TORT LAW

SPRING 2008

Thao Chau v. Jefferson Riddle, M.D., W.L. 400399; LEXIS 120 (Tex. 2008)

Medical Malpractice; Good Samaritan Defense: When Thao Chau’s son was delivered by emergency C-section, he suffered an anoxic brain injury because Dr. Riddle improperly intubated him. Dr. Riddle had been called to the labor and delivery suite to administer anesthesia to Ms. Chau. One of Ms. Chau’s twins was not breathing on delivery, and the nurses and resident could not intubate the baby. The attending physician asked Dr. Riddle to intubate the baby, which he did, but Dr. Riddle failed to ensure that the tube was in the baby’s lungs. Dr. Riddle’s oversight was discovered twelve minutes later after the baby suffered permanent brain damage. Dr. Riddle moved for and obtained summary judgment under the Good Samaritan defense by arguing that his job duties included attending to Ms. Chau and that when he deviated from those duties to intubate the baby, he was responding to an emergency. Held: The Texas Supreme Court reversed and remanded holding that there was a fact question about whether Dr. Riddle fell within the “associated by the admitting or attending physician” exception to the Good Samaritan defense.

Ogletree v. Matthews, W.L. 4216606; LEXIS 1028 (Tex. 2007)

Medical Malpractice; Expert Report: During a medical malpractice case, the defendant urologist objected to the plaintiffs’ expert report because it was authored by a radiologist. The trial court granted the plaintiff’s an extension to correct the report. The defendant appealed arguing that because the radiologist could not opine about the urologist’s standard of care, the report did not qualify as a report and the trial court was not allowed to grant the extension. The Texas Supreme Court held that because the plaintiffs served a report that implicated the defendant’s conduct and the trial court granted an extension, the appellate court lacked jurisdiction to address the denial of the defendant’s motion to dismiss.

Davis v. Webb, W.L. 190054; LEXIS 478 (Tex. App.—Houston[14th Dist.] 2008)

Medical Malpractice; Expert Report: The plaintiff alleged that the defendant, an ophthalmologist, injured the plaintiff during cataract surgery. The plaintiff relied on a report authored by an optometrist to satisfy the expert report requirements. The court of appeals held that an optometrist was a health care provider under the Civil Practice and Remedies Code. However, he was licensed to practice optometry under the Occupations Code and not medicine. Even if the optometrist was qualified to render an opinion about the standard of care, he was not qualified to render opinions about causation. The court affirmed the trial court’s dismissal for failure to make a good faith effort to comply with the statutory scheme.

King v. Cirillo, 233 S.W.3d 437 (Tex. App.—Dallas 2007)

Medical Malpractice; Expert Report: In this medical malpractice case, the parties agreed to a level 3 scheduling order. The order contained expert designation and report deadlines. When the plaintiff had not produced reports under the Civil Practice and Remedies Code, Chapter 74 deadline—which was before the scheduling order deadline—the defendant moved to dismiss the plaintiff’s claims. The plaintiff’s attorney contended that the scheduling order modified the deadlines under Chapter 74, and that the motion was untimely. The trial court denied the motion. Held: The court of appeals held that the scheduling order applied only to reports required under the Rules of Civil Procedure §194 and 195, because the scheduling order lacked any language making it expressly applicable to Chapter 74 deadlines. The Court then reversed, rendered a decision dismissing the plaintiff’s claims, and remanded for a determination of the defendant’s attorneys’ fees and costs.

Mendez v. Allstate Property & Cas. Ins. Co., 231 S.W.3d 581 (Tex. App.—Dallas 2007)

Duty to Protect Insurer’s Subrogation Rights: Mr. Mendez, his wife, and son were driving a friend’s car when they were involved in a wreck. They settled their claims against the other driver and executed very broad releases individually and on behalf of their minor son. Mr. Mendez then tried to collect on the medical benefits insurance of the car that he was driving. The trial court entered summary judgment for Allstate, and Mr. Mendez appealed. Held: Affirmed. Mr. Mendez had an obligation to protect Allstate’s subrogation rights, even though no payment had yet been made. The Court held that the release was a material breach of that obligation because it destroyed Allstate’s subrogation rights. That material breach excused Allstate from paying on the medical benefits claim.

Living Centers of Texas, Inv. v. Penalver, W.L. 204502; LEXIS 68 (Tex. 2008)

Improper Jury Argument: In a case arising from the death of an elderly patient at a nursing home, the plaintiff’s counsel referred to a Nazi extermination program during closing argument. The defense counsel did not object at the time, but objected in a motion for new trial and on appeal. In a unanimous opinion, the Texas Supreme Court held that the reference to the Nazis was incurable and remanded the case for a new trial.

Daimlerchrysler Corp. v. Inman, et al., W.L. 274903; LEXIS 91 (Tex. 2008)

Class Action; Lack of Standing: This case involved an appeal from a class certification. The class action was based on an alleged defect in the Chrysler Gen-3 seatbelt that allowed it to be inadvertently unlatched when anything slightly depressed the latch-button. The class representatives had never been injured by such an inadvertent unlatching, and only one class representative believed he had experienced such an inadvertent unlatching. The Texas Supreme Court dismissed the case holding that the class representatives did not have standing to sue because they had never been injured and the only damage they alleged was the possibility that they might be injured in the future. The court found such speculative damages insufficient to grant standing.

Wright v. Ford Motor Co., 508 F.3d 263, (5th Cir. 2007)

Product Liability; Mandatory Federal Safety Standards: As three-year-old Cade Wright walked a short distance to his mother in a parked car, he was killed by a Ford Expedition that backed into him. Cade’s family sued Ford contending that the Expedition was unreasonably dangerous because it had a very large blind spot and no back-up sensing system. The trial court submitted the case to the jury on a design defect theory, and specifically instructed the jury under the Civil Practice and Remedies Code that Ford had complied with mandatory federal safety standards and was presumed to not be liable. The trial court further instructed the jury that the plaintiff could rebut the presumption by proving that the standard was inadequate. The jury found for Ford, and the plaintiff’s appealed. Held: The Fifth Circuit held that deciding whether or not the product satisfied a federal standard required the court to look at the risk and not the defect alleged. The Court determined that the federal standard addressing rearview mirrors addressed the risk and invoked the rebuttable presumption of § 82.008. The verdict was affirmed.

Ford Motor Company v. Ledesma, 242 S.W.3d 32 (Tex. 2007)

Product Liability; Jury Instruction: The plaintiff was in a wreck when his Ford F-350 malfunctioned while he was driving it. The plaintiff contended that the malfunction was caused by an improperly tightened bolt. Ford contended that the wreck was what caused the bolt to loosen. A jury heard the evidence and rendered a verdict for the plaintiff. Ford appealed complaining about the pattern jury charge definition of manufacturing defect and producing cause. Held: The Texas Supreme Court reversed and remanded, holding that the pattern jury charge was wrong. Instead, the Court held that submission of a question concerning a manufacturing defect must also include an instruction requiring the jury to find that the product deviated from its design. The Court further held that producing cause was not as stated in the pattern jury charge, but rather should be defined as “a substantial factor that brings about injury.”

Fairfield Ins. Co. v. Stephens Martin Paving, LP, W.L. 400937; LEXIS 123 (Tex. 2008)

Punitive Damages; An Insurable Risk?: An employee of Stephens Martin Paving was killed on the job. Stephens Martin subscribed to workers’ compensation insurance, which paid benefits accordingly. The family of the deceased employee filed a wrongful death claim seeking recovery of punitive damages. Fairfield Insurance Co., which insured Stephens Martin, filed a declaratory judgment action in federal court seeking a declaratory judgment that it owed no duty to defend or indemnify Stephens Martin for exemplary damage claims. The Texas Supreme Court accepted a certified question from the Fifth Circuit to determine if Texas public policy prohibited insuring against punitive damages. The Texas Supreme Court held that in this context, with a workers’ compensation policy, Texas law permitted insuring against punitive damages.