Firm News and Information

The information provided on this website is provided for general informational purposes only and is not legal advice, and is subject to change without notice.

 

Gregg Lytle Joins Firm

We are pleased to announce that Gregg Lytle has joined the Firm as a Partner. Gregg has 12 years experience as a trial lawyer with expertise in medical negligence, employment, torts and commercial litigation. Gregg is a multi-year listee as a Super Lawyer® - Rising Star, and is licensed in Oklahoma, Texas and Colorado. Please check out Gregg's bio here: Gregg J. Lytle 
 

DRI Article Co-Authored by Scott McDaniel

Scott McDaniel's article "Misuse of Estimates in Forensic Delay Analysis" co-authored with Eric Fruchtman, P.E., was published in the February 2017 issue of the Defense Research Institutes's "For the Defense."  Contact our office to receive a copy of the article. 
 

Rhiannon Baker Joins Firm

The Firm is proud to announce that Rhiannon Baker has joined our team as an Associate Attorney. Rhiannon brings significant depth to our practice gained through her years working in one of Tulsa's larger defense firms as well as her distinguished service as Law Clerk to the Honorable U.S. Magistrate Judge Paul Cleary. She will focus her practice in civil litigation, including representing clients in professional liability defense, construction and environmental litigation, and family law matters. Please check out Rhiannon’s full bio here: Rhiannon K. Baker 
 

Melissa East Joins Firm

The Firm is proud and excited to announce that Melissa East has joined the Firm as an Associate Attorney. Melissa graduated from the University of Tulsa College of Law in 2007, having earned numerous honors. She brings her nine years of experience in litigation, appeals and estate planning to our practice. She will continue her focus on complex litigation and family law. Please check out Melissa’s full Bio here: Melissa A. East  
 

McDaniel and Calhoun Named Super Lawyers

We are proud to announce that two of our attorneys have been named Super Lawyers®  for 2015. Scott McDaniel was designated a Super Lawyer® in civil defense litigation, and Miranda Calhoun has been named a Rising Star® for the second consecutive year. For more on the selection process, see http://www.superlawyers.com/about/selection_process.html.  
 

Scott McDaniel's Article on Immunity for Design Professionals Published in the Journal of American Law

The spring 2015 Issue of the Journal of American Law included a recent article written by Scott McDaniel and Andrew Conway entitled “Architect and Engineer Immunity Under Worker’s Compensation Statutes – a 50-State Survey.” In their article, McDaniel and Conway discuss the little known defense available under certain states’ worker compensation statutes that grants immunity from construction worker injury claims to design professionals who provide construction phase services. The article discusses the application of the immunity defense, and identifies those states that have adopted the immunity defense in some form. If you would like to receive a copy of the article, please e-mail Scott McDaniel at smcdaniel@ok-counsel.com.  
 

Firm Obtains Reversal on Appeal and Entry of Judgment in Favor of Client

The Oklahoma Court of Civil Appeals ruled in favor of our client, a residential developer, and reversed a summary judgment entered against the client in the trial court. The plaintiff was a vendor to the general contractor hired by the client to build a development. The client paid for the vendor’s work, but the general contractor became insolvent before paying the vendor. The trial court ruled that the client was bound to pay the vendor’s invoice and granted summary judgment. The appellate court reversed and ruled that in the absence of a materialman’s lien or a contract between the client and the vendor, the client had no duty to pay. Furthermore, because the client had paid the general contractor for the vendor’s work, and thus, had not been unjustly enriched, judgment should be entered in the client’s favor.  
 

Acord and Calhoun Named Rising Stars

We are pleased to announce that Stacy Acord and Miranda Calhoun have been named as 2014 Super Lawyers Rising Stars for Oklahoma. This is Stacy's fifth year on the list and Miranda's first year. This honor is limited to no more than 2.5% of attorneys in the state.  Look for the full list in "Super Lawyers" and in "Oklahoma" magazine.  
 

Firm Obtains Significant Summary Judgment for Manufacturing Client Faced with Construction Injury

The Firm obtained a significant victory for a manufacturing client recently in the U.S. District Court for the Eastern District of Oklahoma.  The Client is a multi-national manufacturing company that employs a staff of Architects, Engineers and Construction Managers to handle its capital projects from the design phase through bidding and construction management.  The Client undertook a significant plant reconfiguration at its facility in eastern Oklahoma.  During the course of the project, an employee of one of the construction contractors suffered catastrophic and permanently disabling injuries resulting from his fall from newly erected structural steel framing.

In addition to recovering workers' compensation benefits through his employer, the injured employee sued the Client alleging negligence and negligence per se based on the Client's alleged failure to cure and warn the plaintiff of dangerous conditions on its premises, conducting inherently dangerous activities, failure to train and supervise the workers, failure to inspect, and failure to implement an appropriate safety program.  Had the case gone to trial, the evidence would have shown that the Client had in place a proper safety program, and that it took appropriate steps to require its contractors to fulfill their contractual and legal obligations to train their employees and to implement and enforce safety programs, including proper fall protection.  The evidence also showed that the direct causes of the plaintiff's accident were his repeated refusal to heed his supervisors' directives and his failure to tie-off his safety harness.

The District Court cut the case short by sustaining the Client's Motion for Summary Judgment. The Client grounded its Motion on two elements -- first, the undisputed fact that although the Client was the premises owner, it also served as the Architect and Engineer for the project; and second, that the exclusive remedy provisions of Oklahoma's Workers' Compensation Act precluded plaintiff's negligence claims as a matter of law. As a general proposition, an Architect or Engineer should carefully analyze any decision to assert its status as a "Principal" or "Statutory Employer" for purposes of seeking immunity under workers' compensation laws given that many states' schemes provide that the immunity carries with it secondary liability for paying compensation benefits. However, Oklahoma, like several other states across the country, enacted a special provision within its Act specifically addressing the broad scope of potential liability facing Architects and Engineers for construction worker injuries. Okla. Stat. tit. 85, § 12(iv) (2009) provides:

For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for the service performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.

Thus, while the immunity does not extend to negligent design claims, the statute allows Architects and Engineers to assert Statutory Employer immunity for workers' injuries without any concomitant risk of workers' compensation liability. Among the states with similar statutory provisions are Connecticut, Florida, Kansas, and Washington. The cases reflect that an exception to the immunity rule arises if the Architect or Engineer explicitly undertakes the responsibility for jobsite safety.

The District Court's judgment in this case is significant in that there were no reported cases of any court applying Oklahoma's statutory Architect/Engineer immunity despite its presence on the books for decades. The Court granted the Client judgment on all of the plaintiff's negligence theories despite the Client's status as both the premises owner and the Architect/Engineer. The Plaintiff failed to raise the "dual capacity" or "dual persona" doctrine in an effort to preserve his premises liability claims against the Client presumably in light of the fact that with the Legislature's expansion of the scope of protection under Oklahoma's workers' compensation scheme, the Oklahoma courts generally look upon the doctrine with disfavor.

 

Acord Named Rising Star

We are pleased to announce that Stacy Acord was named a Super Lawyers Rising Star for the fourth year in a row.  The prestigious publication recognizes each State's top up-and-coming lawyers chosen by their peers and independent research.  No more than 2.5% of Oklahoma's lawyers are named to the Rising Star list.  Look for Stacy's profile in "Super Lawyers" and in "Oklahoma" magazine.  

McDaniel Acord Named as Go-To Law Firm

Thank you to our clients for nominating us to Corporate Counsel magazine's 2013 list of Go-To Law Firms at the Top 500 Companies for Tort Litigation.

Acord Named Rising Star

Congratulations to Stacy Acord who was named a SuperLawyers Rising Star for the third year in a row.  The prestigious publication recognizes each state's top up-and-coming lawyers chosen by their peers and independent research.  No more than 2.5% of Oklahoma's lawyers are named to the Rising Star list.  Look for Stacy's profile in "SuperLawyers" and in "Oklahoma" magazine.

MLA Joins Professional Liability Defense Federation

MLA and Scott McDaniel recently accepted an invitation to join the Professional Liability Defense Federation, a non-profit organization devoted to the defense of malpractice claims.  The PLDF is made up of insurance, claims and legal experts across the country who share their claim management and strategy expertise to further both the prevention and defense of professional liability claims.  We are pleased to become part of PLDF and the value of our association will bring to our expanding representation of design professionals, attorneys and insurance carriers in this increasingly high stakes field.

MLA Joins Claims and Litigation Management Alliance

MLA is pleased to announce that Stacy L. Acord and the firm are now members of The Claims and Litigation Management Alliance (CLM). Membership to CLM requires nomination by a Fellow of the organization and is an inclusive, collaborative organization that promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM's Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.TheCLM.org.

Important Victory for Food Products Client

We are pleased to share another significant victory obtained for a Client in the food products industry. In a case involving a tragic workplace injury, the Federal District Court agreed with our Client's position that the circumstances of the accident did not give rise to the intentional tort exception, and therefore, the employee's sole remedy lies within the mandatory workers' compensation system. Congratulations to our team members whose hard work and analysis prevailed in the end.

Acord Named Rising Star

Congratulations to Stacy Acord who was named a SuperLawyers Rising Star for the second year in a row. The prestigious publication recognizes each state's top up-and-coming lawyers chosen by their peers and independent research. No more than 2.5% of Oklahoma's lawyers are named to the Rising Stars list. Look for Stacy's profile in "SuperLawyers" and in "Oklahoma" magazine.

Judgment Affirmed for Products Client

We are pleased to report that we have assisted another of our clients in achieving a successful outcome in a products liability case. Our client, a member of the heavy vehicle components industry, was among a group of defendants alleged to be responsible for causing a heavy vehicle fire, in response to which a firefighter was seriously injured. The Oklahoma appellate court recent upheld the trial court’s grant of summary judgment to the client based upon a lack of causation and duty. Congratulations to the team!

Landmark Employment Class Reversed

On June 20, 2011, the United Supreme Court reversed the 9th Circuit’s certification of an employment class in the landmark Wal-Mart v. Dukes case, which if affirmed would have constituted the largest employment class action in history. In Wal-Mart, the respondent sought the certification of a class comprising of over one and half million, current and former, female employees of Wal-Mart, who alleged that the discretion exercised by their local supervisors over pay and promotion violated Title VII by discriminating against women. The Supreme Court found that certification of such a class was inconsistent with Fed. R. Civ. P. 23(a)(2), which requires proof of common “questions of law or fact” amongst the class members, and further held that the back-pay claims sought were also improper under Fed. R. Civ. P. 23(b)(2), as they were not incidental to the injunctive or declaratory relief sought by the proposed class.

High Court Affirms Decision on Behalf of Client

In conjunction with our co-counsel, Sherry Bartley of Mitchell, Williams, Selig, Gates and Woodyard of Little Rock, our lawyers achieved a significant victory for one of our food industry clients. Commenced in 2003, the mass tort case involved allegations of cancer caused by a long-standing agricultural practice in western Arkansas. In the second jury trial of the bellwether plaintiff’s claims in 2009, we obtained a directed verdict at the close of the plaintiff’s evidence. The verdict, as well as several rulings by the Trial Court regarding the admissibility of evidence and certain plaintiff’s experts’ opinions was appealed to the Arkansas Supreme Court, which recent affirmed the decision. It has been a long road, but we are pleased that our client obtained the correct result.

Acord Named Rising Star by Super Lawyers

MLAK is pleased to announce that Stacy Acord has been named a Rising Star by the prestigious 2010 Oklahoma Super Lawyers publication. No more than 2.5% of Oklahoma lawyers are named to the list. Each year the publication chooses lawyers who have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field. View Stacy’s profile in the current issue of Oklahoma Magazine or Oklahoma Super Lawyers magazine or by clicking on the Super Lawyers icon.



Court Clarifies Pre-lien Notice Deadline

Contractors now have a concrete timeline as to when a pre-lien notice must be filed. Oklahoma contractors are required to issue pre-lien notices in order to secure their interests in a property on which they are providing materials and/or labor. The statute governing the notice requires that it be sent “no later than seventy-five (75) days after the date of supply of material, services, labor, or equipment…” The statute does not state whether the pre-lien notice must be sent 75 days after the first date or last date that material or labor was supplied. Recently, the Oklahoma Court of Civil Appeals decided that the “statute requires pre-lien notice be sent no later than 75 days after the last day the lien claimant supplied labor, services, materials or equipment on the project.” If you have questions on this or another lien-related issue, feel free to contact an MLAK attorney.

Avoiding Liability for Employee Blogging

Nicole Longwell recently spoke to the Tulsa Equal Employment Opportunity Coordinators Association (TEEOCA). Her presentation provided guidance on how to avoid liability with regard to employee use of Twitter and other social networking sites. Over 1.6 million posts are made to blogs daily. In those blogs, employees reveal personal information, and may also reveal confidential company information or create public relations issues. Ms. Longwell’s presentation covered recent case decisions dealing with claims against employers by third parties for blogs by their employees. She also discussed some of the more recent public relations nightmares involving Twitter.

Victory for Poultry Industry

In a recent trial of the first of approximately 130 toxic tort plaintiffs asserting that the agricultural practice of land applying poultry litter as fertilizer caused a wide array of cancers among the population of a small community in Washington County, Arkansas, Scott McDaniel, Nicole Longwell and Philip Hixon, achieved a directed verdict for their poultry industry client.

The plaintiffs attacked the defendant poultry companies’ long-term but periodic use of an FDA-approved feed additive, 3-Nitro® that contains organic arsenic. The plaintiffs contended that poultry that had been fed this additive excreted both organic and inorganic arsenic in the manure, which was then transported through the community in the wind as local farmers spread the poultry litter on pastures to raise forage for grazing cattle and hay.

The bellwether plaintiff was diagnosed with Chronic Myloid Leukemia in 1999 as a minor and is currently in remission. The plaintiffs attempted to establish that a cluster of childhood leukemias resulted from this decades-old practice in the area, but failed to establish any exposure to any feed byproducts or litter associated with Bartley and McDaniel’s client.

After the court granted a directed verdict for the firm’s client, the case proceeded against three other members of the poultry industry who established the flawed sampling and analysis by the plaintiffs’ experts, as well as epidemiological evidence that arsenic exposure, even if established, does not cause CML, resulting in a defense verdict. This is the second trial of the bellwether plaintiffs’ case; the first one was against the feed additive manufacturer in 2006, which also resulted in a defense verdict.

Acord Wins Award

We are pleased to announce that Stacy Acord has been honored as a recipient of The Journal Record's Achievers Under 40 award. Stacy is among a select group of Oklahomans recognized by the newspaper each year for their significant contributions to their state and community. Stacy was one honoree selected from over 170 nominees for the award. Along with the award, Stacy received a $5000 scholarship from the Meinders School of Business at Oklahoma City University, which can be transferred to a person of her choosing.

Congratulations Scott!

We are proud to announce that Scott McDaniel is a recipient of the inaugural Leaderhip in the Law award. McDaniel earned the honor through his contributions to the legal profession and his years of community service, including over nine years on the Board of Education for Union Public Schools. Scott received the award May 2 at the Tulsa County Bar Association's Law Day Luncheon.

One of Nation’s Largest Poultry Companies Raided

Employers continue to struggle with their legal responsibility under immigration laws following raids on five Pilgrim’s Pride plants on April 16, 2008. Pilgrim’s Pride apparently knew in advance about the raids by U.S. Immigration and Customs Enforcement agents. According to authorities, ICE was tipped off by Pilgrim’s Pride about an alleged scam to provide fake identification for illegal immigrant workers. Ray Atkinson, a spokesperson for Pilgrim’s Pride stated the company approached ICE with the information about an identity theft scam at its Batesville Arkansas plant. According to Atkinson, no criminal or civil charges have been field against the company. In addition to the raid at Pilgrim’s Pride, federal immigration agents raided a Houston doughnut plant and arrested a Buffalo business man and his nine associates for employing illegal aliens in seven Mexican restaurants in four states. At the Houston doughnut plant, approximately 30 workers were arrested according to the agent in charge from the Houston ICE office. Immigration agents picked up another 45 illegal immigrants in New York, Pennsylvania, Ohio and West Virginia who were employed by the Buffalo based Mexican restaurant. According to authorities, the illegal immigrants were forced to pay off smuggling fees and rent by working long hours with very little pay. The owner is being charged with conspiracy to harbor illegal aliens. There are lessons to be learned by employers from these recent raids by ICE. As every employer is aware, even when following the regulations set out by ICE an employer can still find itself in a precarious position. Employers must undertake a thorough fact specific analysis with every employee in order to balance the competing interests of complying with the immigration employment laws and avoiding potential discrimination claims. Even if an employer is presented with what appears to be authentic documentation, there may be signs that the employee is not who they represent themselves to be. However, to not hire or retain that employee with proper documentation, albeit potentially fraudulent, may constitute discrimination. Most employers within the food manufacturing industry have dealt with this dilemma in the past. The lesson learned from Pilgrim’s Pride’s conduct is one of reporting rather than resting on the documentation. The fact that Pilgrim’s Pride reported this alleged identity theft scam to ICE may turn out to be its saving grace. However, on the other hand, the lesson learned from the Buffalo businessman is that by knowingly employing illegal immigrants and harboring those immigrants, an employer will most surely face civil and/or criminal charges.

Employer Guidance for Employees with Cancer

Cancer can be a disability under the Americans with Disabilities Act (“ADA”) and employers must be aware of an employee’s rights when faced with a cancer diagnosis. The Equal Employment Opportunity Commission (“EEOC”) has recently issued guidance which addresses cancer as a disability (http://www.eeoc.gov/press/7-26-05.html). According to the study, “Employment Pathways in a Large Cohort of Adult Cancer Survivors,” which appeared in the journal Cancer, 41 percent of men and 39 percent of women out of 1,433 cancer survivors, study stopped work during cancer treatment. Consequently, 84 percent of those surveyed returned to work after four years with the majority doing so during the first year after treatment. In a statement made by EEOC Chair Cari M. Dominquez, “cancer no longer is the ‘death sentence’ it was a century ago…[y]et people recently diagnosed with cancer and those with a history of cancer still experience discrimination at work based on old stereotypes and unfounded fears.” The EEOC guidance addresses: (a) when cancer is considered a disability under the ADA; (b) when an employer is permitted to ask an applicant or employee about cancer; and (c) what types of accommodations are considered reasonable for employees with cancer. According to the EEOC, cancer is a disability under the ADA when one or more of a person’s major life activities have been substantially limited by the cancer or its side effects. The EEOC guidance provides examples of how cancer might impact an employee’s major life activities such as the ability to care for one’s self or the ability to reproduce. Moreover, when an employee has a record of cancer, that employee may also be protected if he/she is perceived as still being disabled. Employers need to take care that they don’t treat any individual with cancer as if the disease is limiting a major life activity even if it is not. Often this type of conduct is referred to as “regarded as” having a disability, which in turn provides that employee protection under the ADA.

Pursuant to the EEOC guidance, an employer cannot ask an applicant about cancer or cancer treatment prior to making a job offer. An employer cannot ask follow up questions of an applicant if that applicant discloses information about cancer unless the employer reasonably believes that the individual may need an accommodation. An employer cannot tell other employees that their co-worker is being allowed certain accommodations because their co-worker has cancer. Moreover, an employer can only ask an employee if cancer may be affecting their ability to do the job when the employer has a legitimate reason to believe this is the case.

The types of accommodations needed by an individual suffering from cancer include things such as leave for a doctor’s appointment, recuperation time after treatment, and permission to work from home. Most of the accommodations that a person with cancer might need involve little or no cost to the employer. Employers should keep in mind, as with all impairments protected by the ADA, that whether an employee has cancer, a record of cancer or is regarded as being treated for cancer, reasonable accommodations must be made on a case-by-case basis.

MLAK Named AM Best Firm

MLAK is proud to announce that it has been rated and included in the Best's Directory of Insurance Attorneys, an exclusive listing available only to those firms meeting a specific standard of excellence. A.M. Best's staff thoroughly examines all listees to ensure only the most elite firms and individuals are included. The Best Directory has been the premier reference tool for locating qualified insurance counsel for over 75 years.

Schools Punishing Out-Of-School Conduct

Parents have yet another reason to closely monitor their children’s activity on popular social networking sites – their postings could land them in hot water at school. The U.S. District Court for the Western District of Washington upheld a school suspension of a student who secretly videotaped his teacher. According to the School Law Reporter, the student’s posting on YouTube.com showed the teacher from behind while other students made inappropriate gestures. The video also included a song entitled “Ms. New Booty.” The school suspended the student for 40 days, with 20 days held in abeyance until the student completed a writing assignment.

While the Court agreed that the student had a right to free speech, including the right to comment on the competence of his teachers, it upheld the suspension because the student violated the school’s sexual harassment policies and a policy against the use of electronic devices in school. The Court noted the student’s right to critique his teachers must be balanced against the school’s responsibility to provide a safe and supportive learning environment.

The U.S. District Court for the Western District of Pennsylvania reached a similar ruling in a case involving a student posting on MySpace. The student created a parody profile of his principal on the networking site during non-school hours and without using school resources. After hearing, the school imposed a ten-day out-of-school suspension, alternative school placement for the remainder of the year, a ban from school events and a prohibition on the student’s participation in graduation ceremonies. The student filed a lawsuit alleging violation of his free speech rights as well as other claims, and seeking an injunction to prevent the school from imposing the punishment. The court noted that the school presented evidence that the parody caused substantial disruption of the day-to-day operation of the school. The court found that the student was not likely to succeed on the merits of his claim and denied the request for injunction, effectively upholding the disciplinary action.