NEWS

Congratulations to Morgan McPheeters who won her first appeal in the Fort Worth Court of Appeals!  Morgan successfully upheld a default judgment in favor of a personal injury plaintiff, where the defendant attempted to challenge the judgment through a bill of review more than four years after the judgment was entered, claiming extrinsic fraud in the manner in which substituted service was executed.  You can read the court’s opinion here.

Congratulations to Peter Kelly who convinced the Fourteenth Court of Appeals in Houston to affirm a $1.1 million judgment obtained by Jason Gibson and Andrew Smith against Kroger following an incident in which a meatcutter lost four fingers on his dominant hand.

Among other issues on appeal, Kroger argued that its duties should be limited to those owed by premises owners to invitees–meaning no duty to train or supervise, hire competent co-employees, provide appropriate instrumentalities, etc.  The court rejected that argument based on the Supreme Court’s recent opinion in Austin v. Kroger.  Kroger also argued that the trial court erred in admitting certain photographs taken by the plaintiff after he returned to work, claiming that the pictures were thus the result of a criminal trespass and thus inadmissible under the exclusionary rule.  The court rejected this argument as well.  You can find a link to the opinion here.

Congratulations to Partner, Peter Kelly who has been appointed to a second three-year term on the Texas Supreme Court Advisory Committee.  Currently comprised of 46 judges, former judges, and practitioners, the Committee assists the Supreme Court in the continuing study, review, and development of rules and procedures for the courts of Texas, taking into consideration the rules and procedures of other courts in the United States and proposals for changes from whatever source received. The Committee drafts rules as directed by the Court; solicits, summarizes, and reports to the Court the views of the bar and the public on court rules and procedures; and makes recommendations for change.

Congratulations to Leigh Bradford who convinced the Dallas Court of Appeals to reverse the trial court’s dismissal of a medical malpractice case based on the sufficiency of the Chapter 74 expert report.  The Dallas Court of Appeals determined that the trial court abused its discretion in dismissing the claims against a doctor, finding that the Chapter 74 expert report sufficiently demonstrated a causal relationship between the physician’s negligence and the death of Mr. Mitchell.  You can read the court’s opinion here.

In response to a very defense-oriented article which argued that, despite the plain language of the statute, a plaintiff could obtain punitive damages for fraud only if some level of “super-fraud” had been proved, Peter Kelly wrote a rebuttal published by the Texas Lawyer on June 1, 2015 that clarified the statutory requirements for obtaining punitive damages in fraud cases.

Congratulations to Kevin Camp who, along with the help of Kirk Pittard, obtained a $5.24 million verdict in favor of their client, John Blommer, against BNSF Railway back in October of last year.  On May 25, 2015, the verdict was highlighted by the Texas Lawyer as the second-highest toxic tort verdict in 2014.

On May 25, 2015, John Council and the Texas Lawyer featured Leighton Durham and the cow in the road case again.  In this installment, the Texas Lawyer zeros in on a motion to dismiss Leighton filed with the Dallas Court of Appeals, urging the court to not only dismiss the defendants’ appeal but also award Leighton’s client the attorney’s fees incurred in having to ask the court to do so.

Another month, another big win for Peter Kelly, this time in In re Memorial Herman Hosp. Sys., No. 14-0171, — S.W.3d —, 2015 WL 2438752 (Tex. May 22, 2015).  In this case, Dr. Gomez brought suit against  Memorial Hermann, his former employer, seeking damages caused by the hospital’s defamatory “whisper campaign” against him.  The hospital claimed that all the relevant documents were protected by the medical peer review privilege; on mandamus, the Texas Supreme Court held that the “anticompetitive action” exception to the privilege applies, and ordered the vast majority of the documents produced.

On April 24, 2015, the Texas Supreme Court decided Brown & Gay Eng’g, Inc. v. Olivares, No. 13-0605, — S.W.3d —, 2015 WL 1897646 (Tex. April 24, 2015), a case in which a private engineering firm retained by a governmental entity to design and build a toll road asserted “derivative sovereign immunity” in an effort to protect itself from liability for a three-fatality accident caused by its own negligent design.  Peter Kelly convinced the Texas Supreme Court to decline to expand the doctrine of governmental immunity to extend to private entities that contract with the government, and allowed the underlying lawsuit against the engineering firm to proceed.   Justice Lehrmann’s opinion can be found here, and a concurring opinion by Chief Justice Hecht can be found here.

KD&P is pleased to announce that Morgan McPheeters passed the Texas Bar Exam!  Morgan is now licensed to practice law in Texas and New Mexico.  Congratulations Morgan!