Texas Injury Lawyers Blog

Published on: August 23, 2018

Texas Supreme Court Orders New Trial in Medical Malpractice Case

A win at trial is not always the end of the road for plaintiffs. Mistakes at trial can result in personal injury plaintiffs enduring a lengthy appeal process and, in some cases, even a new trial. In a recent case, the Texas Supreme Court ordered a new trial for a Texas medical malpractice plaintiff after the Court found the evidence presented at trial confused the jury.

The Facts of the Case

The plaintiff had a laparoscopic-assisted vaginal hysterectomy (LAVH) to have her uterus, ovaries, and fallopian tubes removed. During the surgery, her bowel was punctured, which resulted in serious post-surgical consequences. The surgery was performed by her doctor and a resident.

Before the surgery, the plaintiff signed consent forms, which stated in part that her doctor would treat her, along with “such associates, technical assistants, and other health care providers as they may deem necessary.” It also stated that the physician might require other physicians, “including residents,” to perform tasks “based on their skill set” and under the responsible physician’s supervision. She testified, however, that she was not told that a resident would actually perform part of her surgery.

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Published on: August 23, 2018

Texas Supreme Court Allows Case to Be Filed in Texas for Death in Mississippi Tractor Accident

By Carabin Shaw

Filing a claim in one state rather than another may have a number of benefits for a Texas plaintiff, including convenience and more favorable laws. In a recent Texas Supreme Court decision, the court explained why a case arising from an accidental death in Mississippi could be filed in Texas.In that case, a man was killed while he was repairing his tractor at his house in Mississippi. The tractor was sold in Mississippi, and the accident occurred in Mississippi, but the man’s son lived in Texas and filed a negligence and product liability claim against the tractor company in Texas. The company moved to dismiss the claim based on forum non conveniens. The company argued that Mississippi was a more convenient and appropriate forum to have the claim heard. The man’s estate was there, and there were other connections to the accident there, since the man lived in Mississippi, bought the tractor in Mississippi, and died in Mississippi.

Forum Non Conveniens

Forum non conveniens allows a court to decline jurisdiction if another more suitable forum exists that is more just and convenient. Under Texas Civil Practice and Remedies Code § 71.051, a court can decline to exercise jurisdiction under the doctrine of forum non conveniens if it is “in the interest of justice and for the convenience of the parties.”

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Published on: August 23, 2018

Texas Supreme Court Allows Future Medical Expenses Award After Plaintiff’s Death

By Carabin Shaw

Unfortunately, Texas personal injury cases can take years to resolve, in some instances, and plaintiffs may not live to see the final disposition of their case. This can implicate a number of procedural rules and requirements in order to ensure that the right type of case is being brought and the proper damages are being sought. In a recent case before the Texas Supreme Court, the court explained why an award for future medical expenses should stand, although the plaintiff had died by the time the case reached the court.The plaintiff was 37 weeks pregnant and receiving prenatal care from an ob/gyn when she came to the hospital with severe abdominal pain. She had seen her ob/gyn that morning for a routine visit and everything appeared normal. When she went to the hospital, the doctors discovered that the fetus had died due to placental abruption, and that the woman had developed disseminated intravascular coagulation (DIC), a blood-clotting disorder.

The doctors ordered a blood-product replacement plan to counter her DIC. They decided that vaginal delivery was necessary and hoped that the DIC would correct itself after delivery.

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Published on: August 23, 2018

Texas Court Finds Refinery May Be Liable After Injury Occurred During Contractor’s Repairs

By Carabin Shaw

Property owners can try to evade liability in some personal injury cases by claiming that a contractor was at fault for an accident. However, even when a contractor is used, property owners may still be on the hook. In a recent case before a Texas appeals court, the court explained why a refinery could still be held liable after a contractor’s employee was injured while the contractor was completing repairs.

The plaintiff, a supervisor, worked at a company that was providing maintenance and repairs at a refining facility in Texas. He was injured at work one day when hot liquid sprayed out of a pipe, causing him to suffer severe burns. A solution of raw bauxite dirt and sodium hydroxide called “process liquor” was being pumped through the pipes. Because the process liquor caused residue to build up in the pipes over time, the pipes had to be cleaned from time to time. Some employees were using a jackhammer to remove a deposit that had formed in a pipe when hot liquor sprayed out of the pipe and onto the employee.

The plainitff had to be airlifted to the hospital due to the severity of the burns. He alleged that the refinery was negligent in failing to ensure that the liquor was emptied from the pipe before allowing work to begin. The employer argued that the refinery was not liable for his injury under Chapter 95 of Texas’s Civil Practice and Remedies Code, because the work was being done by a contractor.

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Published on: August 23, 2018

Texas Supreme Court Explains Defendant’s Responsibility to Name Responsible Third-Party Within Allotted Time

By Carabin Shaw

Texas’s Supreme Court recently considered a Texas personal injury case in which the defendant attempted to name another individual as a responsible third-party after the statute of limitations governing the plaintiff’s claim had expired. The court had to determine if the defendant should be allowed to bring in the third-party, or if by waiting until after the statute of limitations expired resulted in the forfeiture of this right.

The Facts of the Case

The plaintiff sued a restaurant after she was injured when a television fell off the wall and hit her. During discovery, when the woman asked who installed the television, the restaurant stated that it was installed by a certain individual. However, the restaurant also stated that it believed the parties had been correctly named, did not name any other potentially parties, and stated that it would supplement its response with the name of a responsible third-party. The restaurant did not supplement its responses before the statute of limitations expired.

Two weeks after the statute of limitations had expired, the restaurant moved for leave to designate the individual as a responsible third-party and it supplemented its discovery responses. The plaintiff argued that it was too late for the defendant to designate another responsible party because the statute of limitations had expired and the defendant failed to timely disclose that the individual might be designated as a responsible third-party.

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Published on: August 23, 2018

Texas Court Grants New Trial to Truck Accident Victim after Defense Counsel Alludes to Plaintiff’s Immigration Status

By Carabin Shaw

Recently, a state appellate court issued an opinion in a Texas truck accident case discussing an important issue regarding what constitutes inappropriate comments with respect to a plaintiff’s ethnicity or immigration status. The case required the court to determine if the plaintiff should be granted a new trial after defense counsel made several comments alluding to the plaintiff’s inability to legally work in the United States.

The Facts of the Case

The plaintiff was injured in an accident with the defendant truck driver. The plaintiff claimed that the defendant made an illegal lane change and collided with her vehicle. According to the plaintiff, after the accident the defendant apologized for causing the accident, and admitted that it was his fault. The defendant later took back those statements, claiming that when he learned more about how the accident occurred, and the plaintiff’s role in causing it, he no longer believed he was at fault.

The plaintiff was not legally permitted to work in the United States and the defense counsel hoped to bring that fact to the attention of the jury. However, in a pre-trial motion, the court disallowed comments on the plaintiff’s immigration status.

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Published on: August 23, 2018

Establishing Liability Following a Texas Car Accident

By Carabin Shaw

The legal doctrine of negligence generally governs most injury claims. Thus, understanding what a plaintiff must to prove is an important part of any Texas injury case. Negligence means that a party acted or failed to act in a way that an ordinarily prudent person would have acted in those or similar circumstances. This is referred to as the standard of care.

The standard of care required in a given scenario depends on the facts of the case. Some considerations might include the dangerousness of the activity involved and the relationship between the parties. Therefore, a plaintiff must show that the defendant did something a prudent person exercising ordinary care would not have done (or failed to do something an ordinarily prudent person would have done) in those same circumstances.

In Texas, to prove a negligence claim, a plaintiff must prove 1) the defendant owed the plaintiff a legal duty; 2) the defendant breached that duty; and 3) the breach proximately caused the plaintiff damages. That means that in a Texas car accident case, a plaintiff has to prove that another person failed to meet the standard of care, which caused the plaintiff’s injuries. In some cases, the standard of care has been defined. For example, negligence per se is a concept where a certain standard of care has already been established. In that instance, a statute states what a reasonably prudent person would have done, and then the jury is asked whether the defendant violated the statute or regulation.

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Published on: August 23, 2018

Federal Appellate Court Permits Texas Slip-and-Fall Plaintiff’s Case to Proceed

By Carabin Shaw

Recently, a federal appellate court issued a written opinion in a Texas slip-and-fall case that arose after the plaintiff slipped and fell in a Wal-Mart store. The case required the court to determine if the trial court was proper in dismissing the plaintiff’s lawsuit after granting Wal-Mart’s motions for summary judgment. Ultimately, the court concluded that summary judgment was not appropriate for Wal-Mart because the plaintiff’s proposed theory of how the accident occurred was the most plausible among those suggested by the parties.The Facts of the Case

The plaintiff was shopping at Wal-Mart when he slipped and fell in a puddle of clear liquid that was left in an aisle. The puddle was at a low-lying area of the floor, where brown tile met white vinyl.

The incident was captured on low-resolution video that showed an auto-scrubber floor-cleaning machine pass over the area where the tile met the vinyl. The machine – which dispenses a soapy liquid, scrubs the floor, and then sucks up any remaining liquid – paused over the area where the plaintiff fell. The video was too poor in quality to determine with any certainty that liquid was left behind.

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Published on: August 23, 2018

Recent Development in July’s Fatal DUI Accident that Claimed the Lives of Two Texas Teens

By Carabin Shaw

Back in July of this year, three teenagers were involved in a serious Texas car accident after the driver lost control of the vehicle. After losing control of the Nissan Altima, the car veered off the road and into the median, where it slammed head-on into trees that cut the vehicle in half. While the driver survived with relatively minor injuries, both passengers died from the injuries they sustained in the accident.While investigating the fatal accident, police believed the driver to have been under the influence of alcohol. That was confirmed, and the teenage driver was arrested and charged with two counts of intoxication manslaughter. According to a recent news report, authorities have subsequently arrested a 29-year-old gas-station clerk who they believe may have sold the teenage driver fortified wine on the day of the fatal accident. The clerk denies he sold the minor alcohol, claiming that he always checks customers’ identification prior to selling them alcohol.

Dram Shop and Social Host Liability

While the driver involved in this tragic accident may have obtained alcohol from a gas station, more often than not under-age drinkers get alcohol from a friend’s parents or from a bar or restaurant. In some cases, the bartender may be a friend or acquaintance who serves the minor, knowing they are under-age.

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Published on: August 23, 2018

Fifth Circuit Court of Appeals Affirms $3.4 Million Verdict in Recent Product Liability Case

By Carabin Shaw

Earlier this month, the federal circuit court overseeing the federal district courts in Texas issued an opinion in a personal injury case discussing several pertinent issues for Texas product liability plaintiffs. The case required the court to determine if a jury’s $3.4 million verdict in favor of the plaintiff was supported by sufficient evidence. Ultimately, the court concluded that the plaintiff’s evidence did support the jury’s verdict, and thus the verdict was affirmed on appeal.

The Facts of the Case

The plaintiff, through his wife, filed a product liability lawsuit against his employer as well as the manufacturer of a crane that the plaintiff was operating at the time of his accident. According to the court’s opinion, the plaintiff suffered a serious injury when the counterweights attached to a crane he was operating slid into the operator’s cab, knocking the plaintiff out of the cab and sending him head-first onto the concrete eight feet below.

The plaintiff claimed that the crane manufacturer was liable under a “failure to warn” theory. Essentially, the plaintiff’s argument was that the manufacturer’s included warnings failed to fully inform users of the risks involved with the crane tipping over. Additionally, the plaintiff argued that alternative warnings would have better informed him and may have prevented the accident.

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