s Gynecare Prolift for her injuries. It was the first case over the devices to go to trial.

J&J Sales

Officials of J&J’s Ethicon unit told Goodwin last year they would stop selling some vaginal implants after suits over the devices. The company’s executives have declined to participate in settlement talks, the people said.

“I expect Johnson & Johnson (JNJ) to discuss settlement when they think the time is right,” Adam Slater, a New Jersey lawyer who won the February verdict against the company over vaginal devices, said in an interview. Slater said he is preparing for his next trial in March 2014.

Goodwin said in the September hearing that he’s struggling to find ways to move the “mountain” of vaginal-mesh cases through the federal courts and is considering combining multiple plaintiffs’ claims for trial.

“I’m going to keep the bulldozer moving to deal with these cases,” he said.

Settlement Architect

Lawyers for women suing over the inserts have recommended that Goodwin tap plaintiff lawyers Garrard, Rice, Bryan Aylstock of Florida and Clayton Clark, a Texas-based litigator, for a settlement committee empowered to conduct talks with all mesh manufacturers, the people said.

Rice, one of the architects of the 1998 tobacco settlement, is known for his ability to put together accords in high-profile cases. Last year, the 59-year-old lawyer helped negotiate a now $9.6 billion settlement of suits against BP Plc (BP/) over the 2010 oil spill in the Gulf of Mexico. He declined to comment on his role in the vaginal-mesh talks.

The vaginal-mesh litigation poses a challenge for Rice and other settlement negotiators because they are faced with cases over more than 50 different implants manufactured by six different companies, the people said. Some of those products have been pulled from the market while others are still being implanted, they added.

Rice is focusing his attention first on cases involving American Medical Systems’ inserts, the people said. Ellen Reisman, a Los Angeles-based lawyer representing the device maker, was one of BP’s lawyers in Gulf oil spill settlement announced last year, they noted. Reisman was at the Sept. 18 hearing in West Virginia.

The Bard consolidated cases are In re C.R. Bard Inc. (BCR) Pelvic Repair System Products Liability Litigation, 10-md-02187, U.S. District Court, Southern District of West Virginia (Charleston). The J&J consolidated cases are: In re Ethicon Pelvic Repair System Products Liability Litigation, 12-md-2327 U.S. District Court, Southern District of West Virginia (Charleston).

To contact the reporters on this story: Jef Feeley in Wilmington, Delaware atjfeeley@bloomberg.net; David Voreacos in Newark at dvoreacos@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

 

Bard Settles Second Bellweather Vaginal Mesh Case

Bard settles second bellwether mesh case after plaintiff verdict in first trial

Female-Patient-Doctor

By Courtney L. Davenport

Following a plaintiff verdict in the first transvaginal mesh bellwether trial in a federal MDL against C.R. Bard, Inc., the device maker settled the second bellwether case shortly after jury selection. About 4,400 suits are pending in that MDL, and about 25,400 federal suits are pending in MDLs against other mesh manufacturers. (In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187 (S.D. W. Va. Aug. 23, 2013).)

Last month, a jury awarded Donna Cisson and her husband $2 million, including $1.75 million in punitive damages, against Bard after transvaginal mesh implanted to treat pelvic organ prolapse (POP) eroded, causing bleeding, pain during intercourse, and bladder spasms and requiring additional surgeries. The Cissons alleged Bard defectively designed the mesh and failed to warn doctors when it learned of the risks.

Less than two weeks later, Bard settled with Wanda Queen and her husband for an undisclosed amount. Queen’s specific injuries were not disclosed in the complaint, but attorneys said that despite six corrective surgeries, her injuries are permanent.

Harry Bell of Charleston, W. Va., coliaison counsel in the MDLs, said the Cisson verdict may have prompted Bard to settle with the Queens because Queen’s case was even more egregious. But he does not know what impact the positive resolutions will have on the two remaining bellwether suits or the other MDL plaintiffs.

“From the perspective of the manufacturer, how’s it going to look to the public to have two adverse verdicts back to back and with the verdict amounts increasing? They made the decision they couldn’t take that risk,” he said. “Whether Bard makes the decision to settle [the others], one never knows. Bard has to be considering settlement considering the cases it is losing.”

Transvaginal mesh is surgically implanted in the vagina or abdomen to treat POP—in which the bladder, bowel, or other pelvic organs protrude into the vagina—and stress urinary incontinence. But shortly after it became popular in the late 2000s—in 2010 alone, mesh was implanted in 300,000 women—the FDA started receiving reports of serious injury when the mesh eroded, scraping tissue and protruding into the vagina or other organs, causing chronic pain, incontinence, infection, pain during intercourse, and other problems. Sufferers often require multiple surgeries to remove all of it. In 2011, the FDA warned that serious complications are “not rare” and advised that transvaginal mesh should not be used to treat POP, because it had not proved to be more effective than safer alternatives.

Thousands of mesh recipients and their families sued Bard; Johnson & Johnson subsidiary Ethicon, Inc.; American Medical Systems, Inc.; Boston Scientific Corp.; Coloplast Corp.; and Cook Medical, Inc. The suits allege the manufacturers did not test the defectively designed mesh before putting it on the market, nor did they properly train physicians. Federal MDLs were established against each defendant. State lawsuits are also pending against many of them, and at least two plaintiffs have obtained jury verdicts.

In July 2012, a California state court jury awarded Christine Scott—who suffers fecal incontinence and chronic pain and cannot have sexual relations after mesh eroded into her colon and vagina—and her husband $3.61 million against Bard. (Scott v. C.R. Bard, Inc., No. S-1500-CV-266034 (Cal., Kern Co. Super. July 24, 2012).) Earlier this year, a New Jersey court jury awarded Linda Gross and her husband $11.11 million against Ethicon. Gross underwent 18 surgeries to remove eroded mesh and permanently suffers such severe pain in her legs and pelvis that she cannot sit comfortably, be active for more than a few minutes, or have sexual intercourse. (Gross v. Ethicon, Inc., No. Atla-L-6966-10 (N.J., Atlantic Co. Super. Feb. 25, 2013).)

Bard asked that the court stay the other bellwether trials or certify an interlocutory appeal of an order in Cisson that excluded evidence of the FDA 510(k) device-approval process and the FDA’s decision not to recall Bard’s mesh devices. The judge has denied the request, holding that “I remain unconvinced that Bard is likely to succeed on the merits of any appeal related to the 510(k) issue” and that Bard will not be irreparably injured by waiting for the outcome of the remaining bellwether trials, the first of which is set to begin Oct. 8.

Derryberry Zips Wade Lawhorn, PLLC Announces the Settlement of Two Drunk Driving Cases

We obtained a settlement for a man and his 14 year old son who were hit by a drunk driver. The drunk driver’s insurance company paid the maximum policy limits that were available to settle the case. The drunk driver attempted to flee the scene of the wreck but our client, and a good Samaritan who witnessed the wreck, followed the drunk driver until the police could pull him over and arrest him. The drunk driver pled guilty to DWI, his second DWI.

We obtained another settlement for a man who was hit by a drunk driver. Our client’s vehicle was hit head on by the drunk driver and our client’s vehicle rolled over several times. The drunk driver’s insurance company paid the maximum policy limits that were available to settle the case. The drunk driver pled guilty to DWI.

Derryberry Zips Wade Lawhorn, PLLC continues to work each day to protect members of the community by holding responsible and accountable those individuals and corporations that violate safety rules that are designed to protect all members of a community.

Fosamax Fracture Trial Begins

Merck Knew of Fosamax Bone Risk in ’90, Lawyer Tells Jury
By Erik Larson – Apr 9, 2013 1:18 PM CT

Merck & Co. (MRK) was aware its Fosamax osteoporosis treatment might cause brittle bones and increase fracture risks years before the drug was made available to the public, a lawyer told a jury at the start of a lawsuit trial.

Starting in 1990, five years before Fosamax won approval by U.S. regulators, consultants began warning Merck that the drug could lead to spontaneous fractures in some users by preventing bones’ natural daily repair of so-called micro-fractures, Paul Pennock, the lawyer for plaintiff Bernadette Glynn, said today in federal court in Trenton, New Jersey.

“This company should have warned of the problems that they saw coming,” Pennock said in his opening statements to the jury, while holding a life-size replica of a thigh bone. “The company should have warned of the problems they learned actually were happening — that’s an obligation of the company.”

Merck, based in Whitehouse Station, New Jersey, faces about 3,300 femur-fracture suits. Glynn, 58, may the first such claimant to get a jury verdict, after an earlier lawsuit ended in mistrial last month. The case may be a bellwether revealing litigation strategy and potential damages awards.

The trial before the jury of three men and five women chosen yesterday is scheduled to last three weeks and will hear from medical experts on both sides of the dispute.

‘Theoretical’ Warnings
The second-biggest U.S. drugmaker denies the claims. Its lawyer, Chilton Varner, said the consultants’ early warnings were “theoretical” and that early studies showed people who took Fosamax instead of a placebo had fewer fractures.

Glynn, an elementary school worker from Cohoes, New York, who regularly takes long bike rides and yoga classes, claims Fosamax weakened her femur over a seven-year period, causing the leg bone to snap in April 2009, when she bent over in her garage to pick up a frog-shaped lawn ornament while gardening.

Glynn’s leg was repaired with surgery and the use of rods, according to her complaint. She and her husband, who sued in September 2011, appeared in court today with their children. She has never had osteoporosis and was prescribed the drug due to low bone-mass density, her lawyer said.

Merck claims Glynn’s fracture was the result of her bone condition, and that tests showed Fosamax had helped. Merck also claims Glynn broke her leg after tripping over a chain saw in her garage and falling down — a description Merck says she gave to emergency workers on the day of the accident.

‘Spontaneous Fractures’
“You might think from what you’ve heard this morning that Fosamax causes these spontaneous fractures,” Varner said in her opening statements. “Such fractures occur in people who have never taken Fosamax as well as people who have — such fractures have occurred long before Fosamax.”

Merck also denies claims that doctors and patients weren’t properly warned when the company learned of reports that Fosamax could cause so-called atypical femur fractures in some people — a warning that went on the drug’s label in 2009.

Merck also says that regardless of what was on the label and when, Glynn’s fracture wasn’t atypical, because the break was spiral in nature instead of straight across, the bone broke into more than two pieces, and the wound healed quickly. Varner also said that Fosamax doesn’t accumulate in the part of the bone that fractured in Glynn’s case.

Strongest Bones
Pennock said femurs, as the strongest bones in the body, usually only break in high-force incidents, such as car accidents, and not from falling down. Because Fosamax is designed to repair daily bone damage by stopping the natural clearing of old bone, the process results in micro-fractures building up instead of being naturally replaced, he said.

“The evidence is going to show you that it wasn’t a surprise — it wasn’t coming out of the blue,” he said of Merck’s discovery of Fosamax’s possible fracture risks. “They looked for it and studied it — when all the information starting coming in, they did nothing about it.”

The company faces another 1,230 cases alleging Fosamax caused similar fractures in jaws.

The case is Glynn v. Merck Sharp & Dohme Corp., 3:11- cv-05304, U.S. District Court, District of New Jersey (Trenton)

To contact the reporter on this story: Erik Larson in federal court in Trenton, New Jersey, at elarson4@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

JUVENILE LAW

The Basics Every Parent Should Know.

(Some text forwarded from a State sponsored website.)

Juvenile cases may include charges that a child is delinquent, dependent, or in need of supervision. A delinquent child is a one who has committed an offense which, if that child were an adult, would be considered a crime. A dependent child is a one who is orphaned, neglected, or abused and in need of care. A Child in need of supervision (CHINS) is one who committed an act which, if the child was an adult, would not be classified as a crime, but is in need of care or rehabilitation. A child in need of supervision may be habitually truant, disobedient to his parents, or a runaway. A serious juvenile offender is a child adjudicated to be delinquent and the delinquent acts charged in the petition would be similar to an adult committing a Class A felony, a felony resulting in serious physical injury, or a felony involving physical force, a deadly weapon, or a dangerous instrument. A child adjudicated to be a serious juvenile offender must be committed to the Department of Youth Services for a minimum of one year. A multiple needs child is one coming to the court’s attention who is at risk of being placed in a more restrictive environment because of emotional or mental problems, dependency, delinquency, or alcohol or drug dependency and whose needs require the services of two or more state agencies. These children are referred by the court to the county children’s services facilitation team for evaluation and recommended service plan. The court may accept or modify the service plan if the court determines it is in the best interest of the child to do so and order the provision of the services.

How do Juvenile Cases Get Filed?

An individual, including a law enforcement officer, a parent, a relative, or a neighbor, who has knowledge that a juvenile has committed a delinquent act, is in need of supervision, or independent, may file a complaint with the juvenile court. A juvenile intake officer will review the complaint to ensure that it is sufficient and that the court has venue and jurisdiction and will decide whether a normal petition will be filed with the court. The intake officer will notify the parents of the child’s detention and advise the child and parents of their rights, including the right to have an attorney present at all proceedings.

One of the most important decisions made by the intake officer is whether or not a child should be released to the custody of the parents or placed in a licensed juvenile detention facility or, in the case of dependency and CHINS cases, placed in the care of the Department of Human Resources under what is termed “shelter care.” Any time a child is detained, a hearing must be held within 72 hours in order that the juvenile judge can determine whether the child should remain in detention or in shelter care or be released into the custody of the parents.

Juveniles committing certain minor and first-time offenses may be handled without judicial action. The intake officer may withhold the filing of a formal delinquency or CHINS petition, and may attempt, with the consent of the child and the parents, to make a satisfactory informal adjustment. Under an informal adjustment, the child and the parents voluntarily agree to abide by conditions established by the intake officer. Such conditions may include counseling, curfew, required attendance at school, or other reasonable conditions. The informal adjustment process cannot continue beyond a period of six months. If the juvenile and the parents abide by the terms of the informal adjustment agreement, no petition will be filed and the charges against the child will be dismissed. If the juvenile or the parents violate the agreement of the informal adjustment, the intake officer may proceed with the filing of a formal petition.

Once the petition is filed, the juvenile case will be set for trial, which, in the juvenile court, is called an adjudication hearing. At any time after the filing of a petition in a delinquency or a need of supervision case and before the holding of the adjudication hearing, the juvenile case may be handled by a consent decree. The consent decree is an agreement between the youth, the parents or guardians, and the judge. Under a consent decree, the proceedings of the court are suspended and the juvenile is placed on probation in accordance with terms and conditions agreed upon by all parties. If the juvenile complies with all conditions of the consent decree, the petition will be discharged. If the juvenile fails to abide by the terms and conditions of the decree, the petition will be reinstated and the case will proceed to adjudication.

The Adjudication Hearing

All juvenile proceedings are confidential, and juvenile trials or adjudication hearings are heard by a judge without a jury. The hearing is closed to the public. Present at the hearing will be the juvenile, the defense attorney, parents or guardians, the district attorney who will represent the state, the victim(s) of the crime, the juvenile probation of officer, and, in dependency cases, a representative of the Department of Human Resources.  At the adjudication hearing, the judge will explain to the parties their rights, the substance of the petition and the specific allegations, the nature of the adjudication hearing, and the alternatives that are available to the court should the allegations be admitted or proven. The court will then inquire of the juvenile whether he or she admits or denies all or some of the allegations contained in the petition. An admission of the allegations is similar to a plea of “guilty” in adult court; a denial of the allegations is similar to a plea of “not guilty.” If a juvenile fails or refuses to admit any of the allegations, the judge will enter a denial.

If the juvenile denies the allegations of the petition, the hearing will continue and the testimony of witnesses will be taken. The procedures for conducting the adjudication hearing are similar to those of a civil bench trial, that is, a trial by a judge without a jury.

At the close of the hearing, the court shall find that either (1) the facts alleged in the petition are true and the child is dependent, in need of supervision, or delinquent and in need of care or rehabilitation or (2) the facts alleged in the petition are not true and the child is not in need of care or rehabilitation, in which event, the petition must be dismissed.

The Disposition Hearing

Following the adjudication hearing, the court will hold a disposition hearing which may be conducted immediately or held at a later date. In delinquency and CHINS cases, the court can transfer legal custody, require public service, place the youth on probation, and/or require restitution. In delinquency cases, the youth may be committed to the Department of Youth Services. The period of time a youth is required to stay with the Department of Youth Services is determined by the department and not by the judge.

Where a child has been found dependent, the court will address the issue of the custody of the child and whether or not the child’s custody should be placed with the parents or with other guardians, or whether the child should be made a ward of the state. In those cases where the custody of the child is removed from the parents, hearings will be held periodically to review the custody issue. This process of judicial review will continue until the child is returned to the custody of the parents, until parental rights are terminated and permanent placement is made, or until the child reaches 21 years of age.

The juvenile court may at any point in the proceedings, make parents or guardians parties in juvenile cases and require the parent or guardian to perform reasonable acts necessary to promote the best interests of the child, such as attending counseling sessions or submitting to random drug screens.

Transfer to Criminal Courts

When a child 14 years of age or older commits an act which would constitute a crime if it were committed by an adult, the district attorney may petition the juvenile court to transfer the youth to the adult court for criminal prosecution.

When a petition for transfer is filed, the juvenile court conducts a hearing to determine whether it is in the best interest of the youth or the public to grant a motion to transfer. If, after hearing all the evidence, the court finds that there are reasonable grounds to believe that the allegations against the youth are true and correct, and further finds that the youth is not amenable to the services provided through the juvenile court, the court may grant the motion to transfer the case.

A conviction or youthful offender adjudication of a child transferred and tried as an adult terminates the jurisdiction of the juvenile court over pending and future offenses. This is referred to as “once transferred, and convicted, always transferred.”

Appeals

Any aggrieved party, including the state or any subdivision of the state (except in criminal cases, delinquency cases, and CHINS cases), may appeal a decision of the juvenile court. An appeal from the juvenile court is taken to one of the two intermediate appellate courts if there is an adequate record or if the parties stipulate that only questions of law are involved. In cases involving minors or adults, the right to a trial by jury must be waived before an appeal can be made directly to the intermediate appellate courts. If these qualifications are not met, the appeal must be taken to the circuit court where the case will be heard de novo.

Appeals are filed in the Texas Court of Criminal Appeals in those cases where a child is adjudicated delinquent or where a motion seeking to transfer a child to the criminal court has been granted. All other cases involving children, including CHINS and dependency cases, are appealed to the Texas Court of Civil Appeals.

 Jurisdiction and Exceptions

Juveniles 16 years of age or older who are charged with a capital offense, a Class A felony, a felony which has as an element the use of a deadly weapon or causing the death or serious physical injury of another or a felony using a dangerous instrument against certain officials, or trafficking in drugs are expressly excluded from the jurisdiction of the juvenile court. These juveniles must be tried as adults and, if convicted, may not be tried as juveniles for any subsequent offenses.

Venue in Juvenile Cases

In delinquency and in need of supervision cases, the proceedings are held in the county where the acts constituting the alleged offense occurred. In dependency cases, however, the proceedings are held in the county where the child resides or in the county where the child was present when the proceedings began.

Cases involving Minors and Adults in the Juvenile Court

The Juvenile court primarily exercises jurisdiction over children. However, in some instances, minors and adults may come under the jurisdiction of the court. For purposes of determining the juvenile courts jurisdiction an adult is defined as an individual 19 years of age or older. A minor is an individual who is under the age of 19 who is not a “child,” i.e., an 18 year old. Cases involving minors and adults include charges that a minor or adult contributed to the delinquency, dependency, or need of supervision of a child; proceedings to establish paternity of a child; charges of desertion and non-support; and proceedings for the commitment of a mentally ill or retarded minor. The court, after making a preliminary investigation, may try to resolve the issues through informal adjustment, without prosecution. If the issue cannot be resolved informally, the case would be tried in the same manner as any similar case in an adult court, but without a jury.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those juveniles who have been wrongfully accused of criminal activity.  He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.