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In the recent Texas appellate case of In re Wyatt Field Service Company, the court considered whether a new trial was warranted in connection with two plaintiffs’ serious personal injuries that arose from a refinery accident. At the refinery, crude oil is turned into gasoline. Tar is a byproduct of the process. The tar is broken down into pure carbon by a flexicoker unit. The carbon is called “coke.” The coke is heated and returned as a source of heat for the reactor.

Exxon Mobil performs maintenance on the flexicoker unit every two or three years. As part of the process, the heater has to be cooled down through spray from nozzles. The coke builds up in the nozzles and clogs them. The spray nozzles are replaced with dummy nozzles. The worker must pull the dummy nozzle out, and an Exxon Mobil employee closes the gate valve to keep steam and coke inside. Two employees of LWL, Inc. were removing the dummy nozzles in 2011, when one came out too far and the gate was not shut. Coke and steam were sprayed on them, causing burn injuries.

Later, Exxon Mobil investigated and found that the safety chain was in the wrong location and that Wyatt had reattached the safety chain in a previous maintenance session. The two employees of LWL sued Wyatt and ExxonMobil. ExxonMobil settled, so the trial proceeded only against Wyatt as the defendant. Continue reading →

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In the recent ruling in City of Diboll, Texas v. Louie Lawson, a Texas appellate court considered a case in which a Texas city claimed the recreational use statute applied to the plaintiff’s claim and that it was not grossly negligent under the statute. The case arose when a woman went to a city park to watch her granddaughter’s softball game. When leaving the park, she tripped on a four-inch hollow pipe poking up from the center of the walkway on park grounds. It would usually act as a receptacle for a pole and create a barrier that prevented cars from entering the park. However, since the pole wasn’t in place, she tripped, fell, and suffered serious injuries.

The plaintiff sued the city for a premises defect. She died for unrelated reasons, but the personal representative of her estate substituted as the plaintiff. The city filed a plea to the jurisdiction and moved for summary judgment, which was denied. Accordingly, it appealed.

On appeal, the City argued that the plaintiff had been engaged in recreation under the recreational use statute, and so the plaintiff had to plead and prove the City acted with gross negligence. It further argued that the plaintiff had not pled it was grossly negligent, and the evidence showed it was not grossly negligent. Continue reading →

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Recently, in Moreno v. Ingram a Texas appellate court considered the question of whether a chiropractor can testify on the necessity of a plaintiff’s non-chiropractic medical treatment. The plaintiff sued the defendant for negligence, based on injuries and vehicle damage arising out of an auto accident. Before trial, she filed affidavits about her need for medical care. The court ruled these established the cost of the treatment was reasonable, but not that the treatment was necessary. The affidavits were admitted, but the references to necessity were redacted.

At trial, the plaintiff offered her chiropractor’s testimony. The chiropractor (Dr. Starry) testified about the necessity of her treatment by a pain management physician. This included epidural steroid injections and other non-chiropractic treatment. Digital animations were shown as demonstrative exhibits.

The plaintiff and defendant both testified about the crash, but their testimony contradicted each other. The plaintiff testified she had signaled to turn left from a parking lot. She also testified that the defendant was behind her but drove around on the left, swiped, and hit her. The defendant argued she was driving on the boulevard and wasn’t in the parking lot, and that the plaintiff pulled out of the driveway and caused the crash. Continue reading →

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Under Chapter 95 of the Texas Civil Practice and Remedies Code, property owners will not be liable when a contractor or a subcontractor or its employee is hurt on a property owner’s property while performing repairs or construction. A property owner under the chapter is someone who owns real property that is primarily used for commercial or business purposes. The exception is when a property owner exercises or keeps control over the manner in which the work was performed, and the property owner had actual knowledge of the danger or condition resulting in the injury. At trial, a property owner will have to show that chapter 95 applies to the case.

In Rosa v. Mestena Operating LLC, a man and his wife sued a property owner for negligence and premises liability after the man suffered an on-the-job injury. The accident happened when the man was hurt at work while performing maintenance on electrical poles for his employer, a maintenance company. A utility company had an easement on the property and contracted with a maintenance company to perform maintenance on the poles.

The defendant, Mestena Operating LLC, was an operator of oil and gas wells that had a mineral lease on the property where the electrical poles were located. There was no contractual relationship between Mestena and the man’s employer. The plaintiffs claimed that the man had contacted an energized ground wire and suffered electric shock on the job. The ground wire was linked to equipment on the mineral lease. The plaintiffs theorized that the Mestena equipment, which was about 1,400 feet from the place where the plaintiff was located, had malfunctioned, causing the ground wire to be energized. The plaintiffs argued that Mestena knew or should have known about the danger of the ground wire. Continue reading →

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In Texas, the surviving spouse, children, or parents of a deceased person can file a wrongful death lawsuit against a person or entity whose wrongful act or negligence caused the death. One of them can file the claim as an individual, or they can file together as a group. If none of them files the claim within three months of the death, a representative or executor of the deceased’s estate can file the claim unless the family member asks that it not be filed. Texas doesn’t permit surviving siblings to file a wrongful death lawsuit for a sibling’s loss. Unlike criminal charges brought in connection with the same death, liability in a wrongful death suit is expressed solely in monetary damages.

The family members or estate can recover damages, including lost earning capacity, lost inheritance, lost love and companionship, lost earning capacity, lost services and counsel that would have been given by the deceased person, mental anguish, and pain and suffering. Punitive or exemplary damages may also be recovered in order to punish a wrongdoer. The damages will be divided among the surviving family members in proportion to their degree of injury as a result of the death. For example, a surviving spouse who was close to the decedent would likely be entitled to a greater share than a child who was estranged from the decedent for years before the death.

In a recent Texas appellate case, Badall v. Durgapersad, a man shot his victim in a tire shop he owned. The victim died in the hospital the next day, and the man was charged with murder and convicted. He appealed, but the appellate court affirmed his conviction. The victim’s family sued the man for wrongful death, claiming various damages including medical bills, funeral expenses, lost earning capacity, pain and suffering, mental anguish, loss of consortium, lost earning capacity, punitive damages, and lost inheritance and interest. They moved for summary judgment. Continue reading →

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In Methodist Health Centers v. Crawford, a Texas woman’s son and daughter sued a health center for medical malpractice in connection with its care of their mother. The mother was admitted to a nursing facility with a history of diabetes and dementia. She had a pressure ulcer on her back and needed a feeding tube. A month later, she was transferred to the defendant’s hospital for treatment of her urinary tract infection and vomiting. She also had another pressure sore on her hip. A few days later, the pressure ulcers had gotten worse. She was discharged back to the nursing facility. A few months later she again had vomiting, a fever, and shortness of breath and was transferred back to the hospital.

Her condition deteriorated in spite of antibiotics and other treatment. She died of pneumonia, infection, and respiratory failure a few days later. Her son and daughter sued the medical and nursing facilities, both individually and as the woman’s heirs. They attached a doctor’s expert report and CV to the petition, as required by Texas law. They settled with the nursing facility, but the hospital moved to dismiss for failure to serve an adequate expert report. The trial court denied the motion to dismiss.

Under Texas law, a plaintiff must serve a defendant with an expert report, along with a CV of the experts listed in the report. An expert is only qualified to offer an opinion on whether the health care provider deviated from the standard of care if the person practices health care in the same field as the defendant, knows the accepted standard of care for the provider, and is qualified due to training or experience to offer an expert opinion about the standard of care. If a doctor doesn’t state in the expert report that he or she has knowledge of the standard of care, the court will find he or she is not qualified to offer an opinion. Continue reading →

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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 →

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In Texas, the defense of assumption of the risk is part of the general defense of comparative negligence. Those who participate in dangerous activities for sport or fun should be aware of this potential defense should something go wrong. Assumption of the risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm from a defendant’s actions. The defendant will need to show the plaintiff had actual knowledge of the risk, the plaintiff accepted the risk, and the nature of the conduct was inherently dangerous. This doctrine can arise in connection with activities such as scuba diving, rodeos, and high-contact sports.

In DeWolf v. Kohler, a woman brought a Texas wrongful death lawsuit against multiple defendants associated with a scuba diving accident. The decedent was scuba diving with a group at a shipwreck off the coast of Massachusetts. On the second day of the trip, the man was seen going into the water but never resurfaced. Only after hours of searching was the man’s body found on the ocean floor. The local medical examiner determined the cause of death was drowning, pending further study. After an autopsy, however, the cause of death was listed as myocarditis, a natural cause.

The man’s wife sued numerous defendants for wrongful death, including the dive boat, the individual who chartered it for the expedition, the network that had carried a television show with the individual who chartered the expedition. the company that trained the decedent to dive and gave him credentials, and the scuba equipment manufacturer. The boat didn’t answer the suit and was dismissed by the court. The network contested jurisdiction, and the court agreed. The dive training company filed a motion for summary judgment that was granted. The equipment manufacturer filed a motion for summary judgment that was initially denied but later reconsidered. The case proceeded to trial against the individual who had appeared on television and organized the expedition. Continue reading →

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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 →

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In re Zimmer, Inc., a recent Texas appellate decision, considered a product liability lawsuit brought by a plaintiff. The plaintiff argued he was hurt because of the Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used to provide internal stabilization when a patient has serious fractures in his or her lower leg. The plaintiff argued the metal plate had design defects. The plate was first placed in the plaintiff’s leg after a motorcycle accident. It failed within about a year. A second plate was implanted and also failed within about a year. The plaintiff sued the manufacturer, claiming he was permanently disabled because the two implants had failed.

The jury was selected after jurors answered a written questionnaire that asked if jurors had ever had a serious physical injury. The defense attorney also questioned the jury about the experience their family members might have had with injuries. Neither the plaintiff nor the defendant challenged a juror for cause based on an answer related to injuries. One juror who was seated had responded “none” to the question about physical injuries.

The jury found for the defendant Zimmer. The juror who had responded “none” had voted for the defendant. The plaintiff moved for a new trial, claiming misconduct by the jury and arguing that the verdict went against the weight of the evidence. He submitted affidavits from the jurors who dissented. These detailed incidents of alleged juror misconduct. Zimmer responded but didn’t offer counter affidavits.

Continue reading →

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