Congratulations to Rick Thompson, Valerie Farwell, and trial counsel, Richard Dodd, who convinced Houston’s 14th Court of Appeals to reverse an asbestos MDL summary judgment ruling on causation. The Court of Appeals found there to be a fact issue on direct causation, precluding summary judgment, where there were no other “plausible sources” of asbestos exposure, explaining:
“If reliable expert testimony shows that only exposure to asbestos can cause asbestosis and if Alcoa was the source of all the asbestos to which Carolyn was exposed, then the evidence directly proves that asbestos from Alcoa was a substantial factor in causing Carolyn’s asbestosis. In this situation, whatever the dose or amount of asbestos to which Carolyn was exposed, that dose or amount must have been sufficient to cause asbestosis because only asbestos exposure causes this disease and Alcoa was the source of all the asbestos to which Carolyn was exposed. When proving substantial-factor causation through direct, scientifically reliable proof, it is not necessary to show that the asbestos from Alcoa more than doubled Carolyn’s risk of suffering from asbestosis.”
The case is Burford v. Howmet Aerospace, Inc., No. 14-22-00417-CV, — S.W.3d —, 2024 WL 790285 (Tex. App.—Houston [14th Dist.] Feb. 27, 2024). You can read the opinion here, and you can read articles about the case here (Law360.com) and here (Texas Lawyer).
Congratulations to Dana Levy and trial counsel, Scott Hendler and Grayson McDaniel, who successfully defended a challenge to their nursing administrator and forensic pathology expert reports. In this nursing-home negligence case in which a resident died of hypothermia during Winter Storm Uri, the defendants objected that licensed nursing home administrators and a forensic pathologist were unqualified to provide preliminary expert reports under Chapter 74 because the administrators were not medical providers who treat patients, and the pathologist had never treated seniors. The trial court denied motions to dismiss the case and the court of appeals affirmed, holding that the nursing home administrators were qualified because their expertise spoke to the plaintiff’s core allegation that the nursing home and its executives failed to provide a safe physical environment for residents and that the forensic pathologist did not need to treat patients to offer causation opinions. The case is Ramsay v. Ferguson, No. 07-23-00392-CV, 2024 WL 769537 (Tex. App.—Amarillo Feb. 23, 2024, no pet. h.) (mem. op.). You can read the opinion here.
Congratulations to Shelby White, Thad Spalding, and trial counsel, Daryl Washington, who settled a civil rights case against the City of Arlington and one of its officers for $1.9 million. The case involved the fatal shooting of Tavis Crane by Arlington police officer Craig Roper after Crane was stopped when his toddler threw a candy wrapper out of the car window. The trial court granted summary judgment to Officer Roper on the basis of qualified immunity. On appeal, the Fifth Circuit reversed that judgment, finding fact issues that needed to be decided by a jury as to whether Roper acted used reasonable force, considering–among many other facts–the speed with which Roper resorted to using deadly force.
The City and Officer Roper asked the entire 5th Circuit to rehear the case. That request was denied by a 10-6 vote. The City and Officer Roper then petitioned the U.S. Supreme Court to review the case. After responding, with the help of Kelsi Corkran and her team at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, the U.S. Supreme Court denied review on November 14, 2023, paving the way for the resolution of this case.
The case is Crane v. City of Arlington, Tex., 50 F.4th 453 (5th Cir. 2022), reh’g denied, 60 F.4th 976 (5th Cir. 2023), cert. denied sub nom. City of Arlington v. Crane, 144 S. Ct. 342 (2023), and cert. denied sub nom. Roper v. Crane, 144 S. Ct. 342 (2023). You can read a Dallas Morning News article about the case and its resolution here.
Congratulations to Roz Bienvenue, Justin Kaufman, and trial counsel, Jim Hada, who successfully moved to remand a case from federal to state court in New Mexico for the family of a student killed in a bus crash returning from a college golf tournament. The district court held that the Federal Motor Carrier Safety Regulations do not create a private right of action for personal injury or wrongful death, and the plaintiffs’ complaint did not raise federal questions turning on the substantive construction of federal law. Therefore, the defendant’s removal of the case to federal court was improper. The case is Lopez v. Univ. of the Southwest, No. 2:23-cv-00327-DHU-JHR, 2024 WL 68531 (D.N.M. Jan. 5, 2024).
On December 28, 2003, Leighton Durham and Kirk Pittard started a law firm concept in Dallas that did not yet exist—an appellate boutique. They decided to focus on what they did best– handling appeals as well as substantive motion practice, legal issues, and litigation support at the trial level—and would do so for medium to smaller sized law firms, with a particular emphasis on contingency fee work. Fast forward 20 years . . . that dream and vision now consists of 14 attorneys in three cities across Texas and New Mexico. Today, Durham Pittard & Spalding is the largest appellate and litigation support firm with a presence on both sides of the Pecos River with a strong reputation of excellence, attention to detail, and success for their clients. Leighton, Kirk, and everyone at DP&S greatly appreciate the trust our clients have placed in us and the opportunity to serve those clients over the past 20 years and we look forward to many more successful years ahead.
Congratulations to Santa Fe attorneys, Caren Friedman and Phil Kovnat, who, along with Dallas trial counsel C. Kyle Pugh and appellate counsel Jeffrey Levinger, successfully convinced U.S. District Judge Reed O’Connor of the Northern District of Texas to deny a Motion for New Trial, for Remittitur, or to Alter or Amend the Judgment filed by the United States of America in a Federal Tort Claims Act case. Following a bench trial involving a collision between a United States Postal Service truck and a motor vehicle operated by Michael Le, which rendered Mr. Le a quadriplegic, Judge O’Connor awarded Plaintiffs over $26 million in damages, including damages for past and future physical pain and suffering, mental anguish, physical impairment, disfigurement, and loss of consortium. The Government sought to dramatically reduce the judgment by invoking the Fifth Circuit’s “Maximum Recovery Rule.” Judge O’Connor agreed with Plaintiffs, however, that the Maximum Recovery Rule either was inoperative, or that the Court’s award was a reasonable departure from the rule, given the unique nature of Mr. Le’s injuries. Denying the Government’s motion in its entirety, Judge O’Connor repeatedly rejected the Government’s efforts to “dress up” other cases as factually similar and its attempts to “retry or minimize” the damages. You can read the Memorandum Opinion and Order here and a Law360 article about the case here.
DP&S is pleased to announce that Lara Hollingsworth has joined our team as a partner in our Houston office.
Lara comes to us from Rusty Hardin & Associates where she was a lawyer and partner for over 20 years. Lara has been recognized as one of the 500 Leading Litigators in America by Lawdragon and has been recognized as one of the Best Lawyers in America from 2020-2024. Additionally, Lara was recognized by Thomson Reuters as a Texas Rising Star in 2004, and 2006-2010, and as a Texas Super Lawyer from 2020-2023.
Lara graduated magna cum laude from Baylor Law School where she served as editor of the Baylor Law Review and on Baylor’s moot court team. After graduation, Lara served as a law clerk for the late Judge Samuel D. Johnson on the United States Court of Appeals for the Fifth Circuit and for the late Justice James A. Baker on the Texas Supreme Court.
Lara is admitted to practice in all Texas state courts, the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit, and the United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas.
We are excited to have her aboard!
Tammy Holt, of our Dallas office, argued at the Texas Supreme Court on November 29, 2023. At issue in this case is whether diligence in service of process is a “statutory prerequisite to suit” for claims brought under the Tort Claims Act.
Texas State University filed a plea to the jurisdiction, asserting that the court had no jurisdiction over the tort claims brought by plaintiff, Hannah Turner, because, although Tanner filed suit against TSU within the limitations period, she allegedly did not diligently serve citation. Interpreting Government Code 311.034’s statement that all “statutory prerequisites to suit” are jurisdictional, the Court of Appeals held that the general statute of limitations found in CPRC 61.003 is a jurisdictional statutory prerequisite, but that the “diligence” requirement was created by the courts rather than expressly stated in a state, and the diligence requirement is not, therefore, a statutory prerequisite to suit.
Santa Fe attorney Caren Friedman was one of four New Mexico appellate practitioners asked to participate in panel discussions at the Appellate Bench and Bar Conference, held in the supreme court courtroom on Friday, October 20, 2023. Caren joined a distinguished panel of supreme court justices, court of appeals judges, and court staff to discuss topics of interest and concern to the appellate bench and bar. After the conference adjourned, participants gathered for a luncheon to continue the discussion informally. Santa Fe attorneys Roz Bienvenu and Phil Kovnat were also in attendance.