Texas Court Catches Case of Ebola Litigation

In a previous post, we discussed the lawsuit filed by Kaci Hickox to challenge the quarantine imposed upon her following her return from a stint in Africa during which she treated Ebola patients.  Another Ebola-related lawsuit has now been filed.  Nina Pham, the nurse who contracted Ebola in a Texas hospital, filed a complaint in the district dourt of Dallas County, Texas against Texas Health Resources, Inc. (THR) the hospital system for which she worked at the time she contracted Ebola.

Ebola Post

The complaint, which can be viewed here, alleges that the hospital had no plan to deal with Ebola and that the protocols in place were not adequate to protect employees against the virus despite the hospital’s advance knowledge that it should be prepared to deal with Ebola.  The thirty-six page, artfully written complaint is actually an interesting read, and it contains a number of shocking allegations.  It even has pictures!  abcNEWS outlined some of the more surprising allegations in the lawsuit here.  Some of the more interesting claims deal with the hospital allegedly violating HIPAA by releasing video footage of Nina Pham and disclosing details of her treatment without her consent.

Pham is represented by Charla Aldous and Brent Walker of the Aldous Law Firm in Dallas, Texas.  According to the docket, THR has not yet filed an answer, nor have any attorneys entered an appearance on its behalf.  According to this American Lawyer article, the hospital should have no shortage of Ebola litigation teams to select.

Trolls Gonna Troll? Win A $533 Million Patent Suit . . . Rinse Repeat.

Smartflash is what some in the tech industry might call a patent troll. It licenses patents but doesn’t actually create products.  Last month, Smartflash obtained a $533 million dollar verdict in a patent case against computer giant Apple.  Now, the company has filed another suit against Apple over the same disputed patents that were at issue in the first case.

In the original lawsuit, Smartflash accused Apple of infringing upon a number of patents relating to the access and storage of data, digital rights management (DRM), and payment systems.  The company claimed that these patents were used in a number of devices, including the iPhone and iPad. As noted above, in February, a Texas jury award Smartflash a $533 million verdict against Apple for that alleged infringement.

Apparently, Smartflash is not satisfied with $533 million verdict.  The day after that obtaining verdict, it filed another suit against Apple over these same patents.  They claim that the iPhone 6 and several other Apple products that infringe on their patents were not covered by the first lawsuit because they came to market after the first suit was too far along.  Now they want to be further compensated.

While these cases are interesting, it may all be for naught. As Bloomberg has reported, Apple has already been successful in getting similar verdicts from this particular district overturned. We’ll see what happens.

Colorado Inmate Stands Up For Dez Bryant, Cowboys Fans Everywhere (For Only $89 Billion)

It is the week of the Super Bowl, the biggest sporting event of the year, and we here at Abnormal Use are having trouble getting excited. It has nothing to do with our beloved Carolina Panthers bowing down to the Seahawks earlier in these playoffs. No, our excitement is subdued because this is the first Super Bowl in our memory involving two teams that arguably shouldn’t be there. The Patriots are marred by “Deflategate” paranoia. The Seahawks are technically scandal-free, but everyone knows the NFC champ would have been the Dallas Cowboys but for the overturn of Dez Bryant’s crucial fourth quarter catch against the Packers. The NFL won’t do anything to stop the injustice.  Fortunately, Colorado inmate, Terry Hendrix, is not so constrained and has filed a lawsuit against the NFL, Commissioner Roger Goodell, and referee Gene Steratore seeking $88,987,654,321.88 over the abysmal call that kept the Cowboys out of the big game.

According to the complaint filed in the U.S. District Court for the Northern District of Texas, Hendrix, who apparently serves as counsel for “Dez Bryant, all Dallas Cowboys fans and all people in or from the sovereign republic of Texas,” is suing the defendants for negligence, breach of fiduciary duty, and “wreckless disregard.” He alleges that the video reversal of Bryant’s catch was “fraud, theft, and gross stupidity.” As a result, Hendrix claims that victory was clearly stolen from the plaintiffs because “the Cowboys’ offensive line would have perfectly created an ‘Autobahn’ for DeMarco Murray to drive into the endzone for the score and victory.”  Obviously.

The Super Bowl is big business. The least the NFL can do is make sure the right teams make it to the big game.  Like Hendrix said, the Cowboys obviously would have won but for the blown call (despite how they played the other 59 minutes).  And, they obviously would have gone on the road to beat Seattle where the Packers couldn’t win even when Russell Wilson throws four interceptions.  Just cancel the Super Bowl already and give the Cowboys the trophy.

Credit Hendrix for standing up for Bryant, the Cowboys, and the great state of Texas and trying to honor the integrity of the game.  We are certain when he recovers $89 billion from the NFL, Hendrix will share it with them evenly.

Chick-Fil-A And The Case of the Heart Attack Causing Cherry

With a fact pattern straight from a torts textbook, a Texas woman has sued Chick-Fil-A and its cherry supplier, Dell’s Maraschino Cherries Co., Inc. after the cherry on her milkshake allegedly caused her to have a heart attack.  According to a report from the New York Daily News, Cyndi Scruggs purchased a milkshake topped with whip cream and a maraschino cherry from a Chick-Fil-A restaurant in Plano, Texas.  She bit into the cherry and discovered that it allegedly “had not been properly de-pitted.”  The improperly de-pitted cherry caused her to fracture two teeth below the gum line.  To make matters worse, Scruggs developed a gum infection and sepsis which allegedly caused her heart attack.  She is seeking between $200,000 and $1 million in damages.

This is case is certainly a test in foreseeability and proximate causation.  Assuming that Scruggs did bite into a faulty cherry and that her damages allegations are valid, it seems very tenuous on the surface that a cherry could lead to a heart attack.  Nonetheless, if Scruggs can prove an unbroken chain between the cherry and the attack then she may be able to recover, as crazy as it may be.

Damages aside, we here at Abnormal Use have to question why anyone would eat the milkshake cherry in the first place.  We always thought the cherry was more visually appealing than edible. In our opinion, cherries are a Jolly Rancher flavored and should never actually be consumed.  Of course, there is no prohibition on the consumption of such things.  But shouldn’t we assume the risk of injury for biting into something that has no valid purpose on the milkshake in the first place?

Texas Follows Pennsylvania’s Lead And Rejects “Any Exposure” Theory In Mesothelioma Case

Science

In asbestos injury cases, plaintiffs typically advance the theory that any exposure, no matter how slight, is a substantial contributing factor in causing the plaintiff’s asbestos-related disease. This is known as the “any exposure” or “each and every exposure” theory. If this argument is successful, it allows the Plaintiff to pursue numerous defendants simultaneously without having to quantify the amount of asbestos to which an individual defendant’s product caused him to be exposed. Not too long ago, the Texas Supreme Court has joined the list of Courts which have rejected the theory.

The Texas Supreme Court previously held that the theory was insufficient to establish causation in asbestosis cases. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). In response to attempts by plaintiffs to distinguish the holding to avoid its application in mesothelioma cases, the Texas high court has recently held that the theory is insufficient to show specific causation in mesothelioma cases. Bostic v. Georgia-Pac. Corp., 10-0775 (Tex. July 11, 2014) (holding that “even in mesothelioma cases proof of some exposure or any exposure alone will not suffice to establish causation.”) (quotations omitted). In Bostic, the appeal followed a jury verdict of $11.6 million with an allocation of 75 percent of the fault to a joint compound manufacturer. Id. In affirming the ruling of the Court of Appeals, which reversed and rendered a defense verdict, the Texas Supreme Court found that the Plaintiff had not sufficiently established specific causation with respect to the joint compound manufacturer where the Plaintiff: (1) relied on experts who testified that any exposure to asbestos should be considered a cause of his mesothelioma; (2) failed to quantify the aggregate dose, (3) failed to quantify the dose attributable to the joint compound manufacturer, and (4) failed to show that the dose fairly assignable to the joint compound manufacturer “more than doubled [the plaintiff’s] chances of contracting mesothelioma.” Id. at *19 (“And even in a single-exposure case, we think that proof of dose would be required . . . ‘One of toxicology’s central tenets is that the dose makes the poison.’”).

The Bostic court joins the growing number of state courts which have struck down the each and every exposure theory. See, e.g., Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 (Pa. 2012) (holding that the theory was inadmissible after finding that “Dr. Maddox’ any-exposure opinion is in irreconcilable conflict with itself”); Free v. Ametek, No. 07-2-04091-9 SEA (Wash. Super. Ct. King County Feb. 29, 2009) (applying the Frye standard and holding that the theory “is not a scientifically proved proposition that is generally accepted in the field of epidemiology, pulmonary pathology, or any other field relevant to this case.”); Butler v. Union Carbide Corp., 712 S.E.2d 537, 549 (Ga. Ct. App. 2011) (affirming the lower court’s ruling that the theory did not “properly utilize[] the scientific method to make scientifically valid decisions in reaching his specific causation opinions as required by Daubert.”).

The GM Ignition Switch Defect and The Texas Manslaughter Charge

the fugitive

By the time this blog post goes live, GM will probably have made public the results of its internal investigation regarding how it responded to an ignition switch defect.  Part of the inquiry involves delving into why GM apparently waited more than ten years to recall 2.6 million small cars with faulty ignition switches linked to at least 13 deaths. Reportedly, a Texas woman, Candice Anderson, was recently informed that a GM ignition defect was responsible for her fiance’s 2004 death, in connection with which she pled guilty to manslaughter.  Apparently, she was driving a Saturn vehicle and her fiance had the misfortune of being the passenger.  The car left the roadway without leaving any skid marks or other signs of causation.  Anderson survived.  Her fiance perished. Anderson happened to have trace amounts of anti-anxiety medication in her system.  Anderson was charged with manslaughter, but pled guilty to negligent homicide. Anderson reportedly wants an apology from GM.  Unless the statute of limitations has expired, we have a feeling that Anderson may be destined for more than an apology.

Life in the Fast Lane, Everything, Zero Time (The Affluenza Defense)

The Eagles’ hit, “Life in the Fast Lane,” depicts a life of excess involving drugs, booze, and generally “everything, all the time.”  What the song does not address is the consequences of one’s actions if his or her life in the fast lane comes in contact with innocent pedestrians and ends in death or serious injury.  A recent Texas case suggests that the outcome depends on how wealthy your parents may be.

You may recall the 2013 criminal trial of Ethan Couch, the affluent teen who killed four people and catastrophically injured another while driving drunk (his blood alcohol was reportedly three times the legal limit).  At the criminal trial, Couch’s defense counsel retained an expert witness who testified, in part, that Couch was the victim of “affluenza,” an ailment characterized by being the product of wealthy and privileged parents who never set limits for Couch.  Couch’s counsel disputes that it relied on an affluenza defense, but regardless, Couch was not required to serve any time in prison for his crimes. As you might imagine, there was a media frenzy at the time about the nature of that defense.

At least one civil suit has been filed in connection with the accident.  A teen riding in the back of Couch’s truck at the time of the accident suffered a debilitating, permanent brain injury, and he has apparently incurred at least one million in medical bills.  He filed suit against Couch’s parents.  Couch’s father’s business was also joined in the lawsuit, as Couch was driving a vehicle owned by the business at the time of the accident.  The suit has reportedly settled for over $2 million.

Though tempted, we at here at Abnormal Use decline the opportunity to weigh in more formally on the criminal or civil outcome, except to say that there is something very curious about this affluenza theory.  In Couch’s criminal case, there were few consequences for his crimes, but his defense rested on his parent’s wealth. In the subsequent civil litigation, his parents (and/or their insurance carrier) paid a handsome sum.

Perhaps the expert’s affluenza opinion was a bit of foreshadowing more than anything else?

Six Flags Celebrates Ride Re-Opening, Faces New Suit

Back in July, a Texas woman died after being thrown from the 14-story tall “Texas Giant” roller coaster at Six Flags Over Texas. Initial statements did not specify the cause of the woman’s death; however, others on the ride speculated her death was attributed to a safety bar:

[The woman] goes up like this. Then when it drops to come down, that’s when it (the safety bar) released and she just tumbled. . . . They didn’t secure her right. One of the employees from the park — one of the ladies — she asked her to click her more than once, and they were like, `As long you heard it click, you’re OK.’ Everybody else is like, `Click, click, click.’ Hers only clicked once. Hers was the only one that went down once, and she didn’t feel safe, but they let her still get on the ride.

Regardless of the cause, Six Flags closed down the coaster until last weekend while it investigated.

Since the re-opening, the woman’s estate filed a wrongful death lawsuit against the amusement park in Texas state court. In the suit papers, the estate alleges that post-accident inspections revealed that various parts of the ride’s security systems were experiencing “inconsistencies and intermittent failures.” After the woman’s death, Six Flags allegedly had to replace a defective “limit switch” which shows the lap bar is in place. The estate seeks at least $1 million in damages.

Six Flags has apparently never revealed the findings of any internal investigation. The ride is now equipped with new seat belts and redesigned restraint bar pads (implicating subsequent remedial measures concerns, naturally).

Oddly, Six Flags is now also providing a sample seat at the entrance of the ride for people to judge for themselves whether they fit safely. We here at Abnormal Use will withhold any opinions on whether Six Flags should bear any responsibility for the woman’s death. We will say for any future accidents, however, that we would hate to resort to the “plaintiff had the opportunity to try the seat out ahead of time” defense. Hopefully, Six Flags is making this move to ease the fear of future riders. We can only hope.

Texas Woman Adds New Twist to Classic Banana Peel Case

In every 1L Torts class, new law students encounter cases involving plaintiffs who slipped on banana peels. Each case assesses the liability of premises owners based on a variety of factors, such as the condition or location of the peel. But just how many rogue banana peels are out there, anyway? Maybe it is time for casebooks to start updating their material.

They can start with the case of the woman suing a steakhouse chain after slipping on a peanut.

According to a report out of the El Paso Times, a Texas woman is seeking $1 million from Texas Roadhouse after slipping on a peanut shell thrown on the floor by a patron. The restaurant passes out peanuts to patrons and permits the shells to be discarded on the floor. The woman claims that Texas Roadhouse is responsible for the shells and should have either warned her of their presence or removed them.

Aside from the peel/shell distinction, this case is remarkably different than those read in law school. For starters, unlike the banana peel cases, this case doesn’t involve a single item mistakenly left on the floor. For anyone who has ever dined at these “Texas-style” steakhouses, peanut shells are scattered throughout the floor. Their condition is open and obvious.

More importantly, this case involves an object known by the landowner to be on the floor. Questions involving the condition of the shell or how long it has been left on the floor are moot. Instead of debating such minutiae, the inquiry can shift to whether the shells constituted a hazard and whether the plaintiff should have been aware of their presence.

These are, of course, questions that we actually encounter from time to time in our practice.

Facebook, Subpoenas, and Brady v. Maryland in Texas

You know how we here at Abnormal Use adore court opinions and social media.  Accordingly, we couldn’t resist sharing this very recent Texas state court appellate opinion, arising from a forgery conviction, in which the issues at hand were Brady v. Maryland and Facebook.

The opinion in question is Futch v. State, No. 10-11-00283-CR (Tex. App. – Waco July 18, 2013, no pet. h.) [PDF].

Apparently, just before opening statements, the following lenghthy exchange took place (as set forth in the opinion):

[Defense Counsel]: Yes. Judge, a few minutes ago [Prosecutor] made a Brady type disclosure to me. I don’t want to run the risk of misstating what he told me.

If you’ll tell the judge.

[Prosecutor]: I’ll do it. Judge, there was one witness that was on our subpoena list. Her name is Sarah Parrish. She drifts. She’s very difficult to find. She’s not stable. The subpoena on her actually was never served. It went to Coryell County with her last known address, and they told us—they sent it back, “Unable to serve subpoena.” She showed up today. Her remark to me was much like it was to the officers the night of this – when the defendant was arrested, that he had permission from the check holder. She, technically, was never served by subpoena. I saw her at lunch and I talked with her at lunch, and she said, “Are you going to need me right now?” I said, “no,” and she said, “Could I go get lunch and then come right back or be back by 1:30?” I said, “sure,” because I don’t really have any desire to call her to the stand. As soon as I saw [Defense Counsel] after that, I let him know what she had said, and that’s the gist of it. I mean, quite honestly, I find her completely untruthful, and I don’t see any need to call her. That’s why – in the interest of fairness and disclosure, I wanted to give him everything we had on that. Today is the first chance I’ve ever had to talk to her, at lunch.

THE COURT: She never actually got served with the subpoena?

[Prosecutor]: No. She just showed up today, because the way the officer –the only way the officer – she has no phone number, she has no permanent address that we can find her at, and either one of the deputies or investigators from Coryell County or another police officer – I’m not sure –sent her a Facebook message. That’s what her mom said was the only way to get in touch with her was to send her a Facebook message and wait. They didn’t know if they would have her here in time or not. That’s what they were told. They sent her a Facebook message, and she told me she got it, I guess, this morning, and she showed up.

THE COURT: Modern culture, nothing like it.

[Defense Counsel]: Judge, for the record, I’ve been looking for her, myself, for two months. I turned every rock I could, including using the Facebook …. We have not had any response at all. Now, this is a very crucial element of the offense, of course. We don’t have the witness. We don’t have any means to get her.

[Prosecutor]: She said – the best I can say is she said she’d be back at our office at 1:30, and we were over here before 1:30, and I said I’d come back for her if we needed her.

THE COURT: [Defense Counsel], did the defense issue a subpoena for her also?

[Defense Counsel]: No. I didn’t know where to issue it, Judge. I didn’t know where to send it.

THE COURT: So what is it you’re suggesting that I do about it?

[Defense Counsel]: Well, I want to get this crucial piece of evidence before the jury. I mean, it’s a crucial part of their case. I don’t want to break any rules of decorum or anything like that, Judge, but I want to get some guidance from the Court about how to do it.

THE COURT: Well, my suggestion is to find the witness.

[Defense Counsel]: I don’t know where to look.

THE COURT: I don’t either.

[Prosecutor]: I mean, she may be back at our office. Like I said, we left at 1:15.

[Defense Counsel]: Well, you know, I can’t get in the DA’s office without an escort, Judge.

THE COURT: Find out if she’s back in you-all’s office. If she is, serve her with the subpoena.

[Prosecutor]: Okay.

[Prosecutor # 2]: We don’t have a subpoena for her anymore. Right?

[Prosecutor]: It came back not returned. I don’t have another one to hand her now. It has come back unable to locate.

THE COURT: Where is the original subpoena?

[Prosecutor]: To be honest, I don’t know. I handed it to my investigator. It was sent to Coryell County.

[Prosecutor # 2]: It was sent to Coryell County, and they sent the return back.

THE COURT: Well, if she’s over there and she comes to your office, have her brought over here. Escort her with an officer, if you have to, and I’ll talk with her.

[Prosecutor # 2]: Okay.

[Prosecutor]: Do you want me to go look right now before we get going?

THE COURT: You can call. I want to get the jury in here.

[Prosecutor]: Okay.

On appeal, Futch contended “that the State’s suppression of evidence favorable to his defense violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution or Article 1, Section 19 of the Texas Constitution” and that the State withheld oral testimony in violation of [Brady] by dismissing a witness who had voluntarily come to court to testify for the State. However, the court of appeals found that Futch did not preserve the issue for review.  Specifically, the court held that Futch’s attorney’s generalized reference to a “Brady type disclosure” and failure to object or otherwise move for a continuance waived the complaint. Now, as a civil litigation blog, we are more interested in the social media component of this case than the criminal procedure angles. However, we all must serve subpoenas, and we all face encountered difficult to locate witnesses whose online presence may be the only evidence of their whereabouts. Accordingly, FYI.