Sunday, April 20, 2008

Texas Supreme Court Tightens Screws on Malpractice Plaintiffs (and their lawyers)


Texas High Court, in opinion written by
Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.

In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.

Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.

THE COMPANION CASES (decided in per curiam opinions)

Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Getting Burnt in Texas: Supreme Court Reverses Jury Verdict for Burn Victim in Product Liability Suit

Bic Pen Corp. v. Carter (Tex. 2008)

Justice Medina writes that federal consumer safety standards bar burnt child from recovering on faulty design claim under Texas common law

Texas Supreme Court holds that federal law implicitly preempts Texas common law tort claim in case in which child sustained third-degree burns on 55% of her body when another child set fire to her dress with a cigarette lighter. Jury awarded several million dollars in damages against manufacturer of the device. Court finds that product design was sufficiently child-proof because it had passed federal standards and state should not be permitted to set more exacting standards through its tort law.
(Federal standards mandate that at least 85 percent of children under age five must be unable to operate disposable lighters.) Texas Supreme Court further suggests that balancing of interests should not be left to the jury which may be more sympathetic to burn victims in individual cases and may not appreciate the countervailing interests of convenience and market acceptance of the cigarette lighter.

The opinion, which also remands an alternative theory of recovery (manufacturing defect) to the court of appeals for closer scrutiny, was written by Justice David M. Medina, himself a recent burn victim, although the exact cause of the fire that burned down the family home (causing only property damage) remains shrouded in mystery and suspicion.

Bic Pen Corp. v. Carter, No. 05-0835 (Tex. Apr. 18, 2008) (Medina) (products liability, design defect claim,
implicit federal preemption of state tort law, manufacturing defect claim)
Matagorda County; 13th district (13-03-00560-CV, 171 S.W.3d 657, 08-18-05)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Medina delivered the opinion of the Court. (Justice Green not sitting)

The Court disapproves the holding that federal law only sets a minimum safety standard and does not grant manufacturers immunity from state common law claims in opinion by Justice Dori Contreras Garza in the court of appeals below: Bic Pen Corp. v. Carter, No. 13-03-00560-CV (Tex. App. - Corpus Christi, Apr. 18, 2008, pet. filed) ("concluding that "the plaintiff's design-defect claim is not an obstacle to the accomplishment and execution of any federal objectives regarding disposable lighters. Any rule of law created by the claim would be in harmony with existing federal standards and further the federal objectives, even if its net effect would be to make lighters safer for children. Accord Colon v. BIC USA, Inc., 136 F. Supp. 2d 196, 208 (S.D.N.Y. 2000) (A[I]t is difficult to construe these [federal] regulations as anything but a mandatory minimum standard with which all manufacturers or importers [of disposable lighters] must comply. By no means, however, should compliance with this minimum standard automatically relieve a manufacturer or importer of state common law liability.")

Is There Room for Felons? David Medina Faces the Issue

Should thieves, firebugs, and other felons continue to serve the public?

In Re Bazan, No. 06-0952 (Tex. Mar. 28, 2008) (effect of prior criminal conviction on privilege to hold public office, third degree felony theft of property by a public servant)

Burning issue commands Justice's attention

Supreme Court Associate Member David Medina looks into the legal aspects and ramifications of a prior criminal conviction on eligibility for holding public office, and delivers opinion that will help keep felons out of government.

Now that his wife, Francisca "the barnburner" Medina, has been re-indicted for torching the couple's Houston-area dream home (thus making the mortgage he could not afford on his state salary go away - albeit with a little collateral impact on the neighborhood), will Medina manage to keep his new Austin abode arson-, accellerant-, and felon-free? At least he has the Chief's prayers to lift his spirits in the endeavor.

In Re Bazan, No. 06-0952 (Tex. Mar. 28, 2008)(Opinion by Justice Medina) (mandamus) (removal of local official based on conviction)

In this original mandamus proceeding, we must decide whether Chapter 87 of the Local Government Code forbids a district court from removing a county officer, who has been convicted of a felony, when the conviction is based on acts that occurred before the officer’s election. The question arises because one section in Chapter 87 provides for the officer’s immediate removal upon conviction, while another seemingly prohibits removal for acts that predate an election.
* * *
The trial court did not abuse its discretion in suspending Bazan from office pending the appeal of his felony conviction.

IN RE EDUARDO "WALO" GRACIA BAZAN; from Hidalgo County; 13th district (13-06 00616-CR, ___ S.W.3d ___, 11-01-06) order issued November 30, 2006, lifted
The Court denies the petition for writ of mandamus.Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, JusticeO'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Johnson joined. Justice Willett delivered a concurring opinion. in In Re Bazan

Saturday, April 19, 2008

Blind Justice: Supremes see no evidence of hazard; give nod to officials' ostrich defense


Blessed be the Ignoramuses | Public Officials' Affidavits of Ignorance Prove Successful in Defending Personal Injury Suits

Following up on their recent decision holding a city harmless for drowning deaths due to flooded roads on the ground the the public works director could not have known of the adverse weather conditions because he was asleep (and thus could not close the roads even though he was supposed to) the Supremes here let a state university off the hook in a suit by a student who broke his knee when he tripped over a water hose on a campus sidewalk.

The eight wise men and one lady saw no evidence that the university had actual knowledge that the obstruction could create an unreasonable risk. The relevant university officials executed affidavits as proof of their ignorance. As for a university manual that advised that obstructions should not be created, the Court deems it irrelevant because it only applied indoors. Detecting no sign that the University actually knew that the water hose across the sidewalk could cause people to fall and be injured, the Supremes reverse both the court of appeals and the trial court, both of which had rejected the university's plea.

The lesson to public officials: Close your eyes, plug your ears, and hold your nose lest you become aware of dangers and assume the obligation and burden to do something to protect the public.

Ignorance is bliss. It will help you defeat the tort claims of those who slip, trip, or drown thanks to newly created Jefferson Court precedent.

UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous condition, actual knowledge element) (defendant state university prevails with ostrich defense)
County; 13th district (13-06-00450-CV, ___ S.W.3d ___, 03-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.

Opinion below:
UTPA v. Aguilar No. 13-06-00450-CV, ___ S.W.3d ___, (Tex.App.- Corpus Christi, March 1, 2007)
( Because there are questions of fact pertinent to the jurisdictional issue, we conclude the trial court did not err in denying UTPA's plea to the jurisdiction, motion to dismiss, and no-evidence motion for summary judgment. Accordingly, we affirm the order of the trial court. . . . Assuming, without deciding, that the duty UTPA owed to Tony was that owed to an invitee, our result would be the same because fact issues remain regarding whether stretching the water hose across the sidewalk posed an unreasonable risk of harm and whether UTPA had actual or constructive (in terms of an invitee) knowledge of the condition.")

Monday, April 14, 2008

Breach of warranty =?= breach of contract

Does breach of express warranty constitute breach of contract? Texas Supreme Court answers in the affirmative. Recovery of attorney's fees thus authorized for successful litigant, along with damages.

Medical City Dallas, Ltd. vs. Carlisle Corp., No. 06-0660 (Tex. Apr. 11, 2008) (Opinion by Chief Justice Wallace B. Jefferson) (breach of express warranty claim, entitlement to attorney's fees)

MEDICAL CITY DALLAS, LTD. v. CARLISLE CORPORATION D/B/A CARLISLE SYNTECSYSTEMS; from Dallas County; 5th district (05-04-00157-CV, 196 S.W.3d 855, 06-27-06)
The Court reverses in part the court of appeals' judgment and reinstates the trial court's judgment.

Chief Justice Jefferson delivered the opinion of the Court.
(Justice Hecht not sitting)

"Because Texas Civil Practice and Remedies Code section 38.001(8) permits an award of attorney’s fees for a suit based on a written or oral contract, and because we conclude that breach of an express warranty is such a claim, the court of appeals erred in reversing Medical City’s attorney’s fees award in connection with its successful claim for breach of an express warranty. Accordingly, we reverse in part the court of appeals' judgment and reinstate the trial court’s judgment. See Tex. R. App. P. 60.2(c)."

Sunday, April 13, 2008

2008-04-11 - Is Interlocutory Appeal Available to Doctors in Medical Malpractice Cases?

... and if so, when and under what circumstances? Texas Supreme Court sides with majority of courts of appeals in resolving issue of interlocutory jurisdiction, i. e. question of whether immediate appeal may be brought by doctor claiming that the Plaintiff's expert report required by the Legislature as part of med-mal tort reform is inadequate.

Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008) (Brister)
(tort, reform, HCLC, medical malpractice, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a concurring opinion.
Justice Don Willett delivered a concurring opinion.

In an effort to stem frivolous suits against health care providers, the Legislature has made a number of changes in the rules of civil litigation. Among them has been a requirement since 1995 for early expert reports,[1] and a provision since 2003 for interlocutory review of those reports.[2] Since adoption of the latter provision, 12 of the 14 courts of appeals in Texas have routinely conducted interlocutory review of allegedly inadequate reports.[3] But two courts have not — the Second and (in this case) the Tenth courts of appeals have held they have no jurisdiction of such appeals.[4]

We have jurisdiction to determine whether a court of appeals has properly declined jurisdiction.[5] Because we agree with the great majority that interlocutory review is proper, we reverse.

2008-04-11 Texas Supreme Court addresses criminal con law issue in juvenile case

Supremes split on Miranda rights of juvenile defendant, requirements for effectively invoking right to counsel.

Because Texas has two courts of last resort - one for civil matter, the other for criminal cases - the Texas Supreme Court does not usually deal with constitutional issues arising from prosecution of crimes. Juvenile cases, however, are an exception.

In the Matter of HV, No. 06-0005 (Tex. Apr. 11, 2008)(Brister) (juvenile law, Miranda warning, requirements for effective invocation of right to counsel)
IN THE MATTER OF H.V.; from Tarrant County; 2nd district (02-04-00029-CV, 179 S.W.3d 746, 11-17-05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.Justice Brister delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice Johnson, and Justice Willett joined.
Chief Justice Jefferson delivered an opinion concurring in part and dissenting in part, in which Justice Wainwright and Justice Green joined, and in which Justice Hecht joined as to Parts I, III, and V.

This is the first appeal under a 2003 statute allowing appellate review of certain orders suppressing evidence in juvenile justice cases.[1] Because the statute contains no express grant of jurisdiction to this Court, we may review such interlocutory orders only if they fall within our general jurisdictional statutes, which were also amended in 2003. Finding that we have such jurisdiction, we affirm the court of appeals’ opinion in part and reverse in part.

Sunday, April 6, 2008

2008-04-04 Two Texas Supreme Court Opinions Issued

Supreme Court helps workers comp insurance carrier recover money from family of electrocuted worker who sued (and settled with) third parties responsible for worker's death

"For decades, Texas law has required the first money recovered by an injured worker from a tortfeasor to go to the worker’s compensation carrier, and until the carrier “is paid in full the employee or his representatives have no right to any funds.”[1] In this case, a $4.5 million settlement was structured so the plaintiffs and their attorney got all the funds and the compensation carrier got nothing. The plaintiffs argue this result is harmless because the carrier can sue the defendants (they do not volunteer themselves) to get the money back. That might give the carrier second or third money, but not first money. As the statute guarantees the carrier first money, we reverse."

Texas Mutual Ins. Co. v. Ledbetter, No. 06-0814 (Tex. Apr. 4, 2008)(Brister) (worker's compensation, subrogation rights, minor settlement, ad litem)

TEXAS MUTUAL INSURANCE COMPANY v. PAULA LEDBETTER, REPRESENTATIVE OF THE ESTATE OFCHARLES WADE LEDBETTER, INDIVIDUALLY AND AS NEXT FRIEND OF DUSTIN WADE LEDBETTER, AMINOR, AND TONJA LEDBETTER AND JAMIE LEDBETTER, INDIVIDUALLY; from Jones County; 11thdistrict (11-05-00098-CV, 192 S.W.3d 912, 06-01-06) 2 petitions; motion for emergency relief from declaratory judgment action dismissed as moot. The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to thetrial court. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, JusticeO'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Willett joined, and in which JusticeJohnson joined as to Parts I through III and Part V.

Court of Appeals Opinion below:
Texas Mutual Ins. Co. v. Ledbetter, No. 11-05-00098-CV, 192 S.W.3d 912 (Tex. App. - Eastland, June 1, 2006, pet filed)

Follow-up per curiam opinion issued in Owens & Minor case, previously decided on certified question from the Fifth Circuit

Ansell Healthcare Products, Inc. v. Owens & Minor, Inc., No. 06-0386 (Tex. Apr. 4, 2008)(per curiam) (product liability, indemnity for litigation costs)

ANSELL HEALTHCARE PRODUCTS, INC. AND BECTON, DICKINSON AND COMPANY v. OWENS &MINOR, INC. AND OWENS & MINOR MEDICAL, INC.; from Bowie County; 6th district (06-04-00136-CV,189 S.W.3d 889, 03-31-06) 2 petitions
Because the court of appeals’ decision conflicts with our holding in Owens & Minor, we reverse its judgment and, without hearing oral argument, remand the case to the trial court for further proceedings consistent with this opinion.

Justice Brister's Darwinism

Let blind men, carefree children, ... and consumers die!

In a particularly crass formulation of the Republican idea of individual responsibility and the denial of communal obligations, Justice Brister finds no legal duty to throw a drowning person a readily available rope, or to intervene quickly to stop a blind man or child from walking into traffic; Leaves it open whether there is even a moral duty for "a mere bystander" to act.

No compassionate conservatism here.

Deciding that an auctioneer was free to sell a car with defective tires [which was later involved in fatal roll-over], Brister approvingly cites World War II precedent for the proposition that the law should take a laissez faire attitude toward those about to be killed:

To wit:

“[A] mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others. Under the last rule, a bystander may watch a blind man or a child walk over a precipice, and yet he is not required to give warning. He may stand on the bank of a stream and see a man drowning, and although he holds in his hand a rope that could be used to rescue the man, yet he is not required to give assistance. He may owe a moral duty to warn the blind man or to assist the drowning man, but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance.” Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942)

New Texas Auto Auction Services, LP. v. Gomez de Hernandez, No. 06-0550 (Tex. Mar. 28, 2008)(Brister) (no auctioneer liability for selling defective car)
NEW TEXAS AUTO AUCTION SERVICES, L.P. D/B/A BIG H AUTO AUCTION v. GRACIELA GOMEZ DE HERNANDEZ, ET AL.; from Hidalgo County; 13th district (13- 03-00728-CV, 193 S.W.3d 220, 04-06-06)The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Brister delivered the opinion of the Court.


Chief Wallace Jefferson recently protested that the Court's jurisprudence is not monolithic, and suggested that treating it as such would do an injustice to the concurrers and dissenters. ("In news reports or in editorial comments or even on the blogs, you get people talking about the court as if it's a monolith. Really the court is comprised of nine individuals.")

This case, though, is not one that provides evidence of the alleged ideological or jurisprudential diversity on the court.

All of the nine Republican incumbents appear to endorse Brister's laissez décéder doctrine, as none of them dissented even from the infamous footnote.