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Wrongful death court battle gets heated

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Posted: Saturday, March 17, 2012 12:00 am

Attorneys for Union Pacific Railroad and train engineer Ernesto Ortegon have been requesting a “death penalty sanction” against attorney Marc G. Rosenthal and his clients in a wrongful death lawsuit, calling Rosenthal’s conduct “corrupt and abusive,” which they argue should result in dismissal of the suit.

The firm of Colvin, Chaney, Saenz & Rodriguez, L.L.P., who represents Union Pacific, and attorney Mitchell C. Chaney, who represents Ortegon, say that the request for sanctions that they filed in January against Rosenthal and his clients is what led Rosenthal to request that 197th District Judge Migdalia Lopez be removed from hearing the lawsuit that he filed on behalf of Viviana Sosa and others in Willacy County.

Rosenthal alleges that Lopez is biased toward the railroad company and Ortegon. He further alleges that she acted improperly in February 2010, while the lawsuit was pending, when he says she called him to a lunch meeting and asked him for a $2,500 campaign contribution.

He alleges she also told him that defense attorneys and Union Pacific could help her in her political endeavors. Rosenthal states that the lunch meeting was arranged by former state District Judge Abel C. Limas, and that Limas was present at the meeting.

Attorneys for Union Pacific and Ortegon maintain that Rosenthal wants Lopez disqualified to avert a hearing on their January request that he and his clients be sanctioned for what they called “egregious ethical violations” in connection with the Sosa case.

The defense attorneys say that Rosenthal filed the motion to recuse Lopez just before the date of a scheduled hearing in order to delay the hearing and any possible sanction.

They say that Rosenthal has propensity to engage in “dishonest, abusive and wasteful litigation tactics” in this and prior reported cases which they say would strongly indicate that the alleged facts supporting his motion of recusal are most probably “entirely fictional” or, at the very least, that he grossly mischaracterized the alleged events.

Senior Appellate Judge Linda Yañez said Wednesday that she would rule on Rosenthal’s motion by Monday.

During the hearing Wednesday in Willacy County regarding Rosenthal’s request that Judge Lopez be recused, defense attorneys stated details of their January motion and brought up instances in which they said Rosenthal had been sanctioned.

Asked by the defense at Wednesday’s hearing if being sanctioned for misconduct was routine for him, Rosenthal said he wouldn’t say it was a practice if there were only two sanctions from hundreds of cases he has successfully tried.

Rosenthal said he is one of the most successful and decorated attorneys in the country.

He also asked why the defense was fighting so hard to keep Lopez on the case. “Why hasn’t she recused herself?” Rosenthal asked.

“Thou protest too much,” he told defense attorneys.

Following the hearing, Rosenthal alleged that defense attorneys are “in cahoots” with the U.S. attorney’s office.

Rosenthal stands charged in a 13-count federal indictment alleging racketeering, tampering with a witness and proceedings, extortion and mail fraud — all arising from the federal investigation into Limas, former state Rep. Jim Solis and others. Limas has pleaded guilty to racketeering and Solis to extortion. Both await sentencing.

The Sosa case is referenced in the indictment against Rosenthal.

January Motion

Defense attorneys filed the motion for sanctions against Rosenthal and his clients on Jan. 6.

The defense says Sosa’s lawsuit arises from injuries allegedly sustained when a vehicle operated by Matias Sosa Jr. — in which Viviana Sosa, who was pregnant, was a passenger — failed to stop at a railroad crossing in 2007 and drove into the path of a Union Pacific train.

The baby died. According to the Texas Department of Public Safety’s accident report, Sosa Jr. failed to stop and disregarded a stop sign, thereby causing the accident and resulting injuries.

The defense also states that the train’s event recorder showed that the train was traveling at a lawful rate of speed, brakes were applied in a timely way and that the horn had been sounded.

“Faced with incontrovertible evidence that his clients’ father-in-law had caused the accident by driving directly into the path of Union Pacific’s train, counsel Rosenthal determined to build his clients’ case around fabricated evidence that the horn had not been sounded,” defense attorneys allege.

The defense says that the facts of the case were inconvenient for Rosenthal and that he tried to fraudulently get conductor Frank De La Rosa to say that the horn had not been sounded.

Court records indicate that the defense says Rosenthal enlisted his long-time friend David Seibert to contact De La Rosa. The defense states that Seibert identified himself as “John Weir” and told De La Rosa that he was an employee of the Union Pacific Law Department and that he had been asked by Union Pacific counsel to obtain a statement from De La Rosa.

The defense stated in its motion that De La Rosa didn’t take the bait and told Rosenthal’s friend that the statement he had previously given Union Pacific contained all the information that he knew on the topic.

The court record indicates that the conversation between Seibert and De La Rosa was recorded.

“As critical telephone records would also subsequently reveal, at the very time (or shortly after) Seibert was placing these calls to De La Rosa, he was also placing calls to and speaking with Rosenthal himself,” the defense motion states.

De La Rosa subsequently ascertained that no one representing Union Pacific had ever heard of anyone named “John Weir,” according to the court record.

The defense motion states that Seibert claimed that Rosenthal didn’t solicit him to make the calls and that no information obtained during his conversations with De La Rosa was disclosed to Rosenthal.

“Clearly, Rosenthal crafted a plan to have Seibert make the unethical contact with De La Rosa every step of the way. It is not unreasonable for this court to conclude that Rosenthal requested and/or sanctioned Seibert’s outrageous impersonation of a Union Pacific Law Department employee,” the motion says.

It also states that Rosenthal was the best man at Seibert’s wedding.

The defense states that Rosenthal’s conduct is representative of the “unseemly, corrupt and eminently-sanctionable style of litigation for which Rosenthal has become well-known.”

The defense accuses Rosenthal of using an approach that includes browbeating and trying to intimidate opposing witnesses, and withdrawing a lawsuit in one court and refiling in another to gain an advantage.

In requesting the “death penalty sanction” — dismissal of the lawsuit — defense attorneys said that bad-faith abuses to this degree should never be tolerated, particularly when undertaken in a manner they say is calculated to thwart and hamstring the judicial process for the sole purpose of manufacturing “evidence” to use against the other party.

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