East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

DeGrate v. Executive Imprints (Published) No evidence summary judgment affirmed in negligence and design defect case over exploding candle.  The precedential value of this case is probably limited because the Tyler court questions the briefing presented by the DeGrates.

Mrs. DeGrate got a new scented candle marketed by Executive Imprints.  After letting it burn for an hour or so, she went to blow it out.  The flame just got bigger.  She dropped the candle.  The hot wax splattered everywhere, including on her.  She and her husband bring many claims including negligence and strict liability.

Executive Imprints filed a no evidence motion for summary judgment.  The DeGrates responded with the report and affidavit of a Ph.D chemist.  The chemist believes that the candle had the wrong sort of wax, the wax pooled up too much, and the design of the candle allowed the wax to be heated to the flash point.

The Tyler court finds fault with the expert.  He doesn't back up his opinions.  So they're not evidence.

The Tyler court also finds fault with the briefing of the DeGrates.  In a footnote, the Tyler court says that the entirety of the DeGrate's briefing on the product liability claim was:

Under the doctrine of strict product liability, Appellants showed through the tendered summary judgment evidence that the candle was of a defective design since it was without a reasonable alternative design, as a fundamental element, marketed, manufactured and was unsafe for its purposes at the time it left control of Appellee and was sold posing an unreasonable risk factor for consumers.

So, if anyone cites this case against you, point out the footnote.

• Email This
• Print
• Comments
• Trackbacks

Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

• Email This
• Print
• Comments
• Trackbacks

Chapman v. TDCJ-ID (Published Memo): An inmate on a work detail fell from a ladder.  He sues, alleging improper supervision, and a defect in the ladder (lack of non-slip rubber feet).  The suit is dismissed as frivolous under Texas Civil Practice and Remedies Code Chapter 14.

Following the Chapter 14 standards the trial court found that the claim's "realistic chance of ultimate success is slight."

The Tyler court reviews that decision under an abuse of discretion standard.  The State of Texas is immune from suit unless it has given permission to sue.  Permission to sue has been given for the "use of tangible personal property."  But no such permission has been given for cases of mixed use and nonuse.  Chapman's complaint about the ladder and being left alone is a mixed claim.  The claim was therefore frivolous.

• Email This
• Print
• Comments
• Trackbacks

Home State County Mutual Ins. Co. v. Horn as assignee of Rowe, administrator of the Estate of Hulett (Published Memo): Settlement demands and Stowers liability must expressly match up.  Horn didn't expressly offer a release of Home State's insured.  The trial court imposed Stowers liability via a summary judgment for Horn.  The Tyler court reverses, and renders judgment for Home State on their competing summary judgment motion (which had been denied by the trial court).

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks

Parrish v. ETMC Athens (Published Memo): The trial court was within its discretion to deny an eve-of-trial motion to reopen discovery by a med-mal plaintiff.  The plaintiff did not want any more discovery from the defendant, but instead was asking for more time to conduct discovery on surgeries that she contends were related to her injuries.  But that was information under her control that, pursuant to her duty to supplement discovery responses, she should have provided to the defendant.  From the opinion, this sounds more like a back-door continuance motion than a discovery case.  The trial resulted in a defense verdict.

• Email This
• Print
• Comments
• Trackbacks

Back in March, the Supreme Court of Texas overturned the Tyler court in a med mal case, In re Jorden.  The issue was whether medical malpractice tort reform statutes trumped the rule of civil procedure permitting pre-suit depositions to investigate claims.  The Tyler court said "No."  But the high court said "Yes."   Actually, they said: "Unquestionably, requiring an expert report without much discovery makes it harder to pursue a health-care liability claim. But allowing health-care claims to be pursued before anyone knows whether something was done wrong has costs too. These competing concerns were once left to the discretion of each trial judge, but the Legislature has withdrawn that discretion after finding that the costs of unrestricted discovery was being afforded too little weight."  So no more investigatory depositions in med mal cases.

In Friday's orders, the Supreme Court granted oral argument in another med-mal case out of the Tyler court, In re Collins.  Date and time TBA.  In its 2007 decision, the Tyler court held that med-mal plaintiffs are entitled to seek protective orders narrowing the statutorily-required medical records release so as to prevent the defendant doctors and/or hospitals from having ex parte contact with the plaintiff's non-party doctors.  Doctor Collins contends in the Texas Supreme Court that the required medical records release is a full and complete waiver of the physician-patient privilege, allowing the doctor who gets sued to talk to any of the plaintiff's other doctors whenever he wants -- and there's nothing the courts can do about it.

Reading tea leaves is always dangerous, but the fact that oral argument has been granted is not an encouraging sign for the Tyler court's decision.  It's hard not to anticiapte another Jorden situation, where the Tyler court's carefully balanced judicial approach is set aside on grounds that the Texas Legislature has enacted sweeping, "one size fits all" laws that take away the the judicial branch's ability to weigh these issues on a case-by-case basis. 

• Email This
• Print
• Comments
• Trackbacks (1)

Spitzer v. Berry (Published): The doctor complained to the trial court that, though a report was filed on time, it didn’t give him fair notice of the malpractice case against him. The trial court denied the doctor’s motion to dismiss. The court of appeals affirmed that denial.  The report complied with the statute.

Here’s the gist of the expert report of a board certified general and thoracic surgeon: Tommy Berry had a colonostomy reversal and hernia repair at ETMC Athens. Because of his pre-existing respiratory problems (chronic obstructive pulmonary disease) Berry needed steroids. But steroids can impair the body’s immune system. Berry needed his immune system to be going full-blast to ward off any post-operative infections. Not surprisingly, infections are a particular concern following colon surgery.  Berry was put on an antibiotic regimen, but his doctor then allowed him to go off of antibiotics for four days. That’s all it took for an infection to set in. By the time antibiotics were resumed, it was too late. The infection overwhelmed Mr. Berry -- he gave it his all until, like John Henry, his heart gave out.

Now for a direct quote from the report: "[the] hiatus in antibiotic therapy allowed development and progression of the infections that led to irreversible sepsis and death. Had his antibiotic therapy been maintained . . . , the lethal infections would not have developed and his death secondary to overwhelming sepsis not occurred."

Having read that, can you figure out the alleged malpractice?

So could the Tyler court.

Update: Dr. Spitzer filed a petition for review in the Texas Supreme Court on April 7, 2008.

• Email This
• Print
• Comments
• Trackbacks (1)

TxDOT v. Anderson et al. (Published): To show that the State of Texas had actual notice of a claim, you've got to put your hands on State documents showing that the State was aware of its fault within six months of the event.

When should the State of Texas have to bother itself with investigating a potential claim?  If it's your claim, you'd say the answer is "always."  But let's be real.  Nothing would ever get done if the State of Texas really had to investigate its culpability every time something bad happened on State property.  So there's got to be line drawn somewhere.'

First, the easy part.  The Tort Claims Act says that parties must give the State written notice of their claim within six months of the event complained of. Tex. Civ. Prac. & Rem. Code Ann. § 101.101.  See, there's a nice, easy to figure out line.  Either there's a letter in the file or there isn't.

Now the hard part.  If the claimant doesn't send the letter in time, they still have the sovereign's permission to sue the sovereign as long as the sovereign had "actual notice" of the claim. Id.  As interpreted by the Texas Supreme Court, that means the State of Texas must have "subjective awareness of its fault" in the matter. Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004).

So, does that put the courts in the position of trying to read the mind of the State of Texas?  No.  It's not a matter of reading the State's mind.  It's a matter of looking at the evidence to see if the State, out of its own mouth, has shared its thoughts on the subject.

The facts of the case are sobering ...

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks