Texas Injury Lawyers Blog

Published on: February 4, 2014

Texas Court of Appeals Rules Against Injured Worker For Failure to Exhaust Administrative Remedies in Holmes v. Zurich Insurance Company

One of the most difficult aspects of coping with a workplace injury can be dealing with the your employer’s insurance company. Most employers are required to carry workers compensation insurance so that ideally, when a worker is injured, he or she can receive payments until able to resume work. However, sometimes insurers will refuse to pay for injuries or procedures that they believe do not fall within their “scope,” which was the case with Holmes v. Zurich Insurance Company.

In Holmes, the case involved a tire lube technician, Aaron Holmes, who injured his back at work. After he applied for workers compensation, the company’s insurance carrier, Zurich, accepted that Holmes had a lower back sprain, but not any other injuries. In February 2008, Holmes and Zurich participated in a benefit review conference to resolve the dispute, but were unsuccessful. A benefit contested case hearing was then held so that it could be determined whether Zurich had to compensate for a two-millimeter disc protrusion and two other injuries. In May 2008, the Division of Workers Compensation hearing officer found that the disc protrusion was a compensable injury, but not the others.

Holmes then sought pre-authorization for spinal surgery pursuant to the Texas Workers’ Compensation Act. After being denied once and having it overturned by the Independent Review Organization, Holmes had the procedure done. However, when Zurich received the bill, it refused to pay on the grounds that the surgery repaired non-compensable injuries in addition to the disc protrusion.

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Published on: January 26, 2014

Texas Father Killed and Family Injured After Teenage Drivers Run a Stop Sign Near the Texas Motor Speedway

By Carabin Shaw

In a recent tragic case, a father is dead and the other family members were critically injured when a car plowed into their car near the Texas Motor Speedway in northern Fort Worth.

The accident happened in the early evening, when a Dodge four-door sedan ran a stop sign and rammed into a Honda carrying a family of four. The Honda rolled into a ditch, killing the father, who was driving the vehicle. Meanwhile, the eight-year-old daughter was described as “combative and disoriented” when pulled from the car and was taken to Cook Children’s Medical Center. The girl’s mother and teenage brother were transported to another hospital in the area. Though the brother was initially unconscious when pulled from the vehicle, he was walking around not long afterward.

The occupants of the Dodge sedan were three teenagers, aged 16 through 18. It is unclear at this time what caused them to run the stop sign, whether drugs or alcohol were involved. Though the accident is under investigation, no arrests have been made or charges filed as of yet.

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Published on: January 20, 2014

OSHA Cites Municipal Company For Willful Violation and $63,000 After Two Workers Are Killed in a Trenching Collapse

By Carabin Shaw

Recently, Municipal District Services, LLC in Cypress, Texas was cited by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) for willful violation of health and safety laws. The reason was due to a trenching collapse that led to one worker’s death and another’s injury.

The tragic accident occurred when workers were attempting to repair a water main. Municipal District Services excavated a 16-foot long, five feet wide trench through a concrete road. Two workers went into the trench to clean and cut a broken pipe. Yet roughly 10 minutes later, the south wall of the trench caved in.

In citing Municipal District Services, OSHA’s area director stated that while excavating and trenching may be hazardous, they can be performed safely through use of proper safety equipment like trench boxes. The willful violation was given for failing to give vulnerable workers cave-in protection when working in an excavated area or trench. A violation is considered to be willful when the company does so intentionally, knowingly or with voluntary disregard for the law, or with indifference to the health and safety of workers. Municipal District Service’s willful violation carried a penalty in the amount of $63,000. The company now has 15 days from receiving the OSHA citation to do one of the following: comply with the requirements, request a conference with the San Antonio office of OSHA, or contest the citation in front of the Independent Occupational Safety and Health Review Commission.

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Published on: January 14, 2014

Teen Who Killed Four in a Drunk Driving Accident May Face Jail Time After All

By Carabin Shaw

Many in Texas and across the United States were horrified to learn the outcome of a drunk driving case in which four people were killed. Ethan Couch, 16 years old, pleaded guilty to intoxication manslaughter and intoxication assault in Tarrant County court. In return Judge Jean Boyd sentenced Couch to 10 years probation. Prosecutors criticized the judge for so easily accepting the “affluenza” defense, and for giving a lighter sentence than many would receive for such a crime. However, Couch may end up yet serving time if the district attorney has his way.

The tragic case began back in June 2013, when Couch and several of his friends robbed a Wal-Mart store before they got into Couch’s Ford pickup truck and drove at 89 miles per hour down the Burleson-Retta road in southern Tarrant County. Couch, the driver, had a blood alcohol level of more than three times the legal drinking limit when he plowed into four people stopped by the side of the road. They included a mother and daughter who had gone to help a stranded friend, the friend, and a youth pastor who had stopped to help. Couch’s collision also left one of his friends critically injured.

In court, Couch’s attorneys argued that Couch suffered from “affluenza”: he had grown up rich and had received everything he wanted, making him incapable of knowing right from wrong. Couch elected to have Judge Boyd sentence him rather than face a jury. He stood to receive up to 20 years in prison, but instead, Judge Boyd ordered that he be released to his parents and be placed at Newport Academy treatment facility, which cost $450,000 per year, which his parents would be required to pay. Couch would remain for at least three months. He has already been twice cited for driving at 89 miles per hour while under the influence, and pleaded no contest. Two of his requirements were to take an alcohol awareness class and do 12 hours of community service.

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Published on: January 7, 2014

Texas Military Veteran Sues Medical Device Company After Plate in His Leg Breaks Twice

By Carabin Shaw

A Texas military veteran recently brought a lawsuit against a medical device company after the plate in his leg broke for the second time. Sergeant Don Gustafson, a veteran of the Marine Corp and Navy Reserve, sued Zimmer, Inc. in state court in Collin County, claiming that the medical device company created an unsafe product and lied about it. Zimmer, Inc. sells devices ranging from knee to hip devices and generates earnings of $4 billion per year worldwide.

The situation began back in 2007, when Gustafson broke both bones in his lower leg in a motorcycle accident. He had a plate installed to stabilize the leg that was manufactured by Zimmer, Inc. Sometime later, the plate broke and Gustafson was forced to have a new one installed. He contacted the company to let them know what happened, and was allegedly told that there was nothing wrong with the product. Gustafson believed the company’s claims, and so he had the same type of plate installed in his leg. One year later, after suffering pain in that location, Gustafson had an X-ray, which showed that that plate was broken as well.

Gustafson claims that as a result of the plate being broken, he suffered so much damage in his lower leg, his doctors discussed amputating it prior to his third surgery. His complaint came to the attention of the federal Food and Drug Administration (FDA), which requires that companies like Zimmer, Inc. report every device failure within 30 days of it taking place. Gustafson claims that Zimmer, Inc. was not reporting every device failure. Instead, the company allegedly sometimes waited months to report a problem (like Gustafson’s), and its employees operated under the belief that they did not need to report every problem, just the ones reported to them by a physician.

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Published on: December 27, 2013

South Texas Jury Awards $281 million to family of man killed in Eagle Ford Shale Truck Accident

By Carabin Shaw

On December 7, 2013, a jury in South Texas found that Heckmann Water Resources Inc., an oil patch supplier near San Antonio, Texas, negligently failed to maintain a tractor-trailer truck that caused the death of Carlos Aguilar. The lawsuit stems from a May 2012 accident in which Aguilar, a U.S. Army veteran, husband, and father of seven, was doing work at the Eagle Ford Shale oilfield when a drive shaft broke off from under a Heckmann tractor-trailer traveling at 67 mph. The 20-pound part crashed through the windshield of the pickup truck that Aguilar was riding in, killing him.

Aguilar’s family filed suit against Heckmann and one if its employees, alleging that Heckmann failed to properly maintain the tractor-trailer. The jury ultimately found the company negligent and awarded Aguilar’s family (his parents, wife, and seven children) $281 million, which included $181 in compensatory damages and $100 million in punitive damages against Heckmann. The jury did not find Heckmann’s employee negligent. Heckmann’s Scottsdale, Arizona-based parent company, Nuverra Environmental Solutions, plans to appeal the decision. The verdict is one of the largest verdicts in Texas history.

Texas is by far the largest producer of crude oil and natural gas in the United States. In addition, the Eagle Shale Ford area continues to grow. There are currently 265 oil rigs operating in Eagle Ford Shale, compared to only 158 operating rigs in 2010. This means more oilfield workers and likely more accidents both at the oilfield rig and in and around the area involving trucks transporting supplies. In fact, according to the Texas Department of Transportation, the largest recent jumps in fatal traffic accidents are those involving commercial vehicles.

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Published on: December 20, 2013

Multi-Million Dollar Verdicts Awarded in Two Separate Topamax Birth Defect Lawsuits – Gurley v. Ortho-McNeil-Janssen Pharmaceutical and Czimmer v. Ortho-McNeil Janssen Pharmaceutical

By Carabin Shaw

On November 18, 2013, a Philadelphia jury awarded over $10 million to a family whose son was born with a cleft palate and other birth defects after being exposed to the drug Topamax during his mother’s pregnancy. More specifically, in Gurley, et al. v. Ortho-McNeil Janssen Pharmaceutical, Haley Powell was prescribed Topamax for treatment of epilepsy and migraines. More than a year after she began taking the drug, she became pregnant and continued to take it throughout her pregnancy after being told by doctors that the drug was safe.

After their son, now five years old, was born with birth defects that will require at least five surgeries before turning age 21, the South Carolina couple sued the drug manufacturer, Janssen Pharmaceuticals, Inc. (formerly Ortho-McNeil-Janssen Pharmaceutical) in a Pennsylvania state court. The couple alleged that the company failed to warn the Powells doctor that Topamax taken during pregnancy could cause birth defects, despite the company allegedly being aware of the serious risks as early as 1997. Even though the judge threw out most of plaintiffs’ claims against the drug manufacturer, including strict liability-design defect, negligent design, gross negligence and express breach of warranty, and also barred a bid for punitive damages, the jury ultimately found that Janssen negligently failed to warn the patient and the doctor of the risks associated with Topamax when used by patients during pregnancy and awarded the family over $10 million in damages.

The Gurley case was the second of approximately 134 cases pending in Philadelphia relating to Topamax tried in court. Notably, it is also the second largest verdict in recent months against Janssen Pharmaceuticals, Inc., a subsidiary of Johnson and Johnson. In October 2013, a Philadelphia jury in Czimmer v. Janssen Pharmaceuticals, Inc. issued a $4.02 million verdict in favor of April Czimmer, a Virginia woman who took Topamax from August 2006 through February 2007 to treat migraines. Czimmer subsequently gave birth to a boy born with a cleft lip in September 2007. She alleged that she would not have taken the drug for more than six months had she known the risks associated with it. The jury ultimately found that Janssen was negligent when it failed to warn healthcare providers of the extent of the risk of birth defects from Topamax, and awarded approximately $562,000 in future health care costs to Czimmer’s son and an estimated $3.4 million for pain and suffering.

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Published on: December 13, 2013

Comparative Negligence in Drunk Driving Accidents in Texas

By Carabin Shaw

On December 16, 2011, Sarah Patton filed suit against the Texas Department of Transportation in Jefferson County District Court on behalf of the estate of Pamela Freeman, who was killed in a car accident (Case No. B191-484). The complaint alleged that the Texas Department of Transportation acted negligently by allowing water to accumulate on the roadway because of inadequate drainage. According to the lawsuit, on February 12, 2011, Freeman was exiting Interstate 10 when her vehicle hydroplaned, causing her to leave the roadway and strike a sign and light pole. The accident eventually led to her death several months later.
Patton later amended her complaint, naming both Toyota and APAC-Texas as defendants, and alleging that a design flaw and water left on the road from construction work carried out caused the crash. On October 3, 2013, APAC-Texas filed a motion for summary judgment, arguing that Freeman’s BAC exceeded the legal limit at the time of accident. The motion also contended that investigating officers at the scene of the accident confirmed that there was no water left on the road from construction and, instead, the accident had resulted from Freeman’s speeding. Based on these facts, APAC argued that it should be dismissed from the case since there was no evidence to support Patton’s claim that APAC was negligent when performing construction work on the road in question. Then, on November 2, 2013, Toyota followed APAC’s lead and asserted that Patton’s amended complaint failed to allege or identify the specific product defect theories or any defective components on Freeman’s vehicle. Ultimately, on November 6, 2013, Patton filed a notice stating that she non-suited all her claims against all defendants, meaning that she released all of the defendants from liability.

As mentioned previously on this blog, unfortunately, in 2012 Texas had the largest increased in fatalities of any state in the country, with an 11% increase in overall traffic fatalities and a 6.6% increase in drunk driving deaths. More specifically, according to the Texas Department of Transportation, there were 1,099 people killed in motor vehicle traffic crashes where a driver was under the influence of alcohol, which accounts for 32.3% of the total number of people killed in motor vehicle crashes. At the same time, there were only five fatalities where defective vehicle products were a contributing factor, and no reported fatalities due to standing water on the road.

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Published on: December 6, 2013

The National Highway Traffic Safety Administration Issues Updated Safety Ratings and Releases 2012 Traffic Fatality Statistics Revealing Texas as State With Highest Increase in Traffic Fatalities

By Carabin Shaw

Traffic Fatalities Increased in 2012

The U.S. Department of Transportation’s National Highway Safety Administration (NHTSA) recently released its 2012 Fatality Analysis Reporting data. Unfortunately, after six consecutive years of declining fatalities on U.S. highways, the data indicates that highway crashes and deaths increased in 2012. Specifically, fatalities increased to 33,561 in 2012, which is 1,082, (or 3.3%) more fatalities than in 2011. In addition, the number of injured persons increased by 145,000 from 2011. Almost three-quarters of the fatalities occurred in the first three months of 2012, and most of those individuals involved in the fatalities were motorcyclists and pedestrians. For the first half of 2013, early estimates on crash fatalities reveal a decrease in deaths for the same time period in 2012.

Notably, the increase in crashes and resulting injuries and fatalities does not appear to be associated with one particular issue, and crashes for some traditional risk factors, including young drivers, actually fell in 2012. Other notable statistics include:

• There were 10 times as many unhelmeted motorcyclist fatalities in states, such as Texas, without universal helmet laws (1,858 unhelmeted fatalities) as in states with universal helmet laws (178 unhelmeted fatalities). These states were nearly equivalent in total resident populations.

• Though fatalities from alcohol-impaired driving increased from 2011 to 2012, fatalities from crashes involving young drivers (16- to 20-year olds) and alcohol decreased by 15%.

• For the past decade, males have consistently made up about 70% of motor vehicle fatalities.

• There was a 3.7% increase in the number of people killed in crashes involving large trucks, and 61% of large-truck occupants killed in 2012 died in single-vehicle crashes.

Overall, while 13 states experienced decreases in overall traffic fatalities and eighteen states experienced decreases in drunk driving deaths, Texas was not part of either group. In fact, Texas had the largest increase in fatalities of any state, with an 11% increase in overall traffic fatalities and 6.6% increase in drunk driving deaths.

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Published on: November 27, 2013

California Jury Awards $150 Million to 13-Year-Old Girl in Wrongful Death Trucking Accident Case – Asam v. Ortiz and Bhandal Bros. Trucking

By Carabin Shaw

In early November 2013, a Los Angeles Superior Court jury awarded over $150 million in damages to a 13-year-old year girl who witnessed three members of her family burn to death following a car accident on a Southern California freeway. This verdict could be one of the largest of its kind.
In this case, back in November 2009, the Asam family was traveling from California to Oregon for the Thanksgiving holiday when their SUV rear-ended a semi-trailer truck parked on the shoulder of a California freeway. The plaintiff (then 9-years-old) and her 11-year old brother managed to escape from their family’s SUV after it struck and got caught under a semi-trailer truck parked on the shoulder of the freeway. However, they witnesses the deaths of their parents and brother, who were burned alive when their family’s trapped SUV caught fire.
The lawsuit alleged that the driver of the truck, Rudolph Ortiz, pulled his truck over to the side of the road to sleep. In doing, he failed to use the emergency signals and ignored written warnings that stopping on the shoulder was allowed only in emergencies. Attorneys for the defendants argued that Ortiz stopped to take medication for a severe headache, which constituted an emergency. Defendants also alleged that the law was not broken as the semi-trailer truck was parked on the dirt road to the right of the shoulder. Finally, defendants alleged that plaintiff’s father was also negligent for attempting to stop the family’s SUV on the shoulder after the SUV allegedly struck debris on the freeway.

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