Friday Links

We couldn’t resist revisiting one of our favorite Friday topics: the courtroom, as depicted on old superhero comic book covers. Above, in Detective Comics #240 (which was published way back in 1957), Batman, the defendant, is apparently on the witness stand being questioned during a robbery or burglary trial, all the while hooked up to a polygraph machine. (Gotham must not be a Frye jurisdiction.). Also of concern is the fact that Robin appears to be up to something, and we’re not certain that the bailiff can handle a melee with a superhero, even a sidekick. (But then again, perhaps the Boy Wonder is simply leaning in to taunt Batman and suggest that even Hawkman could have beaten the lie detector.). The simplest solution may have been for Batman to take George Costanza’s sage advice:


When it comes to jury service in federal court, you’d best not mess around.

Earlier this week, our intrepid blogger Kevin Couch took on the law of Mardi Gras, going so far as to analyze the old tossed-coconut fact pattern. Walter Olson at Overlawyered links Kevin’s post and also directs our attention to some other Mardi Gras coconut posts.

If you happen to find yourself in Columbia, South Carolina this evening, and you dig live music, be certain to stop by The Elbow Room to see the South Carolina Bar Young Lawyers Division’s Justice Jam. Seven bands, each with at least one attorney member, are on the bill, all for a good cause: raising money for Sexual Trauma Services of the Midlands. For more information, see here. (By the way, if you’re not following the South Carolina Bar on Twitter, why aren’t you?)

California Magistrate Scoffs at Plaintiff’s MySpace Page, But Awards Damages Anyway

Yet another case illustrates why defense counsel, including products liability litigators, should be mindful of the ever changing landscape of social media and its potential for impeachment of Plaintiffs in litigation. That case is the recently issued Sedie v. United States, No. C-08-04417, 2010 WL 1644252 (N.D. Cal. April 21, 2010). In that case, the Plaintiff sued the federal government under the Federal Tort Claims Act after a 2006 automobile accident during which he, riding a bicycle, was struck by a postal vehicle. Both parties consented to a bench trial before U.S. Magistrate Judge Elizabeth D. LaPorte, which took place this past February. In her “Findings of Fact and Conclusions of Law Following Court Trial,” Judge LaPorte ultimately found that the Plaintiff had established the government’s liability and awarded damages in the amount of $297,624.66.

Even though the magistrate ultimately found for the Plaintiff, in reviewing some of the submitted damages evidence, the magistrate noted the contradictions between Plaintiff’s purported damages and Internet evidence uncovered by defense counsel:

Other evidence also undermines the extent of Plaintiff’s general damages. Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff’s online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident, and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible.

Id. at *23 (emphasis added; citations omitted).

Plaintiff’s attorneys continue to warn their current and potential clients of the potential adverse impact of Facebook and MySpace profiles. For the most part, these clients do not appear to be heeding that advice. That is why the diligent practitioner will always survey the Internet to determine whether a given Plaintiff has established profiles on such sites.

Partying at Mardi Gras

Obviously, we vet all posts here to an abnormal extent, seeking to bring you, our readers, content that is timely, thoughtful, and based on rigorous and bulletproof analysis. Because of this tireless dedication to the truth, we need to set the record straight on a subject of great importance to us all: Mardi Gras.

Fellow blogger Brett Burlison runs a plaintiff-oriented blog in San Francisco, and he recently authored a post entitled “Product Liability Gets More Difficult.” The post is reproduced below:

Let’s say you decide to head south and enjoy Mardi Gras. But let’s also say that you have the unfortunate distinction of being harmed by a float. Maybe the float collapses and falls on you or maybe you suffer personal injuries due to one of the vehicles in the parade.

In any event you’re injured. You would think that there would be laws that protect you and other injury victims like you in such a situation and that make sure you are adequately compensated for your injuries – made whole.

Well, not so fast – the legislature in Louisiana is considering a bill that would actually make it harder for injury victims to be compensated if they are harmed at Mardi Gras. According to media reports, a bill has been introduced by a state representative from New Orleans that would require proof of gross negligence or a deliberate act in order to hold a company that makes floats for Mardi Gras liable for damages due to injuries of death.Two years ago an individual was crushed by a float that was defective. Advocates for injury victims believe that the bill has been introduced to simply shield float manufactures from liability for future similar events.

That’s not really the case. As reported here, and as evident from the language of the bill, the limitation of liability does not extend “to any claim or cause of action against a manufacturer or lessor for damages arising from the failure in the design, manufacture, or maintenance of the trailer or float.” H.B. 902, 2010 Reg. Sess. (La. 2010). Rest assured that, were you to be injured by a float, your products liability action would be available, although I’m not sure how to define the “user” of a float.

Apparently there was some confusion as to the scope of the bill, with the bill’s sponsor merely wanting to limit the filing of frivolous lawsuits, i.e., potential plaintiffs severely injured by beads thrown from the float. But there is some question about a constituent of the bill’s sponsor benefiting from the bill. As an example of the type of lawsuits filed, see the New Orleans Metro Crime and Courts News, discussing the appeal of a case of a woman injured by a flying coconut. She claimed injuries including a cut to the forehead, a loss of interest in Mardi Gras, and “nightmares of airborne coconuts.” Apparently, in the olden days of Mardi Gras, persons riding on the float could hurl the coconuts at onlookers and be protected from ordinary negligence. Although the coconut crowd has adopted a tamer, “handing out” policy, other groups still toss “missiles” such as beads, cups, and doubloons from their floats.

On the legal side, surely this move is motivated to protect Mardi Gras from Lousiana’s system of pure comparative negligence, where any drunken reveler in any other setting may run up defense costs and potentially obtain a recovery even if he is 99 percent negligent in causing his own injury. (The coconut article notes the tens of thousands in legal fees spent solely by one group in defense of claims). Nevertheless, if you choose to attend Mardi Gras, beware of flying objects, and plan out your legal theory about how you were using a float at the time of your injury.

Abnormal Interviews: Law Professor Mary J. Davis

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the third installment, we turn to law professor Mary J. Davis of the University of Kentucky College of Law. A products liability professor, she co-authored the products liability treatise, Owen, Madden and Davis on Products Liability. The interview is as follows:

1. What do you think is the most significant new development in products liability of the last year?

I think that the whole question of preemption continues to be the most significant new development in products liability in the last two decades and every time the Court decides a question, it is a significant new development. For example, when the Court found no implied preemption in the pharmaceutical labeling case, Wyeth v. Levine, in late 2009, that was a huge development given that the Court had been forecast to be friendly to preemption in that case and it was not. And now the Court is poised to answer another preemption case, Bruesewitz v. Wyeth, involving express preemption under the National Childhood Vaccine Injury Compensation Act. Any time the Court decides a preemption case, it’s a significant new development. Other than that, I think the Consumer Products Safety Improvements Act implementation is significant if only because the changes made in 2008 by the statute reflect a substantial re-focus on regulating product safety from the federal regulatory side.

2. What rule or concept in modern products liability jurisprudence is the most outdated? How would you change it and why?

No or limited liability for successor corporations. Come on. You shouldn’t be able to sell your company to get out from under liability that can be established under applicable law at the time of the product’s sale no matter how much it might make business sense to try to avoid that liability. I would expand the product line exception so that if the company continues to sell the product, or any variant, liability will continue to apply to products sold by the predecessor.

3. Generally, how would you characterize the media coverage of products liability?

Extremely weak. I think top journalists do a good job; I have read good material in The New York Times, Wall Street Journal and Washington Post on the Toyota recall and litigation frenzy, for example. Generally, though, I think the media does not try to understand even the basic features of products liability, much less the nuances. I would like to see more time/pages devoted to explaining products liability law and the litigation system. The public needs it. I am personally often reluctant to talk to the press, however, and, when I do, the most ridiculous, out-of-context information comes through. It is difficult to use the media to give a civics lesson, but the media should be more interested in clarifying the public’s understanding of the legal system than it appears to be.

4. What advice would you give to lawyers practicing products liability in 2010. What should they be looking out for?

I have not practiced since 1991, so I should be asking your readers what advice they would give me in training lawyers who might practice products liability in 2010. I hope some of them will take me up on that. I would say, however, that lawyers who practice in federal court must understand Iqbal, the Supreme Court case that changes the face of pleading under the Federal Rules. Of course, state pleading requirements are not affected.

5. What federal or state court opinion has been the biggest surprise for you of late and why?

That’s a tough one because I just told you that I was surprised by Wyeth v. Levine, the pharmaceutical preemption case. I was also extremely surprised when the Supreme Court decided Altria Group, Inc. v. Good, which found that consumer fraud litigation against the tobacco companies was not preempted. Since the first tobacco litigation preemption case in 1992, Cipollone v. Liggett Group, the Court had gravitated toward a strict/text-based express preemption analysis advocated by Justice Scalia in dissent in Cipollone and subsequent cases, most recently Riegel v. Medtronic, Inc., a medical device preemption case. Many observers anticipated that perhaps Justice Scalia’s approach would prevail in Altria Group. It did not. The decision indicates a trend in favor of a more flexible approach to the search for congressional intent to preempt which the Court had employed before Cipollone. I suppose you can tell that I am a follower of the preemption cases. They are the single most important development in products liability since I have been involved in the field, as a litigator for 6 years and now as a professor for 19.

BONUS QUESTION: What do you believe is the most interesting depiction of a products liability lawsuit in popular culture?

I liked the movie about the whistleblower in the tobacco litigation, Jeffrey Wigand, even though I think it’s unfortunate that the only products liability movies are [those] about the allegedly unsavory actions of corporate defendants. I always thought that most products liability defendants didn’t deserve that reputation.

BIOGRAPHY: Mary J. Davis is the Stites and Harbison Professor of Law at the University of Kentucky College of Law. Her research focuses on products liability law. She joined UK Law in 1991 after six years of a litigation defense practice, predominantly in products liability, for the law firms of Womble, Carlyle, Sandridge & Rice in Winston-Salem, North Carolina and McGuire, Woods, Battle, & Boothe in Richmond, Virginia. She is co-author of the textbook Products Liability and Safety: Cases and Materials (6th ed. 2010) (including the annual case supplement and Teacher’s Manual) with Professors David Owen and John Montgomery of the University of South Carolina School of Law. She is also a co-author of a multi-volume products liability treatise, Owen, Madden and Davis on Products Liability. Professor Davis is a 1985 magna cum laude graduate of the Wake Forest University School of Law and a 1979 cum laude graduate of the University of Virginia. She is also a member of the American Law Institute since 2001 where she serves on the Members Consultative Groups for the Restatement (Third) of Torts, Products Liability, and Aggregate Litigation Projects.

More than 10 Years Later, Drug Settlement Litigation is Still Going

On November 19, 1999, American Home Products Corporation, now known as Wyeth, entered into a settlement agreement with class members of a diet drug nationwide class action, creating a settlement trust to pay claims of class members that were injured by ingesting certain diet drugs. On August 28, 2000, the Eastern District of Pennsylvania entered an order certifying and approving the nationwide settlement class. Now, more than 10 years later, there is still litigation surrounding claimants seeking benefits under this settlement agreement.

In fact, in the past two weeks, on April 6, 2010 and April 13, 2010, the Eastern District of Pennsylvania and Third Circuit, respectively, upheld the decisions by the settlement trust to deny benefits. In re Diet Drugs Products Liability Litigation, No. 99-20593, 2010 WL 1404624 (E.D. Pa. Apr. 6, 2010); In re Diet Drugs Products Liability Litigation, No. 09-2424, 2010 WL 1473752 (3d Cir. Apr. 14, 2010).

The decision by the Eastern District of Pennsylvania on April 6, 2010 involved claimant Betty Brown-Riddle. In order to seek benefits from the trust, Brown-Riddle had to submit evidence that she she suffered from “moderate aortic regurgitation,” as set forth in the Settlement Agreement. Brown-Riddle submitted a statement by her treating physician that she suffered from “mild to moderate aortic insufficiency.” Thereafter, the trust forwarded Brown-Riddle’s claim for review. The reviewing physician found that there was no reasonable medical basis for her treating physician’s finding that she suffered from moderate aortic regurgitation. As a result, the trust denied her claim and she sought review. After a series of administrative reviews pursuant to the Settlement Agreement, Brown-Riddle’s found its way into the district court for review.

The Court found that Brown-Riddle merely disagreed with the reviewing physician’s determination that she lacked a medical basis for her claim. She failed to identify or substantiate any specific errors and rested on her physician’s “check-the-box diagnoses.” The Court affirmed the decision of the trust denying benefits.

Similar to the above case, on April 13, 2010, the Third Circuit reviewed a claim of a class member that had been denied benefits. In this case, the Court affirmed the decision of the district court that the claimant did not provide adequate proof of diet drug ingestion required to support her claim because her supporting affidavits provided a dispense date when the drugs were off the market and stated dosages that were inconsistent with the dosages at which the drugs were issued. Further, addressing an argument by claimant, the Court found that the form she had to fill out in connection with her claim for benefits did not constitute a contract for benefits.

These decisions by the the Eastern District of Pennsylvania and the Third Circuit show that even when a mass class action is settled, litigation continues and our courts are continually asked to evaluate expert evidence as it would in a case of traditional posture. Plaintiffs in these types of cases are not off the hook of providing expert testimony. It will be interesting to note when litigation surrounding this class settlement ends — 10 more years, maybe 20.

Friday Links

  • Over at the Sui Generis blog, Nicole Black has a very interesting piece about a recent opinion by the New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising, which found that a “virtual office” is not a “bona fide office.” Black scoffs at the ruling and suspects that “New Jersey continues to dig its heels firmly in the 19th century, presumably requiring its attorneys to ride horses and buggies into work, while also requiring them to comply with [the bona fide office requirement.]” Yikes.
  • Robin Wheeler at the South Carolina Access to Justice Blog notes that the results of the February 2010 South Carolina bar examination will be released this afternoon. In so doing, she recounts her own experience with the bar and the harrowing experience of waiting for the results to be released. (That experience, apparently, was the proximate cause of her decision not to renew her subscription to Martha Stewart’s Living magazine. See her post for more details.).
  • There’s just a week left to enter the State Bar of Texas 140 Character Novel contest. Details are here, and the contest is open to all U.S. lawyers from any state.
  • “People make mistakes.” Conkright v. Frommert, — U.S. —-, 2010 WL 1558979 (April 21, 2010). That’s the first sentence of a U.S. Supreme Court opinion authored by Chief Justice John Roberts and released for publication on Wednesday. That opinion dealt with ERISA plan administrators. (In fact, for the record, the second sentence of the opinion, actually a sentence fragment, reads: “Even administrators of ERISA plans.”). However, we think this statement may have a more universal application and we may revisit it in the future.
  • According to Lawyerist, social media gets you on the golf course quicker.

What In The Name Of Subrogation, Equitable Indemnification and Contribution Is Going On Here?

Often, when talking to clients, a practitioner will interchangeably use words like “subrogation,” “contribution,” or “indemnification” to console a client about a loss that they are facing with a pending lawsuit or claim. However, these words are not as synonymous as some think they are. Although each term stands for the proposition of “don’t worry, we’ll get somebody else to help pay for this,” courts will carefully scrutinize whether each claim is viable in a particular situation.

Consider the recent decision in White Elec. Servs., Inc. v. Franke Food Servs., No. 09-CV-0504-CVEPJC, 2010 WL 1542575 (N.D. Okla. Apr. 15, 2010). The case arose from an underlying lawsuit brought by Sarah Austin against an electrical contractor, White Electrical Services, Inc. Austin alleged that she received an electrical shock when she attempted to plug in a food preparation table while working at McDonald’s. Id. at *1. White settled with Ms. Austin and then brought suit against Franke, the alleged manufacturer of the food preparation table. Id.

Franke was not a party to the underlying lawsuit filed by Ms. Austin. Id. White alleged that the table was defective and that the table caused Ms. Austin’s injuries. As such, White sought to recover all funds paid to Ms. Austin from Franke. White asserted multiple claims against Franke including products liability, contractual indemnity, subrogation, equitable indemnity and contribution. Id. at *2. White apparently waived its claims of product and contractual claims. The court found that since White had not used the term “subrogation” in its complaint, it did not assert a subrogation claim. Id. When dealing with the claim of equitable indemnity, the court’s analysis was quite sound. That is, the court found that the right to indemnity is based upon a legal relationship between the parties. White asserted that since Franke was strictly liable to Austin, it was entitled to indemnity. The court disagreed and stated that in a products situation, a distributor may bring a claim for indemnification against the manufacturer of a defective product based upon the manufacturer’s duty to the distributor. Id. In this case, White was not a seller of the allegedly defective table. White was not in the chain of distribution whatsoever. The court held that a products liability theory does not supply the required legal relationship between White and Franke. Id. As such, White’s claim for equitable indemnification failed as a matter of law.

Finally, the court analyzed White’s claim for contribution and found that contribution “represents a sharing of joint and several liability by providing for proportional reimbursement from other parties who are liable to the plaintiff.” Id. at *3. Since there was at least a possibility that both White and Franke could have been jointly and severally liable to Ms. Austin, the court allowed for White’s contribution claim to go forward. The moral of this case is that practitioners must exercise caution when using seemingly synonymous terms in any document filed with the court.

Minimum Contacts for Maximum Recovery

Rather than describing the due process limitation on a state’s exercise of personal jurisdiction, “minimum contacts” may more accurately describe the interpersonal relationships of some of us at Abnormal Use. While relationships and the due process limits on personal jurisdiction may both be equally obtuse, only one can support a blog post. Alas, perhaps we can make some headway with personal jurisdiction.

The Colorado Court of Appeals recently found minimum contacts supporting personal jurisdiction in Etchieson v. Central Purchasing, LLC, No. 09-CA-0218, 2010 WL 1491642 (Colo. Ct. App. Apr. 15, 2010) [PDF]. Etchieson was injured when an electric meter exploded. As happens now in our globalized society, the defective product was manufactured outside of the United States by a Chinese company (“Precision”) with “no offices, employees, or facilities in the United States.” Id. The electric meter was purchased and sold among several companies before reaching the hands of the Plaintiff. Without going through a painful recitation of the facts, perhaps it is sufficient to say that Precision purposefully sold its product in the United States, but Precision did not “aim any advertising exclusively at Colorado and no Precision personnel ever visited Colorado.” Id. The trial court found these contacts insufficient to support exercise of the long-arm statute, but the Court of Appeals reversed.

The Colorado Court of Appeals discussed specific jurisdiction and Supreme Court precedent involving foreign corporations. At the risk of oversimplifying, the court of appeals reasoned that Precision purposefully manufactured its product for the United States market, and, because of that general availing of the broader market, Precision availed itself of the Colorado market. Moreover, specific jurisdiction was reasonable because “in the context of product liability, the limits on personal jurisdiction have been relaxed as trade has . . . globalized . . . and as modern transportation and communication have eased the burden of defending oneself in a distant state . . . .” Id. Therefore, personal jurisdiction is proper.

So what? How is this Plaintiff going to effectuate any judgment that he gets against a foreign company with no domestic assets? It seems a lot of this is driven by Colorado’s apportionment of liability statute, which does not permit recovery against any one tortfeasor in excess of the jury’s finding of liability. Moreover, a jury could consider the liability of any nonparty in the proceeding in its assessment of liability.

Big Verdict in Texas Boat Propeller Strike Case

In what was reportedly the first successful case against the boating industry brought by a person injured by a motor, and in a case that could have huge implications in the industry, a Texas federal jury this month awarded a teen Plaintiff $3.8 million in damages after the his leg was severed by a boat propeller. The case, heard by federal district court Judge Sam Sparks, was actually tried thrice, as the first two trials resulted in hung juries. Brochtrup v. Mercury Marine, C/A No. 1:07-CV-00643-SS, Western District of Texas, Austin Division (April 5, 2010). We here at Abnormal Use have previously reported on a watercraft warning case here.

The Plaintiff, then 18 years old, was boating with friends on Lake Austin in the summer of 2005. He had just returned to the boat from wakeboarding when the tow rope fell in the water. When the Plaintiff jumped back in the water at the rear of the boat to retrieve the line, his friend and 18-year-old driver put the boat in reverse. The boat’s propeller caught the top of the Plaintiff’s leg and twisted it around, causing extensive blood loss and eventual loss of his leg. See local news coverage of the accident here .

The Plaintiff filed suit against the parent company of Sea Ray Boats, alleging that the boat should have been equipped with safety devices, such as guards or covers, to prevent the plaintiff from becoming entangled or stuck. However, the U.S. marine industry reportedly has fought the idea installing prop guards on motors because no design has ever been proven safe or effective for maneuvering boats. The U.S. Coast Guard has agreed, and has consistently refused to order boat and engine builders to install prop guards.

Apparently, though, this Texas jury didn’t buy it. It found both the Plaintiff and the driver (who was not named a defendant) of the boat each to be 17% negligent, and the defendant 66% negligent and responsible for the injury. Its award of damages included $200,000 for past physical pain and anguish, $200,000 for future physical pain and mental anguish, and $100,000 for disfigurement.

The decision has naturally drawn harsh criticism from the industry, which points out the common-sense factor at work here and the fact that all motors are “emblazoned” with pronounced warnings. It likens the facts on this case to the infamous McDonald’s hot coffee suit. This case, which Brunswick Corp has said it intends to appeal, may be one to watch, as it surely will have a profound effect on the boating industry.

No Jurisdiction for Seller of Milk Trailer, Texas Court Finds

Last week saw the release of a somewhat interesting personal jurisdiction case out of Texas. In that case, the seller of a milk truck was found not to have minimum contacts with the State of Texas, and thus, the district court did not have personal jurisdiction over it in the Plaintiff’s products liability action. See Mateer v. Cabool Lease, Inc., No. 2-09-297-CV, 2010 WL 1509691 (
Tex. App. – Fort Worth, April 15, 2010, no pet. h.) (not designated for publication).

The Plaintiff, a milk truck driver, suffered a severe hand injury after a 2006 valve accident while he was pumping milk into his trailer. Following his injury, he sued several entities, including Cabool Lease, Inc. (“Cabool“), the company that had sold the trailer at issue to Plaintiff’s employer, on the grounds that the trailer was defective. In response to the suit, Cabool filed a special appearance under Rule 120a of the Texas Rules of Civil Procedure in order to assert a personal jurisdiction challenge. The trial court sustained Cabool’s special appearance and the Fort Worth Court of Appeals, in an unpublished opinion authored by Justice Sue Walker, affirmed the trial court’s ruling and denied the Plaintiff’s interlocutory appeal.

The basic facts were not in dispute. In 1998, Plaintiff’s employer purchased the trailer at issue from Cabool, based in, of all places, Cabool, Missouri. The court noted that Cabool was a Missouri corporation with its principal place of business in Missouri. It did no business in Texas:

[Cabool] is not a corporate entity formed under the laws of Texas, and it does not maintain a registered agent for service in Texas. [Cabool] has no employees in Texas and does not regularly recruit Texas residents to work for [Cabool]; it does not maintain a place of business in Texas and does not have any offices or other facilities in Texas; it does not own any real or personal property in Texas; it does not maintain any bank accounts or post office boxes in Texas; it does not pay any taxes to any local or state taxing authorities in Texas; it does not market or ship any products to individuals or corporations in Texas; it does not operate a website in order to promote its business; it does not have a telephone number in Texas; it does not send sales or marketing brochures to people or corporations in Texas; it does not have company meetings in Texas; it does not purposefully advertise in or direct marketing efforts to Texas with an intent to solicit business from Texas; it does not advertise in any Texas newspapers; it has never before been involved in a lawsuit in Texas; and it has never had an occasion outside of this lawsuit to call anyone in Texas or receive phone calls from Texas.

Good jurisdictional facts for a defendant, those. Nevertheless, the Plaintiff argued that “ninety percent of [Cabool’s] business ha[d] consisted of leasing and financing equipment such as milk trucks and milk trailers to entities affiliated with [Cabool], such as [Plaintiff’s employer],” which, although also a foreign corporation, had significant Texas contacts. Further, Plaintiff pointed to evidence of a significant link between Cabool and his employer. For a number of years, Cabool leased to Plaintiff’s employer trucks and trailers for use in its facilities, including those in Texas, and Cabool continued to lease trailers to Plaintiff’s employer (who made up approximately 90 percent of Cabool’s customer base). Plaintiff also noted that Cabool’s president was also the president of Plaintiff’s employer, suggesting the closeness of the companies.

However, the appellate court found that “the trial court’s implied finding that [Cabool] had no contacts with Texas is supported by the special appearance evidence.” Although Plaintiff’s employer may have had contacts with Texas, it remained a third party, and the acts of a third party could not be attributed to Cabool, despite the fact that the two companies were closely associated. (The court specifically noted that there was no issue of piercing the corporate veil, and thus, Plaintiff’s employer’s contacts with Texas were not relevant to those of Cabool.). Accordingly, Plaintiff was left with no evidence of any contacts that Cabool had with Texas, ending the inquiry.