Personal Injury

Published on: June 12, 2016

Statute of Limitations in Texas Minor’s Wrongful Death

In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

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Published on: June 12, 2016

Texas Employer Liability for Temp Workers

By Carabin Shaw

In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

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Published on: June 12, 2016

Can a Texas Defendant Require You to Submit to a Medical Examination?

By Carabin Shaw

In the Texas Supreme Court case of In Re HEB Grocery Store Company, the Court considered whether a trial court had properly denied the defendant’s motion to conduct a physical examination of a personal injury victim.

The case arose when the plaintiff sued a grocery store for negligence, claiming he’d tripped and fallen over a metal plate in front of the grocery car corral in its parking lot, suffering injuries to his face, neck, shoulder, arm, and knee. He underwent medical care, including spinal surgeries. While the lawsuit was pending, he was also involved in an accident at a Sam’s Club. He sued the Sam’s Club, claiming that an employee had dropped a roll of artificial turf on his head, causing him to suffer head and neck injuries.

The grocery store retained as a medical expert an orthopedic surgeon. The surgeon didn’t examine the plaintiff but did provide a report with opinions about the plaintiff’s injuries, relying on a medical records review. It was his opinion that the plaintiff’s spinal injuries were the result of a preexisting spinal condition and that nothing in the plaintiff’s MRI a month after the fall suggested he had an acute injury.

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Published on: April 10, 2016

Suing the Government for Texas Road Construction Accidents

By Carabin Shaw

In Texas Department of Transportation v. Brown, the plaintiff was driving on Hwy 82, in an area that was a construction zone, when she crashed into an unmarked machine parked in the right-hand lane. Later, she would claim that the barricade drums that were put between the two lanes didn’t show which lane was closed.

She sued the contractors for the Texas Department of Transportation (Department) and others for negligence. The defendants designated the Department as the responsible third party. She then amended her suit to include the Department as a defendant. She argued that the Department’s governmental immunity was waived under the Texas Tort Claims Act (TTCA). The TTCA required pre-suit notice. Her petition didn’t claim to provide pre-suit notice, only that she had generally met all the prerequisites to file suit.

The Department filed a verified answer and claimed governmental immunity, alleging she hadn’t provided notice of her claim as required under Section 101.101(a) of the Texas Civil Practice and Remedies Code. The director of the relevant section of the Department swore that notice hadn’t been received. Later, the Department filed a plea to the jurisdiction, arguing there was no subject matter jurisdiction.

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Published on: October 25, 2015

Liability for Dog Bites in Texas

By Carabin Shaw

In Bowman v. Davidson, a Texas appellate court considered a case in which a guest at a couple’s home was bitten in the face by their dog. She suffered severe injuries and sued the couple. She claimed that since they had actual or constructive knowledge about their dog’s abnormally dangerous tendencies, they were strictly liable for her injuries, or alternatively they were negligent in failing to use reasonable care to stop the dog from hurting her. The jury found for the couple on both of these theories.

The plaintiff appealed, arguing that she was entitled to a positive jury verdict on strict liability as a matter of law, and in the alternative that the jury’s finding went against the weight and preponderance of evidence. The appellate court explained that the owner of a vicious animal may be held strictly liable for injuries in Texas. However, the owner of a non-vicious animal may be liable if he negligently handles the animal.

In order for strict liability to apply, the plaintiff will need to show: (1) the defendant owned or possessed the animal, (2) the animal had dangerous tendencies that were abnormal for the type of animal it is, (3) the defendant knew or should have known of these tendencies, and (4) the tendencies caused the plaintiff’s injuries.

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Published on: October 25, 2015

Expert Testimony in Texas Toxic Tort Cases

By Carabin Shaw

In Cerny v. Marathon Oil Corporation, a couple sued an oil corporation and others for private nuisance and negligence claims. They said that toxic emissions from the companies’ oil and gas operations near their home had caused injuries to their health and property.

The case arose when the couple moved into a fixer-upper in 2002. They leased mineral rights in their land to the predecessor of the oil corporation defendant. Subsequently, the defendant was authorized to use the surface of their land for oil and gas operations and to drill horizontal wells. The defendant didn’t put wellheads or infrastructure on the couple’s property, and they received consistent royalty payments.

In 2013, they sued the oil corporation and another party, alleging that they were negligent in their oilfield operations and these operations worsened existing health problems and caused new ones. Due to the oilfield operations, their property wound up with sink holes, and their home’s foundation was damaged. Their property was also surrounded by other wells and production facilities owned by the defendants, and these radically changed their rural lifestyle. They pled negligence, negligence per se, gross negligence, and private nuisance.

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Published on: October 25, 2015

When is a Medical Exam Warranted in A Texas Car Accident Case?

By Carabin Shaw

In In re Ruben Gonzalez, a cross-complainant filed a petition for a writ of mandamus to overturn the trial court’s order that required him to undergo a medical examination in a personal injury suit. The case arose in 2013 when the cross-complainant was involved in a multi-vehicle crash. A truck driver turned in front of his car, and the cross-complainant veered and crashed into a third vehicle driven by the plaintiff. The plaintiff sued the cross-complainant, the truck driver, the truck driver’s employer, and another. The cross-complainant then cross-claimed against the truck driver and his employer, seeking damages for his own injuries.

One of the cross-complainant’s treating physicians recommended that he have a surgery to remove four cervical discs and fuse his vertebrae. The truck driver and his employer deposed the doctor. The truck driver and employer also requested a medical exam of the cross-complainant, but the trial court denied this.

The cross-complainant got a second opinion about the way he should be treated. The second opinion physician had not yet been disclosed as a potential witness. The second opinion doctor recommended that the cross-complainant undergo a single-disc replacement surgery. His lawyer did disclose to the opposing attorneys that his client would have surgery, but he didn’t identify the second opinion doctor as the one who would perform it.

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Published on: September 21, 2015

Texas City Sued Due to Police Officer Use of Patrol Car

By Carabin Shaw

In City of Socorro v. Hernandez, a Texas appellate court considered a case in which the plaintiffs were involved in a car crash. Their car was rendered inoperable, and the electrical system died in the street. The hazard lights weren’t working. The police responded. The officer didn’t park his car behind the stalled car but instead parked on a side street, activating his overhead flashing lights. The officer ordered the two to push the stalled vehicle out of the road. A woman driving towards the accident was distracted by the police car’s lights and crashed into the police officer and the plaintiffs.

The plaintiffs sued on the grounds that their injuries and damages were proximately caused by the city’s negligence in failing to use warning lights in a way that would have warned other motorists about the dangerous condition in the road, placing the car in a side street and thereby distracting motorists from the dangerous condition, failing to take reasonable steps to make the road safe, and directing the plaintiff to push the car out of the road in spite of its inoperable condition.

The City filed a plea to the jurisdiction, which was denied by the trial court. The City appealed the denial. The court reviewed whether the allegations established that the city’s use of the police car proximately caused the injuries, whether the injuries were proximately caused by the use of the disabled car, and whether the dangerous condition created by the disabled car was a special defect.

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Published on: September 21, 2015

Liability for Texas Restaurants When Patron Suffers Allergic Reaction?

By Carabin Shaw

In Gibbons v. Luby’s, Inc., the plaintiff suffered anaphylaxis at a Texas restaurant after eating a salmon croquette that she did not know contained whitefish, to which she was allergic. After she started eating, her throat became scratchy, and her face turned red. A restaurant employee told her that the ingredients included whitefish.

The plaintiff and her friend headed for the hospital, but it was too far away. The friend stopped at a fire station, and the paramedics treated her until an ambulance could come. She was unconscious by that point. She was taken to the hospital and diagnosed with anaphylactic shock, acute respiratory failure, and hypoxemia. By that time, Gibbons was unconscious.

Gibbons was taken by ambulance to the hospital, where she was admitted and diagnosed with anaphylactic shock, hypoxemia, and acute respiratory failure. The physicians sedated her, intubated her, and put her on life support. She was discharged two days later.

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Published on: September 21, 2015

Sufficient Evidence for Damages in Texas Car Accident Case

By Carabin Shaw

In Dabbs v. Calderon, a Texas Court of Appeals considered a case in which the defendant ran a red light and crashed into two cars. One of the passengers in one of the struck cars was pinned inside the car. When he was freed by emergency personnel, they found his leg was badly hurt. Doctors diagnosed him with a fracture in his shin bone and gave him a pain medication prescription, stabilized his leg, and discharged him. At home, his family had to cook for him and give him baths.

Three weeks later, his leg was covered in fracture blisters, and he had to stay at the hospital for five days. Six months later, he had to have a surgery, and he went to physical therapy three days a week for several months until April 2012. Later he testified that his right leg atrophied from non-use, and when he did try to use it, his foot would swell and turn blue.

The accident victim sued the woman who crashed into the two cars, claiming she negligently ran a red light because she was distracted. The woman claimed she couldn’t stop because her brakes failed.

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