Texas Injury Lawyers Blog

Published on: August 9, 2015

Drug Withdrawal and Expert Testimony in a Texas Truck Accident Case

In Cady v. Cargile, a Texas appellate court considered a tractor-trailer crash. The decedent was visiting a friend’s house and borrowed his pickup. Two miles away, he crashed into a tractor-trailer that was stuck, blocking all lanes of traffic, and he died. His mother sued the driver of the tractor-trailer and the trucking company for wrongful death. The jury found that the death arose out of the decedent’s own negligence and awarded no damages. The trial court ordered that the plaintiff take nothing on her claims.

The plaintiff appealed on the grounds that the trial court shouldn’t have admitted the trucking company’s expert testimony because it was irrelevant. The plaintiff contended that the expert’s methodology was unreliable and that there was too big a gap between the data and the opinion proffered. The appellate court explained that there is a two-part test that covers whether expert testimony is admissible. First, the expert needs to be qualified, and second, the testimony must be relevant and based on a reliable foundation.

The trial court has broad discretion to determine whether expert evidence is admissible or not. However, in examining whether the expert’s testimony is reliable, the court is not allowed to determine the correctness of conclusions. The expert testimony may be unreliable if the expert draws conclusions based on flawed reasoning or methodology. If there is too big a gap, as argued by the plaintiff here, the opinion may not be reliable.

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Published on: August 9, 2015

Texas Supreme Court Rules on Design Defect Case

By Carabin Shaw

The Texas Supreme Court recently decided Genie Industries, Inc. v. Ricky Matak, a product liability case. In Texas, manufacturers are not liable for design defects unless there is a safer alternative design and the defect makes the product unreasonably dangerous such that its risks outweigh its usefulness.

The case arose when a worker was supported 40 feet in the air by an aerial lift made by the defendant. The base of the lift was small and on wheels, and an electromechanical interlock prevented the platform from being elevated unless all outriggers were in place and leveling jacks were pressed to the ground. Others tried to move the lift with the worker on it. There were signs on the machine and instructions in the user manual that warned the machine could tip over, causing the worker to fall from a great height. The worker in this case did fall and died of massive head injuries. There have been only three reported accidents like the one in this case.

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Published on: August 9, 2015

Manufacturing Defect or Slip and Fall in Texas?

By Carabin Shaw

In some Texas personal injury cases, it is difficult to know which theory of recovery to pursue. In Pilgrim’s Pride Corporation v. Mansfield, a manufacturer appealed from a judgment in a product liability case that on the surface might have looked like a slip and fall. A jury had found that the product, which was a bag of frozen chicken, had a manufacturing defect when it was sold to a retail grocer.

While shopping at the retail grocer, a customer slipped and fell on liquid that leaked through the defective bag of chicken. The store manager helped her get up, and she stated she thought she was okay and wouldn’t need an ambulance. The manager filled out an accident report on the store form, noting that the customer had slipped on blood that came through a leak in the bag of chicken while she was pushing her grocery cart.

At trial. the store manager testified that he noticed there was a trail of liquid spots behind the plaintiff’s cart just after the accident, and that he’d inspected the bag as well. He took the bag to the meat department, noticing that the bag was open, not just torn or cut. The meat department manager and his assistant also noticed that the corner of the bag was unsealed. The manager testified there was an opening at the bag’s seam, a defective seal, which allowed the liquid to leak.

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Published on: August 9, 2015

Elections of Remedies when Suing a Governmental Employee in Texas

By Carabin Shaw

If you are suing a governmental employee for personal injuries but are not sure if he or she was acting in an official capacity at the time of injury, you should be aware of election of remedies under the Texas Tort Claims Act (TTCA). In Molina v. Alvarado, a Texas plaintiff sued a city for negligence and negligence per se, on the grounds that its employee Alvarado was driving a city vehicle under the influence of alcohol when he hit the plaintiff. The plaintiff originally alleged that the employee was operating the city’s vehicle in the course and scope of employment with the city, and the city had negligently operated the vehicle through its employee. The original petition didn’t describe the employee’s job duties or state that he was performing a task assigned to him by the city.

The city claimed immunity from the suit, arguing that no statute waived its immunity. The trial court denied the plaintiff’s special exceptions that requested the city specify the facts and law underpinning its immunity defense. The plaintiff filed an amended petition naming the employee as another defendant.

The amended petition alleged the employee operated the city vehicle in the course and scope of employment with the city. It reasserted that the city operated the vehicle in a negligent manner. The plaintiff also claimed that, if the employee wasn’t furthering the city’s governmental affairs while in the vehicle, he was liable in his individual capacity for negligent operation of the vehicle.

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Published on: August 9, 2015

Negligence Per Se in Texas Bicycle Accident

By Carabin Shaw

In the recent appellate case of United Parcel Service, Inc. v. Rankin, the plaintiff and his family sued UPS and one of its drivers. The case arose when the driver parked his UPS vehicle in front of a house to make a delivery on his normal route. He intended to park briefly and left the vehicle partly in a lane of traffic with the hazard lights on. The view was unobstructed for 2,000 feet, but the vehicle was brown and stopped under a tree with brown leaves against the backdrop of a brown hill.

The plaintiff was traveling home by bike and rode into the back of the parked UPS vehicle and suffered severe injuries. He didn’t remember what happened, and the driver testified he didn’t see the accident. When the police came, the hazard lights of the UPS vehicle were still flashing. The plaintiff told the police he didn’t see the vehicle when he rode into it.

At trial, a police officer testified that the plaintiff had a duty to look for vehicles, and there was enough space for him to ride around the vehicle. The police officer didn’t charge the driver with illegal parking.

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Published on: August 9, 2015

Proximate Cause in a Texas Wrongful Death Case

By Carabin Shaw

In Sinclair v. Estate of Ramirez, the defendant appealed in connection with a verdict entered in favor of a decedent’s estate and his wife in a wrongful death case. The case arose when the decedent finished his welding job and drank 14-18 beers with his coworkers. He and two coworkers went to a nude cabaret, which was 50 miles away, and operated by the defendant. They drank through the evening inside the club. The decedent bought four private dances in a VIP room. At some point, the decedent got aggressive with a dancer. The dancer believed that he intended to rape her and escaped.

The dancer told the defendant. The decedent left the VIP room and asked for a refund. A witness testified that he wanted a refund because he thought he would get more because he paid for dances. The defendant refused to give the refund. The decedent threw a metal box at him. The defendant got a whip from the other side of the bar.

The decedent pushed through some doors, breaking them. To stop him from getting to an area where the defendant stored cash, the defendant ran after him. The decedent charged the defendant, who hit him with the whip. The club DJ pulled the decedent back, and the decedent fell to the floor, stunned. A club patron asked if the defendant wanted the decedent removed. The defendant said yes but later claimed he didn’t tell him to drag the decedent from the club.

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Published on: August 9, 2015

Expert Reports in Wrongful Death Claims Against Healthcare Providers in Texas

By Carabin Shaw

In Nexion Health at Garland, Inc. v. Townsend, a 69-year-old Texas woman was admitted to a rehabilitation center after a back surgery. The center assessed her as a high fall risk with good potential for rehabilitation, and two people were required to assist with transfers. She was found to have deep vein thrombosis in her lower extremities. Bed rest and anticoagulants were ordered. Testing showed some issues with her coagulation, but no further tests were ordered. The woman was not able to balance at one point and sat down on the floor. There were no signs of fracture, but later she was found to have a hematomal bump and suffered from labored breathing.

The woman had to be transferred to a medical center. She was diagnosed with anemia, weakness, tachycardia, and an altered mental status. She was suffering from a hematoma that was secondary to anticoagulation. The ICU admitted her, and she was placed on ventilation and received several blood transfusions, among other things.

She died there. Her estate filed a health care liability suit against the decedent’s treating physician and the rehabilitation center. The estate offered an expert report to support its claims. The rehabilitation center filed objections and moved to dismiss the claim. The objections were overruled and the motion denied.

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Published on: August 9, 2015

Construction Site Injuries in Texas

By Carabin Shaw

In Maldonado v. Sumeer Homes, the plaintiff appealed from three summary judgments in a personal injury action. The case arose from injuries the plaintiff suffered while working as a sheetrock installer on stilts during Sumeer Homes’ construction of a home. He tripped and fell on a stack of sheetrock. The plaintiff was working for Arturo Galvan, who’d been hired by a drywall subcontractor, who was in turn working for Sumeer Homes. The sheetrock was delivered and stacked by Moises Aguilar.

After the accident, the plaintiff sued the builders and Arturo Galvan for negligence and gross negligence. He alleged that the sheetrock had been placed negligently and that the defendants failed to warn of the danger. He also alleged that he was told to work on stilts, even though the sheetrock was negligently placed on the ground, and that all the defendants were responsible for supervising and keeping safe the workers on the job.

The builders moved for summary judgment. They challenged the breach of duty and proximate cause aspects of the plaintiff’s claims. They also argued that he had no evidence that they violated a statute for his negligence per se claim, among other things, and all three motions were granted. The plaintiff appealed.

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Published on: August 9, 2015

Apportionment of Damages in Texas Construction Accident Lawsuits

By Carabin Shaw

In Joyce Steel Erection, Ltd. v. Bonner, a Texas appellate court considered a plaintiff who was pinned by an extremely heavy concrete tilt wall at a construction site. He suffered serious injuries and needed numerous expensive surgeries. He sued Joyce Steel Erection, Ltd., Caruthers Construction, and Self Concrete, Inc. Joyce didn’t settle, but the others did.

The plaintiff proceeded to trial against Joyce. The jury found $3.5 million in past damages and $3.5 million in future damages. It determined the defendant was 34% at fault, the plaintiff was 34% at fault, and the plaintiff’s employer was 33% at fault. The trial court entered judgment against Joyce after deducting for the other parties’ degree of fault and the settlement amounts.

The defendant appealed, arguing that the trial court should have excluded any damages that could be attributed to the plaintiff’s employer and for failing to follow a particular formula in calculating prejudgment interest.

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Published on: August 9, 2015

Texas Medical Malpractice Claims Against a Governmental Entity

By Carabin Shaw

In University of Texas Health Science Center at Houston v. Cheatham, the appellate court considered the dismissal of a plaintiff’s health care liability claim based on immunity. The plaintiff had received a partial left heart bypass surgery by two employee doctors at the Health Science Center in 2008. Nurses helped doctors perform the procedure.

After the procedure, the plaintiff was X-rayed. The X-ray showed something metallic embedded within the plaintiff’s chest. He was taken back to the operator room, and the metallic object was a surgical needle. The plaintiff sued the doctors, alleging that they negligently left the needle in his chest. The doctors moved to dismiss on the grounds that they were government employees. The lower court granted the motion.

The plaintiff then filed an amended complaint, adding the Health Science Center as a defendant. The Health Science Center argued it was also immune. It claimed that the plaintiff had failed to give formal or actual notice as required by the Texas Tort Claims Act. It also filed evidence to support its plea to the jurisdiction. The plaintiff didn’t contest the evidence as inadmissible. The trial court denied the plea, and the defendant appealed.

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