Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The Texas Supreme Court issued four new decisions and one substituted opinion with today's regular orders.

In General Electric Co. v. Moritz (No. 0871), the Court reaffirmed that a landowner owes an independent contractor’s employees no duty to warn of obvious hazards they already know about, rejecting the plaintiff's argument that his knowledge of the hazard was simply a factor for the jury to consider in assessing comparative negligence.  Justice Green (joined by Chief Justice Jefferson and Justice Johnson) dissented.

In Frymire Engineering Co. v. Jomar International, Ltd. (No. 06-0755), the Court held that the subrogation doctrine applies to a subcontractor seeking to recover contractual payments from alleged third-party tortfeasors, provided the doctrine's traditional requirements are satisfied. 

In Leland v. Brandal (No. 06-1028), a health-care liability case, the Court determined that a plaintiff may receive a 30-day extension to cure a deficient expert report after a ruling that the report is adequate has been reversed on appeal.  Justice Brister dissented. 

In Kao Holdings, L.P. v. Young (No. 07-0197) (per curiam), a restricted appeal, the Court reversed a default judgment granted against an individual who was not named as party to the suit, modified the judgment, and affirmed as modified.

In Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc. (No. 03-0647), the Court denied the motions for rehearing, withdrew its February 15, 2008 opinion and judgment (which were themselves issued on rehearing), and issued a substitute opinion reaching mostly the same result.  Rather than render a complete judgment, however, the Court remanded the case to the trial court for further proceedings on some of the insured's claims for attorney's fees and its prejudgment interest claim.

• Print
• Comments
• Trackbacks

In Merck & Co. v. Ernst (No. 14-06-00835-CV), the Fourteenth Court of Appeals has reversed Mark Lanier's $26.1 million judgment in a highly publicized Vioxx case and has rendered judgment that the plaintiff take nothing.  (The jury verdict included a $229 million award for punitive damages, which trial court reduced in accordance with statutory caps.)  The concluding paragraphs state:

The epidemiological evidence supports the conclusion that Vioxx use at a certain dose and duration is associated with an increased risk of thrombotic cardiovascular events.  The expert's speculation that a clot could have existed, but could have dissolved, been dislodged, or fragmented gives rise to nothing more than conjecture.  Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infarction triggered by a blood clot.  Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband's death.  Merck's first issue is sustained.

The judgment of the trial court is reversed and judgment is rendered that appellee take nothing.

Merck has aggressively defended these cases, rather than settle them.  Looks like that strategy will continue paying off.

Clarification:  My comment above is somewhat unclear, perhaps because I had a limited amount of time to write this post.  I accurately described Merck's litigation approach to the Ernst case and others—before it entered into a $4.85 billion global settlement late last year.  That may not seem aggressive, but some are speculating that Merck will save as much as $10 billion by resolving the cases this way.

5/30/08 Update:  Texas Lawyer has more detailed coverage, including Mark Lanier's reaction, here.  Also, I neglected to mention that my former firm defended the Ernst case and handled the appeal.  I was not involved at either level.

• Print
• Comments
• Trackbacks

In Baize v. Scott & White Clinic, a health care liability case, the Third Court of Appeals has affirmed a no-evidence summary judgment based on the plaintiffs' failure to timely designate expert witnesses.  Although the trial court erred by granting a motion to withdraw as counsel that failed to state the expert designation deadline, the court of appeals held the error harmless because the plaintiffs had sufficient time to secure new counsel and for the new counsel to investigate the case and prepare for trial.

• Print
• Comments
• Trackbacks