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January 2011 Archives

Texas widow settles wrongful death suit

The widow of a man killed last year when a plane crashed into an office building housing Internal Revenue Service offices has settled her wrongful death lawsuit against the pilot's estate. The widow's late husband was a 68-year-old IRS employee and one of two people killed last February as a result of the crash. The widow also worked in the building but escaped without injury.

HELMET SAFETY STILL A MAJOR CONCERN

Tasked with creating stiffer helmet standards to help prevent the rash of concussions in football, board members from the National Operating Committee on Standards for Athletic Equipment said Friday that they need more time and research before coming up with anything concrete. Concussions have become a hot-button issue in recent years as doctors have gained a better understanding of the symptoms and long-term effects. According to the AP, the NFL has been the flash point of the discussion with all those hard hits causing potentially devastating health issues down the road.

Passenger killed and driver charged with DWI in weekend accident

The driver in a fatal accident early Saturday morning has now been charged with intoxicated manslaughter, according to a report in the Houston Chronicle. The 27-year-old passenger was seriously injured in the crash and later pronounced dead at Ben Taub General Hospital.

Another Nail in the Medical Malpractice Coffin

The Texas Supreme Court dealt another blow to Texans who are victims of medical malpractice on January 14, 2011, in the case of Franka vs. Velasquez. This case should be a wake-up call to all patients who may see a state employed doctor, as this blow is likely fatal to any claim brought against any state employed physician. The court held that no patient in Texas can bring a medical malpractice case against a state employed physician if it involves the physician's decision-making process, and not caused by a condition or use of tangible personal property. For example, if a patient is seen at Memorial Herman Hospital by a University of Texas physician, and that physician fails to diagnose breast cancer that causes the death of a mother of three, the physician will not be held accountable for her death under the Texas medical malpractice laws.

U.S. Auto Recalls at a Six-Year High in 2010

Last year saw the largest number of auto recalls in the U.S. in the last six years. Over 20.3 million motor vehicles were recalled due to auto defects and safety reasons - the highest number since 2004 when 30.8 million vehicles were recalled, according to the National Highway Traffic Safety Administration (NHTSA). the Detroit News, automakers launched 648 recall campaigns in the last 12 months, second only to 2008.

Juries Hold Companies Accountable

In December 2010, a jury awarded a physical therapist $66 million for injuries that she sustained when an exercise machine manufactured by Cybex fell on her at work. But that was not last year's largest award. That distinction goes to a verdict against Teva Pharmaceutical Industries for $505.1 million for claims alleging that the packaging of propofol, which has been in the news in connection with Michael Jackson's death, made it too easy for the drug itself to be contaminated.

Welcome to Our Houston Wrongful Death Law Blog

At the law office of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, we have protected the rights of personal injury victims in the Houston area since 1951, including people who have lost loved ones because of the negligent or careless acts of others. We are one of the oldest and most well respected firms in Houston, with a longstanding reputation for working efficiently and diligently to help people get full and fair compensation for personal injuries. Our clients come from all walks of life, from nationally known artists and athletes to regular working folks. We combine extensive skill, knowledge, experience and resources to help you get the outcome you need to move forward with your life.

Viva Houston

Last Wednesday, I was honored to be a panel member on ABC's Sunday morning news show, Viva Houston. The focus of the program was to examine issues affecting Latinos currently, but to also look back at 2010 and discuss important events affecting the Latino community locally, state-wide, and nationally. The panel discussed the impact of the new Healthcare laws, the importance of the 2010 census, the need for comprehensive immigration reform on a national level, current bills pending in the Texas legislature concerning the civil rights of many Texas residents, and also the recent tragedy in Arizona and how that state's recent history has fueled a great deal of political rhetoric. I was honored to be joined on the panel by Sylvia Garcia (former Commissioner of Harris County, Precinct 2), Ray Morales (former Houston mayoral candidate), and Tatcho Mindiola (Professor of Sociology and Director of Mexican-American Studies at the University of Houston). Viva Houston was hosted by Eric Barajas who did an excellent job keeping the dialogue focused and entertaining. If you are interested on watching the entire thirty minute segment, tune into ABC Channel 13 this Sunday at 11:30 a.m. CST.

JURY SENDS MESSAGE IN HARRIS COUNTY - "NO MORE PILL MILLS"

On January 18, 2011, jurors in Harris County sent a message to health care providers when they awarded $10.1 million in damages to the family of an overdose victim, Michael Skorpenske. According to jurors interviewed following the verdict, this was a clear message to "pill mills" that have turned Houston into a center for prescription drug abuse. "Our verdict shows how much our community is against these pill mills and wants things to change," according to juror Lauren Simmons. Tim Bammel, another juror in the case, stated that the verdict "should discourage others who might be improperly churning out the addictive drugs that killed Skorpenske."

Houston Court of Appeals Affirms Jury Verdict for Family of Deceased Worker

On Wednesday, January 20, 2011, the First Court of Appeals in Houston affirmed a jury verdict in favor of the widow, infant child, and father of a worker who was killed when a garbage truck backed over him. The case is entitled Republic Waste Services of Texas, Ltd., et al. v. Martinez, et al., ___ S.W.3d ___ (Tex.App.-Houston [1st Dist.] 2011, no pet.).
In this case, brought on behalf of the worker's family by attorneys bagosto@abrahamwatkins.com, Jr., Johnny Garza, and Jay Jackson, the employee was a young man who worked on a garbage truck for Republic Waste. On a cold, damp day, while he was going to pick up a garbage can, the truck backed over and killed him. Republic Waste did not provide workers' compensation benefits to its employees, so the firm filed suit based upon the negligence of Republic Waste and its driver.
At trial, Republic Waste wanted to offer evidence that the worker was undocumented. Republic Waste has hired numerous undocumented workers, and in fact was raided by ICE a couple of weeks after the incident. The trial court determined that the evidence Republic Waste wanted to offer was inadmissible. The jury, after hearing the case and considering it carefully, returned a verdict for the family. So, Republic Waste appealed.
The Court of Appeals ruled that, while the evidence offered by Republic Waste about the ICE raid might have some relevance, it was speculative whether the worker would have been caught and deported, and further that the probative value of the evidence was outweighed by the potential for prejudice. The Court ruled that the trial judge did not abuse his discretion when he refused to let Republic Waste offer prejudicial evidence. Based upon this, the Court upheld the jury's verdict.

"Another Recall for Drug Manufacturer"

According to the New York Times, Johnson & Johnson (J&J) has announced another recall of various medications due to "past manufacturing practices like insufficient equipment cleaning systems" The 43 million packages recalled were of Tylenol, Benadryl, Sudafed and Sinutab. Johnson & Johnson claims the recall was initiated as a precaution. Allegedly, there have been no health problems reported involving the products.

New Jersey-based Johnson & Johnson Sued by US state of Oregon

New Jersey-based Johnson & Johnson is sued by the US state of Oregon for having conducted a 'phantom recall' of its defective Motrin caplets.
Johnson & Johnson has been held accountable for not having notified consumers who bought the defective product, and exposed other consumers to potential danger from its use.
The lawsuit seeks restitution for the purchasers of the caplets, a maximum of $25,000 fine for each violation of a state law governing trade practices, and other remedies.
Reuters.com quoted Oregon Attorney General John Kroger as saying that the company sought to avoid bad publicity by quietly removing the suspect containers from stores through hired private contractors.
Johnson & Johnson was subjected to criticism in the Motrin recall case last year too when USFDA commissioner Margaret Hamburg called it a departure from the company's history of responsible behavior towards public health.

South Texas College of Law Houston Graduation

I recently was honored to give the commencement address at the December 2010 South Texas College of Law Houston graduation. One of the areas I talked about was giving back to the community using the law degree that was to be awarded. Here is a part of that address:

Population growth

Following every decennial federal census, the inevitable population shifts among states require the 435 districts that comprise the United States House of Representatives to be redrawn in order to ensure that they each contain the same number of constituents. The results of the most recent census reveal that at 3.9 million new residents, Texas experienced the largest population growth in the country, and will pick up an additional four seats in this year's apportionment.

HIGH COURT FAVORS HOMEOWNERS

Massachusett's highest court, the Supreme Judicial Court, recently issued a ruling favoring homeowners.In US Bank N.A. v. Ibanez, which consolidated two appeals, Option One Mortgage Corp, created blank mortgage assignments and then sold the mortgages without recording them. In one case, Option One was the original lender, and in the other it was the first purchaser of the loan. In both cases, the loans were resold multiple times before the foreclosure.Immediately before the foreclosure, the banks placed notices of the foreclosures in the local daily news paper. The banks sought judicial confirmation that such notice met state law requirements. They were not expecting the courts' response. Both the lower court and the Supreme Judicial Court determined that while the notice was sufficient, the banks "failed to make the required showing that they were the holders of the mortgages at the time of the foreclosures." While it is unclear whether the banks involved can make the necessary showing, the important point remains: "there must be proof that the assignment was made by a party that itself held the mortgage." Such a showing may be difficult in situations where loans are securitized, which is the common practice in the mortgage industry, because the securitization documents exchanged between banks may fail to demonstrate who was the holder of the note at the time of the attempted foreclosure sale.

"Texas Court Adds Another Trap to Medical Malpractice Cases"

According to the Fort Worth Court of Appeals, a plaintiff who voluntarily dismisses their claim against a doctor, and then later re-files the claim does not get an extra 120 days to file their expert report. Town Hall Estates-Arlington Inc. v. Lucy Cannon, Fort Worth Court of Appeals, No. 02-10-00185-CV, 12-16-2010So if you filed your original claim on January 1st, your expert report must be filed by 120 days from January 1st even if you voluntarily dismissed the claim shortly thereafter and then later decided to file it again. Bottom line, beware of all of the traps in place to punish the plaintiff for even thinking about suing a doctor.

Supreme Court Rules Against Injured Cyclist

In a recent case, the Texas Supreme Court ruled against a bicyclist who steered around a street barricade and struck a chain across a dark street. The university had not placed customary cones and reflective tape near the barricade and chain. In the case of The University of Texas at Austin v. Hayes, ___ S.W.3d ___ (Tex. 2010)(12/3/10), the Supreme Court ruled that the chain did not constitute a "special defect," and that the cyclist did not prove that the university had actual knowledge of a dangerous condition, which is a necessary element for a premises defect theory.
"Whether a condition is a special defect is a question of law." "The Legislature does not define special defect but likens it to conditions 'such as excavations or obstructions on highways, roads, or streets.'" "[C]onditions can be special defects "'only if they pose a threat to the ordinary users of a particular roadway.'" "[W]e have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway." This is a "narrow" class. A hole covering 90% of the road is one, but not a "two-inch drop." "Our special-defect jurisprudence turns on the objective expectations of an 'ordinary user' who follows the 'normal course of travel.'" So, a floodgate arm three feet off the road was not a special defect because "an 'ordinary user' would not have left the roadway. . . ." Likewise, here, the cyclist "did not take the normal course of travel." He should have turned back, and an ordinary user "would not have traveled beyond the barricade." Accordingly, this is not a "special defect."
The Court further said that the cyclist failed to prove a premises defect case. "To establish a waiver of immunity for a premises-defect claim, the plaintiff must show that the landowner failed to either (1) use ordinary care to warn a licensee of a condition that presented an unreasonable risk of harm of which the landowner is actually aware and the licensee is not, or (2) make the condition reasonably safe." "To prove the actual-knowledge element, the licensee must show that the owner actually knew of a 'dangerous condition at the time of the accident.'" Though the university knew of the chain, it also "had placed a large barricade in front of the chain." Somehow, that "negates arguments that the University had actual knowledge of a dangerous condition. . . ."
Evidence that a parking representative imagined bicyclists would go around the chain and that it would be possible to hit it did not prove actual knowledge. "[A]ctual knowledge requires the landowner to know 'that the dangerous condition existed at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.'" Also, evidence that the university typically put reflectors and cones near the barricade and chain was insufficient: proof that the school "could have done more to warn him is not direct evidence to show that the University had actual knowledge of a dangerous condition." Moreover, the investigating police officer's report - written after the incident - that poor lighting made it difficult to see the chain "is not evidence of what the University knew at the time of the accident."

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