The Dallas Court of Appeals recently held that a jury verdict of 11-1 on negligence bars recovery of exemplary damages based on gross negligence. In this case, the jury returned a verdict against the defendant for negligence by a vote of 11 to 1. Ignoring the predicate instruction to only answer the gross negligence question on an
Federal Appellate Jurisdiction Over Magistrate Orders
A federal court of appeals does not have jurisdiction over an appeal from a magistrate judge’s order of dismissal unless the parties have clearly and unambiguously consented to proceed before the magistrate judge.
In Barber v. Shinseki, the plaintiff brought a healthcare liability claim. After the plaintiff’s counsel withdrew, he asked the district court to appoint
Laser Hair Removal is not a Health Care Liability Claim
The Dallas Court of Appeals recently joined with the Fort Worth Court of Appeals and theCorpus Christi Court of Appeals in holding that a claim arising from a laser hair removal procedure is not a Health Care Liability Claim subject to Chapter 74 of the Civil Practice and Remedies Code. Two other appellate courts–the
“Arising out of” = “Resulting from”
My insurance coverage friends will appreciate this one: The Texas Supreme Court has held that there is "no significant distinction" between an automobile insurance policy that provide coverage for bodily injury "arising out of" ownership, maintenance or use of a covered auto and a policy that provides coverage for bodily injury "resulting from" ownership, maintenance
41.0105 Debate Resolved — Hooray!
In prior posts, Byron Henry and I have opined on a split among the intermediate courts of appeals regarding whether 41.0105 of the Texas Civil Practice and Remedies Code abrogates the collateral source rule and whether evidence of medically expenses initially incurred but ultimately written off should be excluded from evidence at trial or applied post-verdict by the trial court. The Texas Supreme Court resolved both issues today in an opinion affirming the Tyler court of appeals’ judgment in Haygood v. Garza.
The main take-away is that amounts written-off by providers must be excluded from evidence at trial. In other words, the jury should only see evidence of medical expenses actually and ultimately charged to the claimant, not bills showing initial charges before required write-offs. The majority opinion may be found here. Justice Lehrmann’s dissent, in which Justice Medina joined, may be found here.
Additional take-aways you need to know before your next trial, however, are below:Continue Reading 41.0105 Debate Resolved — Hooray!
Experts in Class Actions Subject to Daubert
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
Wrongful Termination of Employee for Voting
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
Cracking the “Health Care Liability” Nut
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
Attorney as witness does not compel disqualification
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
The Fundamentals: Make A Record for Appeal
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