Joseph L. Hood Jr.

EL PASO, TEXAS

Fax 915-545-4911

Email: hood@windlehood.com

AREAS OF PRACTICE:

• Commercial Litigation
• Products Liability Law
• Bad Faith Litigation
• Toxic Torts
• Municipal Civil Rights
• Municipal Liability Defense
• Premises Liability and Apartment Liability Litigation
• Employment Litigation

PROFESSIONAL EXPERIENCES

• 1982-1983: Law Clerk, Justice W. Sears McGee, Supreme Court of Texas.
• 1983 to 2007: Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C.
• 2007 to the Present: Windle Hood Norton Brittain & Jay, LLP
• I became a partner at Scott Hulse in January of 1988, and was a shareholder in the firm from its incorporation in January of 1989 until I left in August of 2007 to start my present firm with five of my former partners. I am Board Certified by the Texas Board of Legal Specialization in both Civil Trial and Civil Appellate Law, and a member of the American Board of Trial Advocates. I have a general practice focusing upon litigation matters of all types. I have tried more than fifty cases to verdict in state and federal courts in Texas and New Mexico and I have briefed and argued appeals as lead counsel before the Texas courts of appeals, the Supreme Court of Texas, and the United States Court of Appeals for the Fifth Circuit. In addition, I have arbitrated securities and employment-related disputes on behalf of member firms before the Financial Industry Regulatory Authority (formerly known as the National Association of Securities Dealers) and the New York Stock Exchange, and represented individual registered representatives in disciplinary matters. My firm and I also counsel individual and institutional health care providers on regulatory compliance and criminal matters.

NOTEABLE CASES

• Represented El Paso affiliates of HCA in connection with execution of search warrants at 11 separate facilities in March 1997 and in spin-off litigation from criminal investigation, including a consumer class action relating to physical therapy services, related qui tam litigation, litigation arising out of multiple physician recruitment agreements, and a state-court suit in which physician limited partners attempted to dissolve a hospital-physician partnership and force the sale of two acute care hospitals and related facilities.
• Represented Tenet Healthcare Corporation in qui tam litigation arising out of its hospitals’ claims for outlier payments and relationships with physicians. See United States ex rel. Lam v. Tenet Healthcare Corp., 481 F. Supp. 2d 689 (W.D. Tex. 2007) (dismissing kickback claims with prejudice); United States ex rel. Lam v. Tenet Healthcare Corp., 481 F. Supp. 2d 673 (W.D. Tex. 2006) (dismissing kickback claims).
• Represented Merrill Lynch in numerous customer arbitrations following the firm’s regulatory settlement with New York Attorney General and Securities and Exchange Commission relating to research analyst reports. In one such case, Kaizad and Freny Rajkotwala et al. v. Merrill Lynch, Pierce, Fenner & Smith Incorporated, NASD No. 03-0841, we successfully defended the firm in a case brought by seventeen claimants seeking a total of more than $3.7 million. In another, Fernando and Gilma Rivas v. Merrill Lynch, Pierce, Fenner & Smith Incorporated, NASD No. 03-08671, the Panel dismissed the claimants’ case, recommended expungement of the claim from our individual clients’ CRD records, and award Merrill Lynch attorneys fees and costs incurred in defending the case.
• Successfully defended Service Corporation International and its affiliates in putative consumer class action relating to pricing disclosures for funeral services under Federal Trade Commission Funeral Rule and related Texas laws. See In re SCI Texas Funeral Services, Inc., 236 S.W.3d 759 (Tex. 2007) (vacating discovery sanctions issued by trial court); SCI Texas Funeral Services, Inc. v. Hijar, 214 S.W.3d 148 (Tex. App.—El Paso 2007, pet. denied) (dismissing class damage claims and decertifying class). Following the court of appeals’ decertification of the class and dismissal of the named plaintiffs’ damage claims, the named plaintiffs voluntarily non-suited their claims with prejudice. David Hijar et al v. SCI Texas Funeral Services, Inc., et al., Cause No. 2002-740 in the County Court at Law No. Three of El Paso County, Texas.
• Successfully defended Crawford & Company in an adjusting malpractice case arising out of a multi-million dollar property damage claim paid by Asagudora Mexicana or “ASAMEX,” a large Mexican casualty insurer.After a two-week trial, the jury returned a verdict in Crawford’s favor in less than one hour on all six claims ASAMEX asserted. Asaguradora Mexicana, S.A. v. Crawford & Company, et al., Cause No. 95-2955 in the County Court at Law No. Two of El Paso County, Texas.
• Successfully defended Ford Motor Company in civil penalty action brought by the Department of Justice to recover $42 million NAFTA record-keeping penalty assessed by Department of Homeland Security, U.S. Customs and Border Protection. See United States v. Ford Motor Co., 516 F. Supp.2d 770 (W.D. Tex. 2007) (denying motions to dismiss). After the completion of discovery, the government voluntarily stipulated to the dismissal of the case with prejudice.
• Successfully challenged rules adopted by a Chapter 36 groundwater district which effectively deprived certain landowners of the ability to produce groundwater. See Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008). In a related proceeding, we successfully disqualified the client’s former counsel from representing landowners with competing interests. See Cimarron Agricultural Ltd. v. Guitar Holding Co., L.P., 209 S.W.3d 197 (Tex. App.—El Paso 2006, no pet.).
•  Represented the petitioner in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), the first case in which the Supreme Court of Texas addressed the propriety of an award of attorney’s fees using the lode star method. Accepting our argument, the Court unanimously held that prevailing plaintiffs seeking attorney’s fees must provide contemporaneous documentation of the number of hours claimed in their fee application. The Court reversed an award of $464,000 for not meeting this standard.
• Represented Chevron in the trial of one of the first (and few) enforcement actions brought by the government under the Clean Air Act. See United States v. Chevron, U.S.A., Inc., 639 F. Supp. 770 (W.D. Tex. 1985).

OTHER REPRESENTATIVE CASES

• Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999).
  This was a suit brought by a pharmacist, who was fired for illegal drug use. The trial court and court of appeals rejected his claims and accepted our argument that simply completing a rehabilitation program does not mean an employee who formerly used drugs is not a “current user” of illegal drugs under the ADA.
• Martinez Tapia v. Chase Manhattan Bank, N.A., 149 F.3d 404 (5th Cir. 1998).
  This suit was brought by the former Minister of Finance for the State of Durango, Mexico, arising out of investments he had made in a real estate fund and unit trust organized by Chase’s off-shore affiliates in the Bahamas. The trial court and court of appeals accepted our arguments that his claims were barred by limitations due to disclosures he received at the time of the transactions, as well as our claim that the Bank’s representatives did not owe him a fiduciary duty.
• Arkwright Boston Mfrs. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174 (5th Cir. 1988).
  We successfully defended Westinghouse in a product liability/UCC warranty case brought by the boiler insurer for the El Paso Electric Company. The trial court and Fifth Circuit accepted our arguments that the disclaimers of implied warranties and exclusive remedies in the parties’ agreement were enforceable under the UCC.
• Larchmont Farms, Inc. v. Parra, 941 S.W.2d 93 (Tex. 1997).
  In this case, the Supreme Court of Texas accepted our argument that the exclusive remedy provisions of the New Jersey Workers Compensation Act operated to bar a non-subscriber suit for personal injuries sustained by an employee who was recruited in Texas to work for a New Jersey-based farming operation.
• Texas Builders v. Keller, 928 S.W.2d 479 (Tex. 1996).
  Here, we were successful in persuading the Supreme Court of Texas that the
• Statute of Frauds barred enforcement of an agreement, which the trial court had enforced resulting in a substantial money judgment against our client.
• Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995).
  Argued the same day as Robinson v. E.I. du Pont de Nemours & Co., this was one of the first cases in which the Supreme Court of Texas questioned the admissibility of expert testimony that was “junk science.”
• Republic Ins. Co. v. Stoker, 903 S.W.2d 338 (Tex. 1995).
  In this case, the Supreme Court accepted our argument that an insurer could not be subjected to extra-contractual “bad faith” liability for denying a claim for a “wrong” reason, if the policy otherwise excluded or did not provide coverage for other reasons.
• Hovorka v. Community Health Systems, Inc., 262 S.W.3d 503 (Tex. App.—El Paso 2008, no pet.)
  In this case we successfully defended Community Health Systems and its affiliated hospital against charges that it fraudulently induced a physician to enter into a recruiting agreement. In addition to defeating the physician plaintiff’s claim, we secured a judgment in favor of the hospital on its counterclaim for recovery of monies paid to the physician.
• American Garment Props., Inc. v. CB Richard Ellis–El Paso, L.L.C., 155 S.W.3d 431 (Tex. App.—El Paso 2004, no pet.)
  In this case we successfully defended a summary judgment our client, a leading real estate broker, obtained awarding him a six-figure commission on the sale of a commercial property.
•  El Paso Healthcare System, Ltd. v. Carmona, 160 S.W.3d 267 (Tex. App.—El Paso), pet. granted without regard to the merits and judgment vacated pursuant to settlement, 2005 Tex. LEXIS 891 (Tex. 2005).
• Union Pacific Railroad v. Loa, 153 S.W.3d 162 (Tex. App.—El Paso 2004, no pet.).
• Phelps Dodge Ref’g Corp. v. Medina, 2003 Tex. App. LEXIS 2366; 21 I.E.R. Cas. (BNA) 872 (Tex. App.—El Paso 2003, pet. denied).
  In these three employment cases, the court of appeals reversed substantial judgments in favor of employee plaintiffs. The judgment in Carmona, an age discrimination case, exceeded $1.6 million; the judgment in the Loa case, a national origin discrimination case, was for more than $2.1 million; and the judgment in the Medina case, a common law wrongful discharge case, was for more than $500,000.
•  Urquidi v. Phelps Dodge Ref’g Corp., 973 S.W.2d 400 (Tex. App.—El Paso 1998, no pet).
  In this case, brought under the anti-retaliation provisions of the Texas Workers Compensation Act, the court of appeals clarified its prior decisions that suggested that an employer’s mere knowledge that an employee has sustained a work-related injury is legally insufficient evidence of retaliatory motive and accepted our argument that such knowledge merely places the employee in the protected class.
•  Prudential Sec. Inc. v. Haugland, 973 S.W.2d 394 (Tex. App.—El Paso 1998, pet. denied).
  In this case we were successful in defending Prudential Securities from claims that its disclosures to the IRS breached the confidentiality provisions of a prior settlement agreement. The court of appeals accepted our argument that the plaintiff bore the burden of demonstrating that he did not owe taxes that the IRS assessed following the settlement.
• City of Socorro v. U.S. Fireworks of America, 842 S.W.2d 779 (Tex. App.—El Paso 1992, writ denied).
  In this case we successfully challenged a city’s attempted exercise of extra-territorial jurisdiction in banning our client’s sale of fireworks outside the city’s limits.
• Jeep Eagle Sales Corp. v. Mack Massey Motors, Inc., 814 S.W.2d 167 (Tex. App.—El Paso 1991, writ denied).
• Dick Poe Motors, Inc. v. Dickey, 802 S.W.2d 739 (Tex. App.—El Paso 1990, writ denied).
  In these two warranty litigation cases, we obtained reversals of substantial, six-figure judgments obtained in by consumers in suits brought against Chrysler under the Texas Deceptive Trade Practices Act.
• Government Employees Insurance Co. v. Lichte, 792 S.W.2d 546 (Tex. App.—El Paso 1990), writ denied per curiam, 825 S.W.2d 431 (Tex. 1991).
  In its opinion in this case, the court of appeals quoted from our brief in holding that an uninsured motorist carrier did could not defend an uninsured tortfeasor in an action brought by its policyholder. Presaging a question that would not arise for more than ten more years, the court of appeals also held that punitive damages were not recoverable against an uninsured/underinsured motorist carrier.

EDUCATION:

• B.A. (1979), University of Texas; J.D. (1982), St. Mary’s University School of Law.

PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS:

• State Bar of Texas
• American Bar Association
• State Bar of New Mexico
• Bar Association of the Fifth Federal Circuit
• Federal Bar Association
• American Board of Trial Advocates
• Texas Association of Defense Counsel
• American Health Law Attorneys