Economic Loss Rule. The Economic Loss Rule, providing that damage or loss to the product itself is compensable in contract (warranty ) but not in tort, is a damage rule not an affirmative defense. Further, a "no evidence" objection does not preserve a complaint that a jury question improperly combines tort and contract damages. Equistar Chemicals v. Dressar- Rand Company, __S.W.3rd__(Tex. 5/4/07). PDF

Personal Injury Contractor-invitee electrocuted by exposed wires while working in defendant's home successfully raised a fact issue sufficient to defeat summary judgment on the question of medical causation between the electrocution and his subsequent heart attack by proof of the prompt onset of symptoms following electrocution and expert medical testimony that such an electrocution could have caused the heart attack. When the onset of a heart attack occurs immediately after an electrocution, it is not necessary for an expert to testify to a reasonable medical probability that the electrocution caused the plaintiff's damages. Choice v. Gibbs, __S.W.3rd__ (Tex. Civ. App.-Houston [14th Dist] 4/12/07).

Discovery. Defendant who seeks to recover privileged documents that were mistakenly provided to its designated testifying expert witness may retrieve them under the "snap back" provision of Tex. R. Civ. P. 193.3(d) if the expert does not testify at trial. If the defendant stands upon it's testifying expert designation, the documents are discoverable under Tex. R. Civ. P. 192.3(e). In Re Christus Spohn Hospital Kleeberg, __ S.W.3rd__(Tex. Sup. Ct. 4/27/2007). PDF

Procedure. When medical records in the possession of the claimant's lawyer indicated that two doctors had not prescribed or administered a specific drug to the decedent, allegations to the contrary in the Original Petition supported sanctions under Chapter 10 TRCP. Low et al v. Henry, __S.W.3rd__ (Tex. Sup. Ct. 4/20/2007). PDF

Employment. A claim that an employment contract was breached by requiring the employee to perform duties substantially different from those which she had agreed to perform is not equivalent to a claim that an employment contract was breached through constructive discharge. The latter requires an employer to make conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign. Baylor University v. Coley, __S.W.3rd__ (Tex. Sup. Ct. 4/20/07). PDF.

Warranty. The implied warranty of suitability incident to a lease of commercial property may be expressly disclaimed in the lease by an enforceable "as is" clause. The contractual disavowal of reliance in an "as is" clause makes the lessee responsible for the condition of the building. Gym-N-I Playgrounds, Inc. v. Snider, __S.W.3rd__(Tex. Sup. Ct. 4/20/2007). PDF.

Arbitration. An arbitration clause is enforceable against an employee even though the employer exerted economic duress to force the employee to sign the new agreement containing the arbitration clause -- to which the employee expressly objected -- because the economic duress exerted by the employer pertained to the entire contract and not just the arbitration clause. The duress must relate exclusively to the arbitration clause to avoid arbitration. In Re RLS Legal Solutions and Yandell Rogers, __S.W.3rd__(Tex. Sup. Ct. 4/20/07). PDF.

Governmental Immunity. When the State initiates suit seeking damages under a performance bond, it waives immunity from a counterclaim that is germane to, connected with and defensive to the claims it asserts; the State retains immunity from suit to the extent the counter-claimant's damages exceed the amount necessary to offset the State's recovery. State of Texas v. Fidelity and Deposit Company of Maryland et. al., _S.W.3rd__ (Tex. 5/4/07) PDF

Contracts Lack of consideration (as opposed to failure of consideration) is not an affirmative defense that must be pled nor is it a condition precedent, the performance of which must be specifically denied. Further, a promise to fulfill an existing contractual obligation to do site work does not qualify as additional consideration which will transform a promise to pay additional monies for that work into a binding obligation. S.M. Wilson & Co., v. Urban Concrete Contractors, __S.W.3rd__ (Tex. Civ. App. -- San Antonio 5/16/2007).

A sharply divided San Antonio Court of Appeals construed the following language in Tex. Civ. Prac. & Rem. Code Ann. § 41.0105 (2006):

"In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant."

Justice Angelini's opinion reversed and remanded, holding that "section 41.0105 limits a plaintiff from recovering medical or health care expenses that have been adjusted or 'written off.' " Justice Hilbig concurred in the judgment only and Justice Stone filed a dissenting opinion. Mills v. Fletcher, __S.W.3rd__, (Tex. Civ. App.-- San Antonio 5/16/2007).

Meanwhile, the Legislature has passed HB 3281 which amends Section 41.0105 to limit its application to health care liability claims under Chapter 74 and to provide that even in those cases it does not apply to "a claim for future medical or health care expenses." When signed by the Governor, HB 3281 will take effect immediately -- as it appears to have passed by a greater than two-thirds majority in both houses -- but only apply to actions commenced on or after the effective date of the Act.

Thursday, June 21

Legislative Update CLE

9:00 a.m. - 9:35 a.m. Consumer Law,

9:35 a.m. - 10:10 a.m. Real Estate, Probate, and Trust Law

10:10 a.m. - 10:45 a.m. Business Law

10:45 a.m. - 11:20 a.m. Family Law

1:30 p.m. - 2:05 p.m. Government Lawyers

2:05 p.m. - 2:40 p.m. Poverty Law

2:40 p.m. - 3:15 p.m. Computer and Technology - Privacy/Confidentiality of Client Information

3:30 p.m. - 4:05 p.m. Litigation

4:05 p.m. - 4:40 p.m. Hispanic Issues

4:40 p.m. - 5:15 p.m. Criminal Justice

5:15 p.m. - 5:30 p.m. Workers' Compensation

Friday, June 22

Bench Bar CLE

9:00 a.m. - 10:15 a.m. Promising Practices From the Bench and Bar: What Judges and Litigators Like About Each Other

10:15 a.m. - 11:15 a.m. The New World of Arbitration: A Candid Debate

1:30 p.m. - 2:30 p.m. The Status of Our Seventh Amendment Guarantees

2:30 p.m. - 2:45 p.m. Report From the National Jury Summit

2:45 p.m. - 3:15 p.m. Why You Should Care About the Seventh Amendment

For Section Meetings, Other CLE, Further Details and Registration click here.

Fisher House

AnySoldier.com

Operation Gratitude

Let's Say Thanks

Yellow Ribbon Fund

TroopCarePackage.com

Arlington National Cemetery

Intrepid Fallen Heroes Fund

National Veterans Legal Services Program

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To facilitate scheduling, my mediation calendar is now online. You can access the calendar from my website www.mcmediate. com which also provides an e-mail link to schedule or hold a date for mediation.

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Best Regards,

Michael Curry