ROSENTHAL APPEALS LOPEZ'S "DEATH PENALTY" ORDER IN RAILROAD CASE, DEMANDS SHE RECUSE HERSELF AND ANOTHER JUDGE BE APPOINTED

By Juan Montoya

Reiterating that Judge District Judge Migdalia Lopez retaliated against him and his clients by imposing a "death penalty" on their negligent-death case against the Union Pacific Railroad and train engineer Ernesto Obregon, Austin attorney Marc Rosenthal charges in his new motion to have Lopez recuse herself from the case because she is no longer fit to sit on the case.
This is Rosenthal's second motion to have Lopez recuse herself. The first motion was based on what Rosenthal called an inappropriate appeal by Lopez for a $2,500 political contribution during a meeting she called to meet with him and convicted 404th District Judge Abel Limas at the Four Corners Restaurant in Brownsville in 2010.
"It seems apparent that the impartiality of Judge Lopez is reasonably questionable in this case, and/or that she has a personal bias and prejudice in this case against plaintiffs’ undersigned counsel of record," Rosenthal states in his motion. "In either event, under traditional notions of fair play and substantial justice, and in order that justice may be done, Judge Lopez should be recused in order that a fair and impartial judge, free of bias and prejudice, may preside over this ease."
The act of retaliation to which Rosenthal refers to is the order Lopez signed on June 20, that imposes “death penalty” sanctions with respect to the entire case, resulting in the dismissal of all of the plaintiffs’ claims which he charges constitutes an "unquestíonable violation" of their constitutional due process rights. The only grounds for the death penalty sanctions set forth in the order cconcerns Rosenthal's alleged misconduct.

The order, he states, is clearly not based on any alleged misconduct or wrongdoing on the part of the plaintiffs. In other words, he states that the order is patently illegal inasmuch as it imposes death penalty sanctions, depriving Viviana Sosa and her husband – who he says are undísputably innocent of any wrongdoing – of their day in court because of the alleged misconduct.

"The act of Judge Lopez in imposing such an order "unfairly resulted in the dismissal of the claims of an innocent mother and father whose baby was killed in a train-car collision allegedly caused by the railroad.

This is a Wrongful death suit resulting from the death of an innocent baby girl who was unborn at the time Union Paciñc’s locomotive collided into the oar in which the baby’s innocent mother was a passenger, causing the baby to suffer a severe brain injury which resulted in her death just days before she was born. One of the primary alleged causes of the train-car collision was the fact as corroborated by the sworn testimony of several eyewitnesses whose depositions have been taken in this case was that Union PaciÍic’s train engineer illegally failed to sound the horn of the locomotive the train approached the highway-rail crossing, thereby failing to warn the driver of the car in which the pregnant mother was a passenger that the train was approaching the crossing.

The railroad crossing was not guarded by cross-arms at the time and the weather was semi-dark and rainy that day.

"As any reasonable person would expect," Rosenthal writes, "given the eyewitness accounts of the train engineer’s failure to sound the horn, (I) naturally became suspicious of defendants’ primary defense to the negligence allegation in this case against Union Pacific regarding the failure of its engineer to sound the horn; that is, Union Pacific's contention that the event recorder on board its locomotive recorded data which shows that the horn was sounded in advance of the highway-rail crossing as required by law."

Moreover, Rosenthal charges that he suspected of skulduggery by Union Pacific in regard to manipulation of the event recorder data, and discovery fraud by the railroad in connection with the event recorder data, which he says has been supported by "Union PaciÍic’s resistance to producing documents and tangible items which have been requested of Union Pacific in the instant case, and which Lopez has unreasonably failed to require Union Pacific to produce to plaintiffs through the discovery process in this case." 

His motion states that as the plaintiffs’ attorney became closer to completely uncovering the railroad’s "fraudulent scheme" which involved manipulation of the event recorder data by the railroad to make it appear that the locomotive horn had been sounded immediately prior to the railroad crossing where the crash occurred – which included revealing toLopez and the railroad’s attorneys what Rosenthal's railroad/event recorder expert suspected about such fraud on the part of the railroad – the railroad’s attorneys filed the motion for sanctions which resulted in the "spacious" order dismissing the lawsuit. 

"This  act by Judge Lopez unfairly resulted in the dismissal of the claims of an innocent mother and father whose baby was killed in a train-car collision allegedly caused by the railroad," Rosenthal charges.

 ln fact, he states that Lopez, after conducting a hearing on the defendants’ motion for sanctions, capriciously signed the order, which was wholly drafted and given to her (as a “Wish List”) by the railroad’s attorneys.

"The order," he said, "unquestionably contains certain 'findings' of fact and conclusions of law which are patently unsupported by any evidence and/or which are contrary to the evidence produced by both sides in the case."

These “flndings” in the order are simply exaggerated and frivolous allegations that the railroad’s attorneys wrote up against Rosenthal and asked Lopez to in essence close her eyes and sign.

"Amazingly, he charges, "in a breach of the trust which the voters of Cameron and Willacy Counties placed in Judge Lopez, the Judge apparently succumbed to the pressure of her friends and supporters – the Railroad and the attorneys who represent the Railroad in this case – and simply signed the order that the railroad’s attorneys put in front of her to sign."

The defendants in the case are represented by the law firm known as Colvin, Chaney, Saenz & Rodriguez, L.L.P. Attorney Mitchell C. Chaney is one of the named partners of that law firm.The original case was filed on January 14, 2009.

Rosenthal says that on or about February 15, 2010, while the case was pending, Lopez contacted him through an intermediary (Limas) who was of counsel to Rosenthal’s law at that time. He says Lopez made it known to Rosenthal that she wished to meet him for lunch in Brownsville the next day at the Four Corners Restaurant because she had something important to discuss with him. During this lunch meeting, Rosenthal sayst that Lopez brought up the fact that Chaney (who represents the defendants in the railroad death case) previously gave her a $1,000 campaign contribution, and stated that Chaney’s law firm is a firm where she may practice law one day.

Lopez is then said to have explained to Rosenthal that she liked Chaney’s law firm and one of its clients –  Union Pacific Railroad – because of what they had the potential to do to help her in her "continued political endeavors."

Rosenthal says that Lopez then asked him to give her a $2,500 political contribution and made him feel that "like he would not be treated fairly in her court if he failed to make such a campaign contribution."

Lopez told Rosenthal not to mention anything to anyone about what they had discussed at that lunch meeting, and indicated to Rosenthal that something had could happen to his clients’ case if he told anyone about their conversation.

Rosenthal told Limas – who was sitting at the same table with Lopez and him – that he was contemplating the tiling of a complaint against Judge Lopez with the State Commission on Judicial Conduct. Limas reportedly replied that Lopez would certainly find "a way to damage his clients’ case if he mentioned anything to anyone."

"In the event that Judge Lopez fails to immediately recuse herself," Rosenthal pleads, "plaintiffs hereby request that Judge Lopez immediately request of the presiding judge of the administrative judicial district that he assign a judge to preside over a hearing on the motion" to have her recuse herself."