Personal Injury

Published on: December 11, 2014

When Can A Nonparty to A Texas Contract Be Compelled to Arbitrate a Personal Injury Case?

In ENGlobal U.S. Inc. v. Gatlin, a Texas appellate court was asked to decide whether a party to a contract with an arbitration clause could compel arbitration of a personal injury claim by a nonparty to the contract under the doctrine of “direct benefits estoppel.” The case arose from Phillips 66’s ownership and operation of an oil refinery. The operator of the refinery had contracted with Clean Harbor, an industrial service contractor, to clean oil storage tanks at the refinery.

An employee of the industrial service contractor was working as a hydroblaster at the refinery. While working, the lanyard on his safety harness got caught in the walkway, resulting in his fall and back injury.

When the accident happened, ENGlobal was a contractor that performed engineering for Phillips 66. Their relationship was governed by a master service agreement that included an arbitration provision. The employee had not signed this agreement, and he sued Phillips 66, ENGLobal, and another company in order to recover damages. He alleged negligent undertaking and premises liability. Continue reading →

Published on: December 11, 2014

Wrongful Death on the Job in Texas

By Carabin Shaw

Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →

Published on: October 2, 2014

Tractor-Trailer Crashes Into Texas College Bus

By Carabin Shaw

Recently, four people died and over a dozen were hurt in a Texas college bus crash. The accident happened when a tractor-trailer crossed a median in Oklahoma and crashed into the bus, which was transporting a women’s college softball team.

The team was going home after a scrimmage in Oklahoma. Three of the women died at the scene, and a fourth died at a hospital. The sides of the bus were heavily damaged. The National Transportation Safety Board sent investigators to the site, and both the bus driver and the tractor-trailer driver had to take toxicology tests.

A major accident like this can be devastating both physically and financially. When multiple people are harmed, it can be difficult to sort out who should pay and how much should be paid. In general, the party at fault must pay. If the tractor-trailer driver in the situation described above was 100% at fault, its insurer will have to sort out multiple claims against the same policy. It may be possible to reach a global settlement. However, a knowledgeable personal injury attorney will also look into other sources of recovery because a single insurance policy does not always cover all of the injuries, physical and emotional, that arise out of an accident involving multiple fatalities.

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Published on: September 16, 2014

Liability for Dog Bites in Texas

By Carabin Shaw

In Rodriguez v. Reed, a Texas plaintiff appealed the trial court’s summary judgment in favor of the defendant in a dog bite case. The case arose when the defendant was contacted at work that his burglar alarm was going off. He left his workplace and went home. He turned off the alarm and determined nobody had broken in. Meanwhile, police officers came to his house to respond to the alarm call. The call noted that the front glass had broken and that there were multiple dogs in the home.

The defendant’s car was in the driveway when Officer Espinoza and Officer Rodriguez (the plaintiff) arrived. One of the officers determined that the car was the defendant’s. There was no broken front glass. The officers went to the side of the house and came upon a fence with a locked gate. One officer went to the other side. Rodriguez jumped the gate and drew his weapon. At that moment, the defendant opened the back door and let the dogs out. When the plaintiff went around the corner, two dogs came into the yard, and one of them bit the plaintiff in the forearm. The plaintiff shot the dog, killing him. He jumped back over the fence.

The officer sued on the grounds of strict liability, claiming that the dog was known to have abnormally dangerous propensities and claiming that the defendant had negligently handled the dog. The defendant filed a motion for summary judgment that was both traditional and a “no evidence summary judgment motion.” The latter claims there is no evidence to support an essential element of the other party’s claim. The plaintiff filed a response that included statements from the defendant’s neighbors and copies of police records about prior alarm calls to the defendant’s house.

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Published on: September 10, 2014

Personal Injuries at Texas Amusement Park

By Carabin Shaw

Recently, two Texas teens fell over 12 feet off a carnival ride and were injured. One of the two teenagers sustained serious injuries, and the other was left with minor injuries. Some witnesses commented that the ride operator had not shut the door to the ride. The International Association of Amusement Parks and Attractions found that over 1,200 people were injured on rides in 2011.

The amusement parks in Texas operate under the rules of the Texas Department of Insurance. Although there is significant oversight of parks, there are many similar accidents in Texas. The most likely reasons for amusement park injuries are mechanical failures such as lap belts or other restraints that don’t work, operator errors such as improperly maintaining the ride, and customer actions such as standing up or sitting improperly.

If you are hurt on an amusement park ride, you may suffer significant injuries. Three types of liability may apply if you are hurt or a loved one is killed on a ride: negligence, premises liability, and product liability. The most straightforward theory is negligence. In Texas, negligence is conduct that is less careful than what a reasonable person would do to avoid the risks of injury to another. For example, in the case described above, the operator could be found negligent for failing to close the door of the roller coaster ride. Operator error is one of the most common causes of injuries on roller coasters.

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Published on: August 25, 2014

Worker Injured on Former’s Employer’s Premises

By Carabin Shaw

A recent appellate case arose when a plaintiff was seriously burned after falling into a pool of hot water at the defendant’s chemical plant. The plant had multiple manufacturing units, but the facility was owned by DuPont. The unit where the plaintiff was injured was a formaldehyde production unit. Steam was a key part of the chemical production, and both steam and formaldehyde were supplied by D.B. Western, Inc., which built a formaldehyde manufacturing plant on land adjacent to the chemical plant. Steam pipes ran through the DuPont plant, and through them ran formaldehyde and steam from the adjacent plant.

There were steam traps designed by D.B. Western that DuPont and its outside company Spirex Sarco were responsible for maintaining. In 2004, DuPont sold the formaldehyde unit to Invista, and the employees of DuPont working there, including the plaintiff, became Invista employees. Invista had a contract with the same contracting company to purchase the steam and inspect the pipeline system. The plaintiff was burned by hot condensate that was in a pool under a pipeline.

The plaintiff sued DuPont, the owner of the plant, alleging negligence in the design, construction, and maintenance of the pipeline and steam traps, as well as premises liability. With regard to premises liability, the plaintiff claimed he was an invitee of DuPont. The plaintiff’s wife alleged loss of consortium.

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Published on: August 18, 2014

Death of a Minor in Go-Kart Accident in Texas

By Carabin Shaw

Recently, a 14-year-old girl passed away after a go-kart accident outside the Texas Motor Speedway, where she was participating in a go-kart race. The race was sponsored by the Sports Car Club of America. The girl’s go-kart kept going after she crossed the finish line and crashed through a low fence. Her helmet fell off when she crashed. Although she was airlifted to a hospital, she was pronounced dead afterward. It is not known whether the girl lost control because she suffered some sort of medical condition, or if the go-kart experienced a mechanical failure.

If the cause of an accident causing injury or death to a minor is mechanical failure, it may be appropriate to bring a wrongful death lawsuit. In Texas, a plaintiff bringing a product liability suit must prove the product was defective, the product reached the plaintiff without a substantial change in its condition, the defect made the product unreasonably dangerous, and the defect caused the plaintiff’s injuries and resulting damages.

When a product liability suit is brought, your attorney will need to retain experts to prove whether there was a design, manufacturing, or marketing defect and to testify about whether there was a safer alternative design. When there is a manufacturing defect claim, the plaintiff’s expert must be able to testify that the product deviated from its planned specifications. When there is a marketing defect, the plaintiff will have to show that the product lacked an adequate warning.

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Published on: December 20, 2013

Multi-Million Dollar Verdicts Awarded in Two Separate Topamax Birth Defect Lawsuits – Gurley v. Ortho-McNeil-Janssen Pharmaceutical and Czimmer v. Ortho-McNeil Janssen Pharmaceutical

By Carabin Shaw

On November 18, 2013, a Philadelphia jury awarded over $10 million to a family whose son was born with a cleft palate and other birth defects after being exposed to the drug Topamax during his mother’s pregnancy. More specifically, in Gurley, et al. v. Ortho-McNeil Janssen Pharmaceutical, Haley Powell was prescribed Topamax for treatment of epilepsy and migraines. More than a year after she began taking the drug, she became pregnant and continued to take it throughout her pregnancy after being told by doctors that the drug was safe.

After their son, now five years old, was born with birth defects that will require at least five surgeries before turning age 21, the South Carolina couple sued the drug manufacturer, Janssen Pharmaceuticals, Inc. (formerly Ortho-McNeil-Janssen Pharmaceutical) in a Pennsylvania state court. The couple alleged that the company failed to warn the Powells doctor that Topamax taken during pregnancy could cause birth defects, despite the company allegedly being aware of the serious risks as early as 1997. Even though the judge threw out most of plaintiffs’ claims against the drug manufacturer, including strict liability-design defect, negligent design, gross negligence and express breach of warranty, and also barred a bid for punitive damages, the jury ultimately found that Janssen negligently failed to warn the patient and the doctor of the risks associated with Topamax when used by patients during pregnancy and awarded the family over $10 million in damages.

The Gurley case was the second of approximately 134 cases pending in Philadelphia relating to Topamax tried in court. Notably, it is also the second largest verdict in recent months against Janssen Pharmaceuticals, Inc., a subsidiary of Johnson and Johnson. In October 2013, a Philadelphia jury in Czimmer v. Janssen Pharmaceuticals, Inc. issued a $4.02 million verdict in favor of April Czimmer, a Virginia woman who took Topamax from August 2006 through February 2007 to treat migraines. Czimmer subsequently gave birth to a boy born with a cleft lip in September 2007. She alleged that she would not have taken the drug for more than six months had she known the risks associated with it. The jury ultimately found that Janssen was negligent when it failed to warn healthcare providers of the extent of the risk of birth defects from Topamax, and awarded approximately $562,000 in future health care costs to Czimmer’s son and an estimated $3.4 million for pain and suffering.

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Published on: October 22, 2013

Immigration Status and its Effect on the Right to Sue for Personal Injury

By Carabin Shaw

According to a recent report by the Pew Research Center, in 2012, an estimated 11.7 million unauthorized immigrants lived in the United States illegally, up from 11.3 million in 2009. The report estimates that approximately 1.75 million of these unauthorized immigrants live in Texas, accounting for 15% of the unauthorized immigrants in the U.S. Moreover, Pew stated that among the six states with the largest numbers of immigrants here illegally, only Texas had a consistent increase in illegal immigration from 2007 to 2011, due in part to its stronger economy. Since many of these immigrants are employed in high-risk occupations, they are at an increased risk to become involved in industrial accidents resulting in personal injury.

Notably, in the U.S., the court system is available to all, and undocumented immigrants have the right to sue those who injure them as a result of negligence. The 14th Amendment to the U.S. Constitution guarantees due process and equal protection of the law to both U.S. citizens and non-citizens. In fact, the term “person” under the 14th Amendment includes U.S. citizens, lawfully admitted residents, and undocumented immigrants. In addition, the Civil Rights Act ensures that all persons within the borders of the U.S. are guaranteed the right to bring lawsuits against those that cause them injury without regard to whether they are in the country legally or not. This means that a person’s immigration status should not preclude his or her right to file a lawsuit in a U.S. or Texas court to recover damages for personal injuries.

Types of Damages Available to Undocumented Immigrants

In a personal injury case the following types of damages may be available: compensation for medical expenses, lost wages or income, and mental pain and suffering. In some jurisdictions, courts have found that allowing the award of back pay and lost wages to undocumented immigrants in personal injury cases circumvents the U.S. Immigration Reform and Control Act of 1986 (“ICRA”). However, courts in Texas have repeatedly reaffirmed the proposition that Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.

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Published on: October 15, 2013

Sports and Recreational-Related Activities Contribute to Over 20% of all Traumatic Brain Injuries Amongst Children and Adolescents

By Carabin Shaw

According to the October 2013 issue of the Journal of the American Academy of Orthopedic Surgeons, falls and car accidents are responsible for most cases of minor traumatic brain injuries (“mTBI”). Notably, however, another leading cause of traumatic brain injuries (both minor and severe) is sports and recreational activities. In fact, although infrequent, the leading cause of death from sports-related injuries is traumatic brain injury (“TBI”). Furthermore, sports-and recreational activities contribute to approximately 21% of all TBIs among children and teens.

A traumatic brain injury (“TBI”) is defined as a blow or jolt to the head that disrupts the normal of function of the brain. While mTBIs may result in a concussion without loss of consciousness, more severe traumatic brain injuries can result in extended period unconsciousness, coma, and death. Unfortunately, throughout the beginning of the 21st century, the incidents of TBIs in minors have continued to increase.
According to a report published by the U.S. Centers for Disease Control and Prevention (“CDC”), from 2001 to 2009, the number of sports and recreation-related emergency room visits for TBI among persons aged 19 and younger increased 62%. In addition, the CDC reports that each year U.S. emergency departments treat an estimated 173,285 sports and recreation related TBIs. Additionally, more recently, a study from Cincinnati Children’s Hospital published on September 30, 2013, showed a 92% increase in pediatric visits to their hospital’s emergency rooms for sports-related traumatic brain injury from 2002 to 2011.

Overall, the activities associated with the most TBI-related emergency room visits include bicycling, football, playground activities, basketball and soccer.
As a result of the increase of TBIs amongst adolescents participating in sports and recreation, many states, schools, and sports leagues and organizations have created policies or action plans on concussions in youth and high school sports. In Texas, for instance, in 2011, the State legislature passed HB 2038 relating to the treatment, prevention, and oversight of concussions affecting public school students participating in interscholastic athletics. The law requires the following:

• The governing body of each school district and open-enrollment charter school with students enrolled who participate in sports appoint or approve a concussion oversight team;
• Parents or guardians of student athletes must sign a form that acknowledges receiving and reading written information that explains among other things, concussion prevention, symptoms, treatment, and guidelines for safely resuming participation in an athletic activity following a concussion; and
• Student athletes are to removed from practice or competition immediately if they are believed to have sustained a concussion during practice or competition, and the student may not be permitted to return until evaluated by a physician.

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