Texas Injury Lawyer Blog

The autopsy plays a critical role in proving causation in vehicular crashworthiness cases which result in the death of a passenger. Death cases almost always involve substantial impacts that necessarily involve sudden acceleration/deceleration type forces. These forces are virtually unavoidable and are often fatal. Fatal deceleration injuries might include a transected aorta or a brain stem shear. Deceleration type injuries must be ruled out.

The goal of the crashworthiness case is to prove that the faulty design of the vehicle subjected the occupant in an otherwise survivable crash to lethal trauma. It is difficult to accomplish this goal without an autopsy or at the very least an extensive medical workup.

The Forth Worth Court of Appeals recently released the opinion in Medlen v.Strickland holding that a pet owner could recover sentimental or intrinsic value damages for the loss of a pet. The Medlen opinion flies in the face of the 120 year old Texas Supreme Court case of Heiligmann v. Rose decided in 1891. In Heiligmann the Texas Supreme Court held that the value of a dog was to be determined either by the market value or the pecuniary value to the owner. No case since that time has held that a pet owner could recover sentimental damages for the loss of a pet. The Medlen Court points to the more recent Texas Supreme Court cases of City of Tyler v. Likes and Porras v. Craig, both of which held that when personal property has little or no market value that the intrinsic or sentimental value may be used as a measure of damages. No court has applied this analysis to the loss of a pet until Medlen.

Medlen v. Strickland raises a number of interesting questions. If a motorist strikes and injures a cat in the roadway will the motorist, and consequently his automobile liability insurance company, be potentially liable to the cat's owner for sentimental damages? If a dog escapes from a fenced enclosure and kills the neighbors' pot bellied pig will the dog owner, and consequently his homeowner's liability carrier, be liable for intrinsic value damages for the death of the pig? If a dog expires during a medical procedure will the veterinarian, and consequently her malpractice liability carrier, be potentially liable for sentimental damages?

Since Medlen contradicts a 120 year old legal precedent it is highly likely that the Texas Supreme Court will agree to hear this matter. Studies suggest a very high correlation between insurance industry interests and Texas Supreme Court rulings in recent years. With the malpractice liability insurance industry, the automobile liability insurance industry and the homeowner's liability insurance industry all having a "dog in this hunt", Medlen v. Strickland is likely to be short lived.

The 5th Circuit , relying on Great-West Life & Annuity Ins. Co. v. Knudson and Sereboff v. Mid Atlantic Medical Services, Inc., recently handed down a decision in ACS Recovery Services, Inc. v. Griffin, holding that an employee benefits plan set up pursuant to the provisions of the Employee Retirement Income and Security Act of 1974 (ERISA) could not recover its' subrogation interest from a special needs trust established for the benefit of injured employee or from the loss of consortium settlement of the employee's spouse.

The ACS Recovery case represents a significant departure from the general trend that ERISA plans get whatever they want. At the outset ERISA plans were intended to be a self-funded cost saving device for employers whereby the employer experienced a substantial savings over paying inflated health insurance premiums to traditional health insurance companies. As an added incentive ERISA plans were given the right to recover all of their payments in the event of a third-party liability recovery. The ERISA subrogation interest was not subject to the Made Whole Doctrine, the Common Fund Doctrine, or any other equitable offsets. The rather onerous result was that the injured employee ended up in effect being the free collection agent for the Plan at the employee's expense. Most ERISA plans have adopted the self-righteous attitude they simply get all the money and that no one nor nothing else matters.

The ACS Recovery Services, Inc. v. Griffin decision is the first step toward putting the proverbial 700 pound gorilla back in its' cage.

The original Medicare statute, 42 U.S.C. 1395, contains no provisions for a Medicare set aside in liability cases. The original statute provided for a set aside in worker's compensation cases and those provisions have been extended by policy but not by regulation to liability cases. The CMS website has memos which shed light on the CMS expectations regarding Liability Medicare Set Asides (LMSA) but these memos technically have only the power of persuasion.

The Big R Towing case blessed the establishment of a LMSA. The Schexnayder case held that CMS approval of a LMSA is not required. The Guidry case in 2011 again approved a LMSA proposal. The United States Supreme Court in Chevron, 467 U.S. 837 (1984), set forth the analysis for determining whether an agency policy is enforceable. To be enforceable Congress must have spoken clearly on the issue or the agency's position must be a reasonable interpretation of the statute.

The Medicare statute is silent as to LMSAs and Congress has not otherwise addressed LMSAs. The MSP Act is at best vague and ambiguous regarding the issue of LMSAs. Medicare has not me the Chevron test. In Christensen v. Harris County, 529 U.S. 576 (2000), the United States Supreme Court held that internal agency interpretations and memorandums have the power of persuasion only. Nonetheless, the prudent practitioner would be well advised to thoroughly document their file including showing the factors considered in determining if a LMSA is appropriate and preparing an allocation showing the amounts allocated to each element of damages.

The Food and Drug Administration(FDA) has determined that a group of anti-depressants used to treat depression, anxiety and mood disorders, known as Selective Serotonin Reuptake Inhibitors, or SSRIs, can cause serious birth defects or even death when taken by certain pregnant women. The group of anti-depressants that causes birth defects includes Celexa, Fluvoxamine, Lexapro, Paxil, Prozac, Symbyax and Zoloft.

The most common birth defect is Neonatal Persistent Pulmonary Hypertension. Studies have repeatedly shown that pregnant women who took these SSRIs after the 20th week of pregnancy were six times more likely to have a baby with Neonatal Persistent Pulmonary Hypertension.

Other less likely birth defects caused by SSRIs include atrial septal defects(ASD), ventricular sepatal defects(VSD), tetralogy of fallot, heart valve defects, hypoplastic left heart syndrome(HLHS), cardiomyopathy, and patent ductus arteriosus(PDA).

Expectant mothers who took these SSRIs and delivered babies with these birth defects would be well advised to seek legal counsel.

In Brainard v. Trinity Universal Insurance Company the Plaintiff was killed when his vehicle was struck by an oilfield truck. He left a widow and five children. The well service company that employed the at-fault truck driver was underinsured and Brainard's family and Estate made a claim for underinsured motorist benefits against their own carrier, Trinity Universal Insurance Company. Trinity refused to pay the benefits.

A claim for uninsured motorist benefits is a suit on a contract. Pursuant to Texas Civil Practices and Remedies Code Section 38.002 the successful litigant in a suit on a contract is entitled to recover attorney fees. In order to recover attorney fees the Plaintiff must be represented by counsel, present the claim to the insurance company, and the insurance company must have failed to pay the claim within 30 days of presentment. There is no question that Brainard made a UIM claim and that Trinity Universal failed to pay the claim within 30 days. The jury rendered against Trinity which included underinsured motorist benefits and attorneys fees. Trinity Universal claimed that they simply had no duty to pay policy benefits until there was a legal determination and thus the obligation to pay attorney fees would not accrue unless they failed to pay benefits within 30 days after a judgment became final. The Texas Supreme Court agreed thus causing consumers to bear the burden of the attorneys fees necessary to force underinsured motorist carriers to pay even the most obvious and legitimate of claims.

The Brainard decision allows UIM carriers to use litigation as leverage in an attempt to pay their insureds less uninsured/underinsured motorist benefits than the insureds are entitled to receive.

The Texas Supreme Court held in Carnation Co. V Wong, 516 S.W.2d 116 (Tex. 1974), that persons whose negligence did not cause the auto accident should not have their failure to wear an available seatbelt admitted against them to reduce their damages. This law was well established over a decade later when the Texas Legislature passed Texas Transportation Code section 545 requiring the use of seatbelts by certain occupants of motor vehicles. At the time of the passage of Section 545 legislators, fearing that insurance companies would use the failure of an injured motorist to wear a required seatbelt as an excuse not to pay legitimate claims, added language to the legislation prohibiting the admission of evidence regarding the non-use of a seatbelt in injury cases.

Fast forward almost 20 years to the 2003 legislative session. In 2003 the insurance lobby dominated (some say owned) the Texas Legislature. The Legislature passed House Bill 4 including a provision repealing the sections 545.412(d) and 545.413(g) which prohibited the admission of evidence of the use or non-use of a seat belt. The insurance lobby hoped to use the failure of an injured plaintiff to wear a seatbelt in a contributory negligence type argument to reduce damages. However, Texas law has gone full circle and returned to the mandates of Carnation Co. v. Wong. While the failure to wear a seatbelt may arguable be admissible for some purposes, such as in certain products liability crashworthiness cases, it is inadmissible under Carnation Co. v. Wong to reduce or show a failure to mitigate the Plaintiff's damages.

The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. set forth the factors to be considered when determining the admissibility of expert scientific testimony. The factors are the degree to which the scientific theory has been or is subject to being verified by testing, the degree to which the science relies upon subjective interpretation by an expert, whether the theory has been published in professional publications or subjected to peer review and th rate of error of the technique.

The Texas Supreme Court has further defined and expanded the Daubert requirements in the cases of E.I. du Pont de Nemours Company v. Robinson, Broders v. Heise, United Blood Services v. Longoria, Merrell Dow Pharmaceuticals, Inc. v. Havner, Maritime Overseas Corp. v. Ellis and Gammill v. Jack Williams Chevrolet, Inc. The most noteworthy of these opinions is Havner which focused on whether the science applied by the expert was reliable. Havner added the requirements that the underlying data must accurate and the methodology sound.

Thus in presenting expert testimony it is critical that each of the foundational requirements be met before any expert opinions are elicited.

The United States Supreme Court's decision in Arkansas Department Of Human Services v. Ahlborn, 547 U.S. 268 (2006), has open the door for the made whole doctrine to be applied to Texas Medicaid subrogation. Historically, prior to the Ahlborn, Texas Medicaid largely refused to reduce their subrogation interest even if the interest absorbed most or all of the victim's recovery.

In Alhborn, Heidi Alhborn was severely and permanently injured in an automobile accident and received $215,000.00 in medical care which was paid for by the Arkansas Department Of Human Services. The case settled for $550,000.00, an amount which all involved agreed was vastly less than the full value of the case. The Arkansas Department Of Human Services asserted a right to be reimbursed the full amount of their subrogation interest in spite of the fact that doing so would clearly result in Alhborn being inadequately compensated for her injuries. The parties stipulated that Alhborn's claim was worth $3,040,000.00. The Trial Court held that ADHS was entitled to their full subrogation interest. The Eighth Circuit reversed the District Court holding that the ADHS could only recover that portion of the settlement that represented the recovery of medical expenses. The United States Supreme Court affirmed.

The Social Security Act, 42 U.S.C. 1396 et. seq., which create the Medicaid program, includes an anti-lien provision which prohibits a State Medicaid program from filing a lien for medical payments against the property of an individual prior to his death. The Supreme Court held that the anti-lien provision prohibited the State from attaching a lien to the non-medical portion of the recovery. The Ahlborn decision was based upon stipulated amounts. The appropriate procedure is a little less clear in situations where a case is settled without any stipulations or judicial findings as to how the settlement funds are allocated between the various elements of Texas personal injury damages. Many times Texas cases are settled for the amount of the available insurance policy limits even though all involved agree that the case is worth considerably more than the policy limits. Ahlborn gives rise to a persuasive argument that the Texas Medicaid subrogation interest should be limited to a proportional share of the recovery in a limited recovery situation.

Defamation of character is the maligning of one's character. Texas law breaks defamation of character into two separate causes of action depending on the form of the offensive conduct. Written defamation of character constitutes the tort of libel. Oral defamation of character constitutes the tort of slander.

The elements of both libel and slander are the same. The plaintiff in a libel and/or slander case must prove that the Defendant (1)knowingly or negligently, (2) made false, (3)defamatory statements, (4) which caused damages to the plaintiff. For a more detailed analysis see Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373(Tex. App. - Houston(1st Dist.) 2005, no pet.). It is not necessary that the Plaintiff prove that the Defendant had actual knowledge of the falsity of the statement as long as there is proof that the statement was made negligently. If there is evidence that the statements were made with actual knowledge of their falsity then the Plaintiff may also have a cause of action for intentional infliction of emotional distress.

Practitioners should pay special attention to the statute of limitation is libel and slander cases. While most tort claims in Texas have a two year statute of limitations, the Texas Practices and Remedies Code Section 16.002(a) provides a one year statute of limitations for libel and slander claims.

Medicare has released guidelines which will allow lawyers representing clients injured in certain types and sizes of cases to self-calculate the amount which must be repaid to Medicare. The self-calculation option is limited to physical trauma based cases. It is not available for non-trauma cases such as pharmaceutical claims, defective medical devices or chemical exposure cases all of which involve injuries which did arise from a single producing event. The total recovery must not exceed $25,000.00. The injury producing accident must have occurred at least six months prior to the self-calculation. Medical treatment must be complete and no further medical anticipated. The lack of a deed for any further accident related future medical treatment may be established either with a written statement from a physician or by a certification from the claimant that medical treatment has been complete for at least 90 days and that no further medical treatment is anticipated.

Medicare's self-calculation procedure provides a streamlined procedure for smaller trauma cases such as commonly result from automobile accidents. Because treatment is complete the Medicare Set-Aside issues are avoided. Further information may be obtained at www.cms.gov/cobgeneralinformation/

It's not uncommon in the course of handling personal injury cases to run across important witnesses who are reluctant or simply refuse to testify. Even a witness subpoena does little to solve the problem of the eyewitness who decides to have a memory lapse. We ran across such an adverse witness recently in an auto/truck collision case. An 18-wheeler driver was sitting in the left turn lane in the early morning hours waiting on a left turn arrow when another trucker made an illegal left turn from the right through lane and collided with a passenger car. The college student in the passenger care was severely injured and semi-conscious at the scene. The 18-wheeler driver left the scene before the police arrived but not before being seen by passersby. The negligent truck driver reported to the police that he was making a legal left turn on a left arrow and that the accident was caused by the college student.

When our private investigator located and interviewed the 18-wheeler driver that had witnessed the accident the driver refused to give a statement and stated that if subpoenaed he would not remember anything. When pressed he stated that he was simply "not going to hang another trucker out to dry".

Witnesses can be impeached with their prior inconsistent statements. Texas Rule of Evidence 613(a) provides that before a witness may be impeached he must be told the contents of the prior statement and given an opportunity to explain or deny the statement. In our case the 18-wheeler driver could be called to testify and questioned in detail regarding his statement the he was not going "to hang another trucker out to dry." If he admitted the statement then he would not be further impeached. If he denied the statement then the evidence cases provide that he may be impeached by any competent evidence or witnesses. In our case the private investigator would be called to testify as to the prior statements. Either way the effect on a jury would be obvious.

Many Texans mistakenly believe that if they are injured on a commercial property that the owner of the property is automatically liable for their injuries and damages. Such is not the case. When a patron enters a business they become what is known as a "business invitee". The owner or operator of a business owes certain duties to their invitees. The owner must make reasonable efforts to discover dangerous hidden defects and either correct the defects or warn customers of the defects. The business has no duty regarding "open and obvious" defects.

Regarding hidden defects the claimant may prove either actual or constructive notice. Regardless of the facts of the case a business owner rarely admits actual notice of a dangerous defect. Even when businesses create dangerous situations they often continue to deny knowledge of the dangerous condition. Thus notice is often proved by constructive knowledge. A premises owner or operator is charged with knowledge of any premises defect that a reasonably careful inspection would have revealed. Furthermore, the Texas Supreme Court has held that constructive knowledge of a defect may be established by a showing that the condition or defect had existed for a long enough period of time that the owner should have discovered the defect.

There is no case where it is more important than in a premises liability case to obtain immediate evidence regarding the condition of the scene of the accident. It is a common practice in the business world to correct a dangerous condition immediately following an accident and then deny that the condition ever existed. In a day when virtually everyone with a cell phone also has a camera premises liability victims would be well advised to have someone take pictures of the scene before the victim leaves the scene of the accident.

The Texas Tort Claims Act as codified in the Texas Civil Practices and Remedies Code first gives school districts a broad grant of immunity from tort claims then sets forth certain limited exceptions to that immunity. Section 101.021 of the Civil Practices and Remedies Code provides that a governmental unit may be held liable for personal injuries or wrongful death if the injuries resulted from the negligent operation of a motor vehicle by an employee of a governmental unit acting in the course and scope of their employment. Section 101.001(3)(B) provides that a school district is a governmental unit within the meaning of the statute.

Section 101.023 of the Texas Civil Practice and Remedies Code sets damages caps for different types of governmental units. Claims against the state government are subject to a limitation of liability of $250,000 for each person and $500,000 for each single occurrence. The liability of a unit of local government is limited to $100,000 per person and $300,000 per occurrence. A school district is a unit of local government.

Section 101.101 provides for special notice provisions which require strict compliance. School districts are entitled to receive notice of a claim within six months of the injury producing accident. The notice must reasonably describe the alleged injury, the time and place of the incident, and the incident. Practitioners would be well advised to send a certified notice letter to school district superintendant at the first opportunity.

Section 101.106 sets forth so-called election of remedies provisions which could easily cause the unwary practitioner to unwittingly waive a portion of a claim.

On September 1, 2011, Section 82.0651 of the Texas Government Code went into effect. Section 82.0651 allows a barratry lawyer to collect from an ambulance chasing lawyer or his investigator a $10,000 fine as well as the attorneys fees and expenses expended in the collection of the fine. The fine is considered a liquidated damage and is paid to the solicitation victim who refused to sign a contract with the unscrupulous attorney.

A number of Texas lawyers have risen to the occasion and are openly advertising that they will assist solicitation victims. The most common scenario is when an auto or truck wreck occurs the innocent drivers or passengers are solicited by "ambulance chasers." These attorneys oftentimes use so-called "investigators" to do their dirty work but it is also common, particularly in severe injury accidents, for the lawyer himself to personally contact the victims or their families and illegally solicit employment. Each of the acts of solicitation gives rise to a $10,000 penalty payable to the victim.

In the East Texas area Craig Daugherty of Tyler is assisting solicitation victims. In South Texas, Bill Edwards of Corpus Christi has been actively pursuing ambulance chasing attorneys for a number of years. In the Dallas/Fort Worth area Chris Whitaker with the firm of John R. Salazar P.C. is pursuing lawyers who violate the barratry laws. In Houston attorney Thomas J. Henry offers to assist injured claimants who have been solicited by police officers, tow-truck drivers, body shop employees, telemarketers, funeral home personnel, news reporters, clergy, chiropractors, doctors, hospital employees, insurance agents, or law firm "investigators" who work with unethical attorneys. These "case-runners" are usually working on a commission basis for an attorney and may offer gifts, money or promises in an attempt to get the injured victims to sign a contract with a particular attorney.

For more information contact a Tyler Injury Attorney today.