Court's Charge. Surgeon sent a tissue sample to an independent pathologist who diagnosed the patient with Stage 3 cancer. The patient did not learn of the cancer until it was rediscovered much later, at which time it was diagnosed as terminal. The parties disagreed as to whether the doctors received timely notice of the pathologist's findings and whether the hospital discharged its duty in this regard. The Texas Supreme Court reversed a judgment for the plaintiffs against the hospital. The Court held that the trial court properly refused a "new and independent cause" instruction aimed at the doctors' failure to independently discover the test results because such failure was foreseeable and could not be a "superseding" cause of the delay in treatment. The Court held that the trial court did err in failing to submit a "loss of chance" instruction requiring a fifty percent (50%) or greater chance of survival for proximate cause. The Court held that the instruction was required notwithstanding the fact that both sides acknowledged that this was the law in argument to the jury. Finally, the Court held that the trial court improperly refused to instruct the jury not to consider the acts or omissions of the pathologist in determining the negligence of the hospital. The Court held that the jury instruction that the hospital "acts or fails to act only through its employees, agents, nurses, and servants" made it impossible to determine if the jury considered the pathologist an "agent" and, as such, refusing the omitted instruction was "presumed" harmful error under TEX. R. APP. P. 61.1(b). Columbia Rio Grande Healthcare LP v. Hawley, __ S.W.3rd __ (Tex. 6/5/09).

Governmental Liability/Jury Charge. The decedent lost control of her vehicle while crossing a patch of loose gravel on a highway that had been repaved the previous day. The ensuing wrongful death case against the State of Texas was tried on the theory that the gravel was a special defect within the meaning of the statute. The Texas Supreme Court reversed a verdict for the plaintiffs holding that, as a matter of law, a layer of loose gravel is not an "excavation" or "obstruction" and, accordingly, was not a special defect. The Court originally remanded the case for retrial on a premise liability standard but on motion for rehearing dismissed the case. The Court held that the plaintiffs had failed to submit/obtain the findings necessary for an ordinary premise defect claim and since the defendant had objected to omission of these elements, they could not be deemed in plaintiffs' favor. Texas Department of Transportation v. York et al, __S.W.3rd__ (Tex. 5/22/09); Accord, Texas Department of Transportation v. Gutierrez, __ S.W.3rd __ (Tex. 5/22/09) (loose gravel on road is not a special defect; ordinary premise liability findings cannot be deemed over objection to their omission.)

Governmental Liability. Following his arrest Posey was placed in a holding cell with a cordless phone. After making abusive calls he was transferred to a cell with an inoperative telephone but one which had a cord. Exposed wires on the handset permitted him to form a ligature which he used to commit suicide. The Texas Supreme Court reversed the lower courts and dismissed the case holding that the Texas Tort Claims Act did not apply. The Court held that the Act's waiver of immunity for "personal injury and death so caused by a condition or use of tangible personal or real property" only applies to government use of property. In this case, it was the decedent's use of property -- not the county's -- that caused his death. Further, the failure to place cordless phones in all of the cells was not a "use" of property -- it was "at best, a misuse or a non-use, neither of which waives immunity under the Act." Finally, the Court held that there was no causal nexus between the condition of the exposed wires and the injury because the exposed wires did not cause the injury but rather constituted no more than a condition of the property that the decedent used to commit suicide. Whether or not the decedent was properly assessed as a suicide risk had no bearing on liability under the Act. Dallas County v. Kim Posey, __ S.W.3rd __, (Tex. 5/22/09).

Governmental Liability. Plaintiff was injured when he fell at night on a downtown sidewalk. He mistakenly believed that steps leading to the sidewalk extended the full width of the walkway. His premise defect claim under the Texas Tort Claims Act was dismissed by the Court of Appeals which held that the Act does not waive immunity for claims based on a governmental unit's design decisions which are discretionary acts. The plaintiff's claim that the stairs should have stretched across the entire width of the sidewalk or that the City should have provided a safety feature such as a handrail, warning sign, or lighting were design complaints for which there could be no liability. City of Austin v. Silverman, __ S.W.3rd __ (Tex. App. -- Austin 5/21/09).

Indemnity. A patient sued her doctor and a drug manufacturer for injuries caused by a prescription diet drug. After both defendants obtained favorable summary judgments based on the statute of limitations the doctor filed a cross-claim against the manufacturer for indemnity under TCPRC §82.002(a) which provides that "a manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action." The Court of Appeals affirmed a summary judgment for the manufacturer holding that a doctor who prescribes drugs during the provision of medical services to patients is not a "seller" and therefore is not entitled to indemnity under §82.003(a). Hadley v. Wyeth Laboratories, __ S.W.3rd __ (Tex. App. - Houston [14th] 5/28/09). PDF

Civil Procedure: TCRPC § 33.004. As part of a settlement agreement the defendant designated the appellees as responsible third parties to enable the plaintiff to sue them when suit would otherwise have been barred by the statute of limitations. The trial court granted the appellees summary judgment based on limitations. The Court of appeals reversed holding that TCRPC § 33.004 defeated the limitations defense notwithstanding the fact that the designation was made by a settling defendant pursuant to a settlement agreement. The Court held, further, that § 33.004 did not permit a responsible third party who had been added to the suit to file a motion to strike its own designation: it had lost its status as a responsible third party and was no longer subject to being stricken under §33.004(l). Flack v. Hanke, __ S.W.3rd __ (Tex. Civ. -- San Antonio 5/27/09).

Personal Injury. Two trucks collided, then veered off the road resulting in the death of one driver when his truck hit a car, then a retaining wall, then caught fire. Although there were other parties involved at trial, including the truck manufacturer, this appeal dealt with the wrongful death claim filed by the decedent truck driver's family against the driver and owner of the other truck. The defendants asserted a limitations defense. The adult family-members relied upon the 60 day grace period, that ensues when a responsible third party is designated, to excuse their late-filed claim. TCPRC §33.004(e). The Court of Appeals rejected this argument, holding that language in the truck manufacturer's pleading blaming the defendant truck driver was insufficient to qualify as a "designation." In order for a responsible third party to be "designated" there must be a motion for leave to designate and a favorable ruling on same. The Court also rejected the family's claim that one of the plaintiffs who was a minor -- and for whom limitations was tolled -- could prosecute the wrongful death action on behalf of the entire family under TCPRC §71.004(b). The Court held that while §71.004(b) permits one statutory beneficiary to initiate a wrongful death action on behalf of the other beneficiaries, this section does not resurrect a beneficiary's claim that is already time barred. With regard to the claims of the minor and the estate, the Court held that evidence that the trucking company had failed to conduct the type of background check required by statute was sufficient to support a finding of negligent entrustment. The Court upheld the jury award of $400,000 to the decedent' estate for the physical and emotional pain he suffered prior to his death. The Court noted that consciousness of approaching death is an element to be considered and pointed to evidence that the decedent looked "very panicked" during the time the vehicle was leaving the road before the second collision and the fire. Ruiz et al v. Guerra et al, __ S.W.3rd __ (Tex. App. -- San Antonio 5/27/09).

Personal Injury. Wrongful death action arising out of a motor vehicle collision that occurred when the defendant crossed the median and collided with the decedent's vehicle. The defendant pleaded guilty to criminal negligence but contested liability at trial. The jury found the defendant 98% negligent, the decedent 2% negligent and awarded $810,000. The Court of Appeals affirmed a judgment for the plaintiff. On appeal, the defendant complained that the trial court erred by refusing a requested instruction that the decedent's failure to wear a seat belt was negligence per se. The Court of Appeals - without deciding whether a seat belt instruction is properly submitted relative to negligence or to mitigation of damages - held that the failure to submit the instruction probably did not cause the rendition of an improper judgment because the jury found the decedent negligent; the per se instruction would have had no bearing on the apportionment of negligence, only the existence of negligence. The Court also rejected the defendant's argument that the testimony of the police officers, dealing with the location of the collision and the speed of the defendant's vehicle, was unreliable, inadmissible and without evidentiary value. Finally, the Court held that the evidence was legally and factually sufficient to support the liability and damage findings. Thomas v. Uzoka, __ S.W.3rd __ (Tex. App. - Houston [14th ] 5/28/09). PDF

Medical Malpractice. Lawsuit arising out of the death of a nursing home resident. The plaintiffs timely filed their Chapter 74 expert report authored by Expert A. Plaintiffs later designated Expert B as their testifying expert who advanced criticisms of the defendant physicians which did not match the criticisms contained in Doctor A's report. The trial court denied the physicians motion to dismiss. The Court of Appeals affirmed, holding that the plaintiffs could maintain a health care liability claim based on an act or theory of negligence not found in the Chapter 74 report -- a testifying expert is not limited to the acts or theories of negligence discussed therein. Pedroza v. Toscano, __ S.W.3rd __ (Tex. App. -- San Antonio 5/20/09).

Trusts/Limitations. An action to remove a trustee -- regardless of the underlying grounds on which it is brought -- is not subject to a statute of limitations and may be brought at any time. Accordingly, the four-year statute of limitations applicable to breach-of-fiduciary-duty suits does not apply. Ditta v. Conte, __ S.W.3rd __ (Tex. 6/5/09).

The 81st Texas Legislature failed to renew the TRCC created by Title 16 of the Texas Property Code. The Commission will wind down over the next 15 months and cease to exist on September 1, 2010. See, Tex. Gov. Code §325.017. HB 1959 would have given the Commission limited authority during the wind-down period and would have clarified when a party can file suit in those cases in which a claim is pending. It also provided that:

It is the intent of the legislature that the rights, duties, and obligations of parties to litigation pending on September 1, 2009, or to a cause of action that accrues before September 1, 2009, are not substantively impaired by the expiration of Title 16, Property Code. A court shall exercise its equitable jurisdiction to effectuate that intent." HB1959 §5.01(j).

However, HB1959 did not make it out of the Legislature. With Sunset, the Texas Residential Construction Commission Act expires by its own terms on 9/1/09. §401.006. This expiration eliminates the Commission-created statutory warranties, §430.001, §430.002, and the statutory dictate that such warranties "supersede all implied warranties." §430.006.

Given the political landscape of this State, the last word on this matter has not necessarily been written. One would do well to keep in mind Hemmingway's observation that the sun also rises.

After a West Virginia jury found Massey Coal Company guilty of fraud and awarded the plaintiffs $50 million in damages, Massey's chairman and principle officer donated $3 million in campaign contributions to candidate Brent Benjamin who was running for, and succeeded to, the State Supreme Court. This was more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee. Justice Benjamin refused to recuse himself and was part of a 3-2 majority that reversed the award. The U.S. Supreme Court held that Justice Benjamin's failure to recuse himself violated due process: the donor/appellant's significant and disproportionate influence coupled with the temporal relationship between the election and the pending case caused the probability of actual bias to rise to an unconstitutional level. Caperton et al v. A.T. Massey Coal Co., Inc, __ U.S. __ (6/8/09).

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

There are no travel or additional charges for mediations within 100 miles of Austin.

I am committed to providing you with the most productive and professional mediation service possible. I welcome your comments and your suggestions about any and all aspects of the mediation process.

Please use the Forward Email link below to send this newsletter to anyone you think might have an interest in receiving it. If you are already overwhelmed with e-mail and do not want to receive future issues, you may unsubscribe as indicated below.

Best Regards,

Michael Curry

Employment/ADA. Employee began working on a temporary basis for the employer in December of 2000 and was hired full-time in April of 2001. In the summer of 2002 she began experiencing symptoms of what was later diagnosed as a recurrence of Chronic Fatigue Syndrome ("CFS"), a condition she had previously experienced and from which she had recovered in 1987. Her condition continued to deteriorate and in February, 2003 she provided her employer a doctor's note requesting that she take two weeks off from work, which the employer granted. Her doctor then authorized her to return to work with accommodations. Shortly thereafter she was fired for misrepresenting her medical history on a pre-employment medical questionnaire. The EEOC filed a complaint on behalf of the employee, alleging that her (former) employer, had failed to accommodate her known substantial limitations and discharged her in violation of the Americans with Disabilities Act. The district court granted summary judgment for the employer. The Fifth Circuit reversed and remanded holding that the record raised a fact issue on whether CFS caused the employee a substantial limitation on her major life activities of caring for herself, sleeping, and thinking and, thus, qualified as a disability at the time she was discharged. The Court rejected the assertions that the indefinite duration of her condition, the fact that it was partially responsive to medication and the fact that she could perform her job duties while experiencing symptoms made it a non-disabling impairment. With regard to the employee's discharge, the Court held that a jury reasonably could find that any errors or omissions, on the pre-employment medical questionnaire were used merely as a pretext by the employer to terminate her and that the real reason for her discharge was her disability or her request for accommodations, or both. EEOC v. Chevron Phillips Chemical Co., __ F.3rd __ (5th Cir. 6/5/09).

Civil Procedure. In this family law case the wife was duly served by service of process with a petition to modify the parent child relationship but she did not file an answer. Thereafter, the husband filed an amended petition seeking a more onerous judgment than that prayed for in the original petition. The amended pleading was served by certified mail pursuant to TRCP Rule 21a. The certified mail was returned unclaimed and a default judgment was taken. The wife sought to set aside the judgment on the ground that she was not served with the amended pleading. The Texas Supreme Court held that although it is no longer necessary to issue a new service of citation to complete service of a more onerous pleading on a defendant who has not answered, it is necessary to complete service pursuant to TRCP Rule 21a which, the Court concluded, was not done here. The amended pleading did not contain a certificate of service and the presumption of service under Rule 21a was destroyed when the certified letter was returned unclaimed. Evidence that a copy of the amended pleading sent by regular mail was not returned, testimony that the wife was aware of the litigation, and her timely motion to set the subsequent modification order aside despite the fact that the modification order, like the amended petition, was returned unclaimed, did not establish constructive notice of the amended pleading. In the Interest of E.A and D.A., Children, __ S.W.3rd __(Tex. June 5, 2009)

Discovery. The plaintiff served written notice of a health care liability claim on the defendant physician and included the prescribed form for release of medical information. After suit was filed the plaintiff obtained a protective order prohibiting the defendants from having ex parte communications with the plaintiff's treating physicians, even those from whom the plaintiffs had authorized the release of medical information. The Texas Supreme Court held that the trial court abused its discretion. The Court held that the TCPRC §74.052(c) authorizations permitted conversations with health providers, not simply receipt of written records. The Court found it unnecessary to reach the question of whether §74.052(c) authorizes ex parte conversations because the plaintiffs had not adequately identified which physicians had irrelevant medical information or the treatment periods during which such information was collected and thus had not shown a specific and demonstrable injury. The Court also held that §74.052(c) disclosures are not preempted by HIPPA. In re Lester Collins, MD, __ S.W.3rd __ (Tex. 6/5/09).

Products Liability. The plaintiff was injured when he fell from a 5 inch wide top edge of a trailer upon which he was standing to facilitate the loading of fertilizer. The plaintiff alleged that the trailer was defectively designed in two ways: (1) the top rail of the trailer was too narrow and presented tripping hazards; and (2) the top two rungs of the ladders mounted on the trailer were unnecessary and allowed the operator to climb to the top of the trailer. The Texas Supreme Court affirmed the trial courts summary judgment for the defendant holding that a weighing of the risk-utility factors of the design compelled the conclusion that the design of the trailer was not defective as a matter of law. Timpte Industries, Inc v. Gish et al, __ S.W.3rd __ (Tex. 6/5/09).

Derivative Suits. A shareholder filed a derivative action seeking to halt a proposed merger. No injunction hearing was held and the merger went forward. The board of directors of the merged corporation sought to have the suit, amended to seek rescission and damages, dismissed on the grounds that the pre-suit notice was inadequate. The Texas Supreme Court granted the writ of mandamus and ordered the suit dismissed. The Court held that the pre-suit notice failed to meet the requirements of Art. 5.14 of the Texas Bus. Corp. Act because the letter failed to identify the shareholder making the demand and failed to "set forth with particularity the act, omission, or other matter that is the subject of the claim or challenge." In re Schmitz, __ S.W.3rd __ (Tex. 5/22/09).

Employment/Civil Rights. Plaintiff sued her former employer alleging discrimination. The Court of Appeals affirmed a dismissal holding that the plaintiff's administrative complaint with the Texas Commission on Human Rights was untimely, not having been filed within 180 days of the alleged discriminatory conduct. The Court rejected the plaintiff's reliance on the continuing violation doctrine as a means to toll the running of the 180 day period: the only misconduct alleged to have occurred within the filing period -- a reprimand for having a cluttered desk -- did not qualify as an actionable instance of discrimination or evidence of a hostile work environment. Having failed to allege that her termination was itself discriminatory the plaintiff was left without an actionable act within the 180 day filing period and, therefore, the continuing violation doctrine did not apply. Olivarez v. The University of Texas at Austin, __ S.W.3rd __ (Tex. App. -- Austin 5/21/09).