A lot has already been written about the Wal-Mart Stores, Inc. v. Dukes opinion decided this week, but there’s one little ditty that class action practitioners will want to take note of.

As part of their motion for class certification, the Plaintiffs used an expert who conducted a social framework analysis of the culture and personnel practices at the company and who concluded that the company was vulnerable to gender discrimination.  The Supreme Court’s majority opinion refers to the expert’s testimony as the only evidence of a general policy of discrimination.  The Court then notes that the parties dispute whether the expert’s testimony met the standards for admission under Federal Rule of Civil Procedure 702 and Daubert and recites that the district court had concluded that Daubert does not apply to expert testimony at the certification stage of class action proceedings.  Here, the Supreme Court says, "We doubt that is so…"  The Court then goes on to conclude that the expert’s testimony did not reach the level of showing a general policy of discrimination.  The lesson to take from this is that, even though the statement is arguably dicta, it’s a pretty good indicator of the Supreme Court’s feelings that Daubert’s standards apply to experts at the class certification stage.

Of course the headline-grabbing holding from the high court is that the Plaintiffs presented no convincing proof of a company-wide discriminatory pay and promotion policy such that there was no common question for purposes of class certification.  The Court’s opinion may be found here.

Everybody knows that your employer has to give you time to go vote, right?  What if your employer doesn’t give you the time to vote, and you take it anyway and are fired because of it?  Is there a private cause of action for wrongful termination?  According to the Dallas Court of Appeals, the answer is "no."

Continue Reading Wrongful Termination of Employee for Voting

The Appellate Law Section of the Dallas Bar Association has it’s monthly CLE luncheon scheduled for Thursday, June 16th, at noon.  The speakers will be Rob Gilbreath and Kendall Gray.  The unique subject of their presentation is titled "Don’t be Ugly: Basic Typography and Document Design for the Legal Writer."   This presentation will be held at the Belo Mansion.

The Texas Legislature may have defined what constitutes a Health Care Liability claim, but as is so often true, facts and circumstances are not always as cut-and-dried as a black-letter definition.  The Austin Court of Appeals grappled with this sticky issue in Drewery v. Adventist Health System/Texas Inc.  In this case, Planitiff Drewery brought suit for an assault and intentional infliction of emotional distress stemming from actions of the defendants that occurred while he was under general anesthesia.  Drewery was employed by Adventist Health System/Texas, Inc.  He was admitted as a patient for a tonsillectomy and two co-workers were assigned to assist with the surgery.  When Drewery awoke from the anesthesia, he discovered that his co-workers had painted his fingernails and toenails with pink nail polish, had written on the bottom of his feet, and had wrapped his thumb with tape.  He alleged that their intentional actions subsequently caused a hostile work environment and severe emotional distress.  The trial court concluded that Drewery’s claims were Health Care Liability claims and dismissed because he filed no expert reports.

On appeal, a majority of the panel held that the claims were not Health Care Liability Claims.  The majority considered the factors set out in the Texas Supreme Court’s opinion in Diversicare General Partner, Inc. v. Rubio.  Noting that Drewery had not pleaded damages based upon any physical injury, that the claims were for intentional acts as opposed to negligent acts, and that expert testimony was not required to address the standard of care, the majority held that Drewery was not required to furnish an expert report.  The majority’s opinion may be found here.

Justice Melissa Goodwin dissented on the ground that the majority had examined Drewery’s pleaded claims as they were presented in an amended petition.  Justice Goodwin argued that Drewery’s original petition more closely asserted claims that would be defined as "Health Care Liability Claims" and that Drewery could not avoid the expert report filing requirement by amending his petition after the time expired for filing such reports.  The dissenting opinion may be found here.

The San Antonio Court of Appeals reaffirmed that the fact that an attorney for one of the parties may also be a witness does not require disqualification under Rule 3.08 of the Disciplinary Rules of Professional Conduct.  In this case, counsel for the relator was a potential witness with knowledge of some arguably relevant facts.  The Real Party in Interest filed a motion to disqualify Relator’s counsel pursuant to Rule 3.08, which the trial court granted.  Relator filed a petition for writ of mandamus seeking to vacate the trial court’s order.  In an opinion by Chief Justice Catherine Stone (left), the court of appeals held that "[t]he fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification."    The court reiterated that (1) the lawyer’s testimony must be necessary to establish an "essential fact" on the client’s behalf, and (2) the opposing party must demonstrate it would suffer actual prejudice as a result of the lawyer’s dual roles as advocate and witness.  Because neither was shown in this case, the court granted relator’s petition for writ of mandamus.  The court’s opinion in In re Tipps can be found here.

Got a couple of good Appellate CLE opportunities coming up:

The opinion in Gonzalez v. Wells Fargo Bank, NA, reminds me of the philosophical riddle asking whether a tree that falls in the forest when nobody is there to hear it makes a sound.

In this appeal of a forcible detainer action, the appellant argued that Wells Fargo Bank had not controverted any of his evidence showing that he had a superior right to immediate possession of the property in dispute.  The Dallas Court of Appeals construed the appellant’s complaint as a challenge to the sufficiency of the evidence to support the trial court’s judgment.  The problem?  There was no reporter’s record.  The court reporter advised the court of appeals that there was no hearing on the record.  The court of appeals concludes that without a reporter’s record to show what the evidence was (or wasn’t) there’s nothing for the court to review.  This opinion underscores how essential it is to have a court reporter’s record if you want to complain about the evidence or a ruling of the trial court.  Even when there’s a reporter’s record, the reporter’s record should show the matter complained of.  Without a record at all, an appellant cannot possibly make the showing necessary to prevail.  The court’s opinion may be found here. 

The Texas Supreme Court has revisited statutory standard for determining when a parent is unemployed or underemployed for purposes of determining child support obligations.

Section 154.066 of the Texas Family Code provides that "[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor."  Most courts of appeals have required proof that the obligor was intentionally unemployed or underemployed for the purpose of avoiding child support.  This requirement appeared to have dealt with the spouse who was unemployed or underemployed for reasons quite independent from child support obligations.  This test has been discarded.

The Supreme Court observed that the phrase "for the purpose of avoiding child support" does not appear in the statutory language at all.  There is no intent element.  Therefore,  the court held, "there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment."  But never fear, the Court goes on to note that the statute includes the word "may" in it, which affords discretion in the trial court within the limits of the circumstances of the case to consider whether the obligor is attempting to avoid child support by becoming or remaining unemployed or underemployed.  The court offers up some shifting burdens of proof in this regard, while pointing out that the discretion afforded requires examination of laudable reasons for intentional unemployment or underemployment such as spending time with the children, living closer to the children, or providing the children with better health benefits.  Further, the Court points out that there must be a "significant" difference resulting from the underemployment or unemployment before the guidelines are triggered.  Thus, it appears that unemployment or underemployment will not automatically trigger application of the child support guidelines.  The Court’s opinion in Iliff v. Iliff may be found here.

There’s been a spate of recent opinions involving enforcements of settlement agreements.  Byron reported on a couple of opinions earlier this week.  Today I report on Green v. Midland Mortgage Co. decided by the Fourteenth Court of Appeals in Houston.  There are four points in this opinion worthy of note:

  • First, in an action to enforce a settlement agreement, you’ve got to have pleadings and proof.  [That seems obvious enough]
  • Second, the court holds that parties can create an enforceable settlement agreement via e-mail exchanges [One of the many advances of modern technology]
  • Third, a motion for summary judgment can be presented orally or by written submission, but if it is presented orally, no oral testimony may be adduced
  • Finally, there is a difference between an agreed judgment or consent judgment and a settlement agreement.  A court cannot render an agreed judgment absent consent at the time it is rendered.

The court’s opinion may be found here.