Texas Injury Lawyers Blog

Published on: December 11, 2014

Texas Appellate Court Affirms Jury Verdict in Defective Design Case

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.

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Published on: November 3, 2014

City Immune from Liability for Texas Swimming Pool Accident Lawsuit

By Carabin Shaw

Recently the appellate court heard Henry et al v. City of Angleton, an accelerated appeal from the trial court granting the city defendant’s plea to the jurisdiction. The case arose when a mother sued the city after her 11-year-old died from the complications of nearly drowning in a swimming pool that the city owned. The swimming pool was at a recreation center that consisted of a fitness facility, gym, and meeting rooms, in addition to the pool.

The pool was both an indoor and outdoor pool and had slides and a lazy river. The mother had taken her four kids to the pool to swim. The 11-year-old was seen lying face down in the water at some point. Lifeguards pulled her out and tried to resuscitate her. She died seven days later from complications of nearly drowning. The video showed her face-down for seven minutes before the lifeguard acted.

The mother sued on behalf of her daughter’s estate, as next friend of her three other children, and as herself individually to recover wrongful death survival and bystander damages. She argued that the City’s operation of the swimming pool was a “proprietary function” because it included amusement features like slides and the lazy river. She also sued for negligence, gross negligence, and premises defect. Continue reading →

Published on: October 21, 2014

Texas Supreme Court Rules on Causation Issue in Mesothelioma Case

By Carabin Shaw

This summer, in an important case for those who have been diagnosed with mesothelioma and their family members, Bostic v. Georgia-Pacific Corporation, the Texas Supreme Court addressed causation in asbestos-disease lawsuits. The plaintiffs had sued for damages after the death of 40-year-old Timothy Bostic due to mesothelioma. Asbestos can cause mesothelioma. His relatives sued 40 defendants, claiming that exposure to their asbestos-containing products exposed him to asbestos, causing his mesothelioma. They sued on the basis of negligence and products liability. The defendant at issue in the appeal was Georgia-Pacific, which had produced drywall compound that the decedent had been exposed to as a child and teenager.

At trial, the jury found the drywall manufacturer and two other defendants liable, including a glass company and a former employer of the plaintiff. 75% liability was allocated to the manufacturer. The total damages were $6.8 million with $4.8 million in punitive damages. On appeal, the appellate court decided that the evidence of causation in the case was not sufficient, and a take-nothing judgment was rendered.

The plaintiffs asked the Court to review. The Court explained that in an earlier case it had held that to establish causation, the plaintiff had to prove the defendant’s product was a substantial factor in causing an asbestos-related disease, and just showing that a plaintiff was exposed to some respirable asbestos fibers traced to the defendant was not enough. The exposure to the defendant’s product had to be considered a substantial factor in causing the asbestos-related disease. The Court concluded there had to be reasonable evidence that the exposure was enough to exceed the threshold before it was considered likely to have caused the disease. Continue reading →

Published on: October 15, 2014

Husband Misses Statute of Limitations for Medical Malpractice Claim

By Carabin Shaw

Failure to file a medical malpractice claim within the time limits can result in your claim being barred. In the recent case of Gale v. Lucio, a doctor and wellness center appealed on the issue of whether the plaintiff could invoke the open courts provision of the state constitution to toll the statute of limitations in a wrongful death and survival claim brought by his wife.

The plaintiff’s wife was a patient of the doctor and wellness center. The wife visited the doctor in order to get her blood pressure checked. The doctor ordered a chest x-ray, which revealed she had a density in her left lung base. A mammogram and CT scan were ordered. The scan showed a wedge-shaped mass on the woman’s left lung, but the plaintiff claimed the wife and he were never informed of the results. The doctor said her office called and mailed the results.

The wife came back for routine appointments and claimed she had a cough. The doctor ordered another chest x-ray that showed a new growth on her lung. After that, the wife was diagnosed with stage IV metastatic lung cancer. The couple sued the doctor for medical malpractice, claiming that the doctor had failed to report the abnormal CT scan to her in a timely fashion and to refer her to a pulmonologist, which caused a delay in her diagnosis. Continue reading →

Published on: October 8, 2014

Negligent Security in Texas

By Carabin Shaw

In a 2011 premises liability case, two sisters appealed a summary judgment in favor of Little Caesar’s Pizza. The case arose when the sisters were in a restaurant when an armed robbery occurred. Two masked robbers came into the pizzeria, brandished their guns, and threatened the people in the restaurant. The robbers were wearing restaurant uniforms. A robber shot one of the women (Viera) when she and her sister left through the back door, and her sister (Estrada) saw the shooting.

The report showed that the robbers shot at the store managers. They ordered people to the back of the pizzeria and told the customers to run. Several customers, including the sisters, ran out of the open back door. Estrada left before Viera and when she looked back, she saw a gunman shoot three times at her sister. When the police investigated, they found the shooting was an inside job conducted with the help of a restaurant worker who left the back door open.

The sisters sued for negligent security. They claimed that the pizzeria failed to offer adequate security and that it was foreseeable an assault would happen on the property. They sought personal injury damages based on physical injuries, as well as mental anguish and PTSD. The pizzeria moved for summary judgment, arguing that the shooting happened outside the restaurant, there was no duty owed to the sisters, no evidence of causation, no evidence of foreseeability, and alternatively that the claims were barred by the statute of limitations.

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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

Texas Ranch Operator Liability for Trespassers’ Fatal Truck Crash

By Carabin Shaw

A family from Mexico — a mother, father, and child — hired a “coyote” to transport them into the United States, to either New Orleans or Houston.

He picked them up in a truck at a safe house in Texas, along with another passenger. They drove to the private Jones Ranch, arriving before dawn. The coyote ordered his passengers to move from the back seat to the floor of the truck. Somehow he had keys to the locked gate of the ranch and drove onto the property.

A ranch employee spotted and stopped the strange truck, even in the early morning darkness, and asked the driver what he was doing on the ranch. The employee observed only the driver and a front seat passenger and also wrote down the license plate number of the truck.

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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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