David Medack recently obtained a Summary Judgment ruling on behalf of Costco Wholesale Corporation in the United States District Court for the Southern District of Texas – Houston Division. The case involved a slip an fall accident that occurred outside the warehouse on a rainy day. The Federal Magistrate, in a reasoned opinion, agreed with Costco’s position that “Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm. . . . The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control.” After reviewing Costco’s Motion for Summary Judgment and the Plaintiff’s evidence in reply, the Court Granted Costco’s Motion and Dismissed the case, with prejudice.
Joe Heard and Stephen McGrath received a defense verdict on behalf of their client in Harris County District Court. The case involved a motor vehicle accident where the plaintiff’s vehicle impacted the defendant’s vehicle as the defendant was attempting to make a legal left-had turn. The plaintiff alleged he sustained injuries to his neck, shoulder, and back and was seeking the recovery of medical expenses and pain and pain suffering. Following its deliberations, the twelve-person jury returned a unanimous verdict finding the plaintiff 100% at fault for the incident. Accordingly, the Court entered a judgment that the plaintiff takes nothing and awarded the defendant costs of court.
Joe Heard and Nadia Lakhani received a defense verdict on behalf of their client in Harris County District Court. The case involved a motor vehicle accident where the plaintiff’s vehicle impacted the defendant’s vehicle. Plaintiff and defendant were traveling in the same lane and defendant was traveling in front of plaintiff. Plaintiff alleged that defendant changed lanes and swerved back into the lane that plaintiff was traveling on to avoid a collision. The plaintiff alleged she sustained injuries to her neck, right arm and back. Following deliberations, the twelve-person jury returned a unanimous verdict finding the plaintiff at fault for the accident. Accordingly, the Court entered a judgement that the Plaintiff take nothing and awarded the defendant the costs of court.
David Medack received a defense verdict on behalf of Costco Wholesale Corporation in Harris County District Court. The case involved an incident where the Plaintiff was attempting to help a Costco employee move a large box for another customer. The Plaintiff did not make it clear he was attempting to help and the Costco employee was unaware of the Plaintiff’s involvement due to the size of the box. The Plaintiff had his hand under the box as the employee began moving it. As the box dropped onto a pallet cart, the Plaintiff’s arm was jerked and he sustained a ruptured bicep tendon that required surgical repair. The Plaintiff made a claim past medical expenses, pain and suffering, loss of earnings, physical impairment and disfigurement. The 12 person jury deliberated for almost two hours and found the Plaintiff 60% negligent in causing his accident. Because the Plaintiff’s negligence exceeded 50%, he made no recovery and the jury did not award any damages. The Court entered a Take Nothing Verdict in favor of Costco Wholesale Corporation.
David Medack received a defense verdict in the United States District Court for the Eastern District of Texas. The case involved a low speed impact between a tractor trailer rig and a sedan. The plaintiff was a passenger in the sedan. The plaintiff sustained a hand injury and her medical expert opined that the cost to surgically repair her hand would be $53,000. The plaintiff also alleged lost wages and impaired earning capacity. The defense contested liability and damages. The defense also designated the driver of the sedan as a Responsible Third Party so her conduct could be evaluated by the jury. Following its deliberations, the 9 person jury returned a unanimous verdict finding the driver of the sedan negligent. The driver of the tractor trailer was not found negligent. Accordingly, the Court entered a Judgment that the Plaintiff Take Nothing.
Jim Davis secured a summary judgment ruling on behalf of his client in a complex multi-party construction defect case pending in Starr County, Texas. The ruling resulted in the complete dismissal of all claims against Jim’s client.
David Medack obtained a take-nothing verdict in favor of the firm’s client, Ram-Bro Contracting, Inc. following a two week jury trial. The case was filed against three defendants by Refugio Independent School District. The case involved a construction defect claim related to the foundation at Refugio Elementary School. Ram-Bro is a family owned business that has been in operation for 38 years and was responsible for the construction of the building pad and foundation at the elementary school. The allegations being made by Refugio ISD against Ram-Bro involved the use of improper select fill material which caused or contributed to foundation movement in the elementary school. Refugio ISD was seeking over $5 million in damages to rebuild the foundation. Ram-Bro and the other defendants defended the case by asserting that the foundation was performing as designed. The defendants also alleged that the original architect and structural engineer, who were not sued by Refugio ISD, were responsible for not adequately informing the school district of the possibility for foundation movement based on the design specifications. The case was originally filed in Refugio County. Due to pre-trial publicity, the defendants were successful in transferring the case to Calhoun County because of the inability to obtain an impartial trial in Refugio County. The trial began before the Honorable Stephen Williams and, after a two week jury trial, the jury found no negligence or breach of contract as to any defendant and did not award any damages to Refugio ISD. The jury found the architect 60% responsible, the structural engineer 30% responsible and Refugio ISD 10% responsible.
David Medack obtained a directed verdict in favor of Costco Wholesale Corporation in case number 2011-09455. The case was pending before the Honorable Sylvia A. Matthews in the 281st Judicial District Court of Harris County, Texas. The case involved a premises liability claim wherein the plaintiff sustained a serious injury following a fall in Costco’s parking lot. The case was called to trial and a twelve member jury was selected. The plaintiff then presented her case to the jury. At the conclusion of the plaintiff’s case, Mr. Medack made a motion for a directed verdict on the basis that the plaintiff had not met her burden of proof, as required under Texas’ premises liability law. After entertaining the arguments of both attorneys, the Court agreed with Mr. Medack’s motion and granted a directed verdict in favor of Costco Wholesale Corporation. The claims against Costco where then dismissed with prejudice.
David Medack obtained a product liability take-nothing verdict in favor of their client in a Jefferson County, Texas matter as reported by Verdict Search below:
Verdict Search Product Liability Reporter Volume 11, Issue 1 July 2013
Reported and edited by John Schneider
Man, 70, was pinned underneath riding mower
Jefferson County District Court, 172nd
Gross Negligence –
Products Liability – Lawn Mowers
Wrongful Death – Survival Damages
Products Liability – Design Defect
Thelma Baxter, individually and as personal representative of the estate of Everitt V.
Baxter v. Bad Boy Inc. and Louis’ Yazoo Sales and Service LLC
May 15, 2013
Thelma Baxter (Female),
Estate of Everitt V. Baxter (Male, 70 Years)
Larry C. Hunter; Provost & Umphrey Law Firm; Beaumont, TX, for Thelma
Baxter, estate of Everitt V. Baxter
D. Clinton “Clint” Brasher; Brasher Law Firm; Beaumont, TX, for Thelma Baxter, estate of Everitt V. Baxter John Gehlhausen; Law Offices of John Gehlhausen, P.C.; Lamar, CO, for Thelma
Baxter, estate of Everitt V. Baxter
Joe Muckleroy; Brasher Law Firm; Beaumont, TX, for Thelma Baxter, estate of
Everitt V. Baxter
Tommy Brown D.O.; Forensic Pathology; Beaumont, TX called by: Thelma
Baxter, estate of Everitt V. Baxter Thomas Berry P.E.; Engineering; Wichita, KS
called by: Thelma Baxter, estate of Everitt V. Baxter
Bad Boy Inc.,
Louis’ Yazoo Sales and Service LLC
David W. Medack; Heard & Medack; Houston, TX, for Bad Boy Inc., Louis’
Yazoo Sales and Service LLC
Bridget R. Brinson; Heard & Medack; Houston, TX, for Bad Boy Inc., Louis’
Yazoo Sales and Service LLC
Eric Benstock Engineering; Houston, TX for Bad Boy Inc., Louis’ Yazoo Sales and Service LLC
Burlington Insurance Co.
On June 26, 2009, plaintiffs’ decedent Everitt V. Baxter, 70, a retired mechanic who now worked mowing lawns, was mowing a lawn in Beaumont with a Bad Boy Lightning Z Pro Series riding mower with a 26 horsepower engine. At the same time, Baxter’s assistant was using a string trimmer on another part of the property. The assistant came looking for Baxter and found him pinned beneath the mower, the front end of which was propped about 2 feet high against a brush-covered hurricane fence. Baxter was pinned under the “deck,” which is the part of the mower that houses the blades, but the blades were already turned off at the time, and the engine may not have been running, either. The assistant called emergency personnel, who came and extricated Baxter, but he was already dead. The cause of death was mechanical asphyxiation; the weight of the mower compressed his chest and prevented him from breathing. Baxter had bought the mower about four years earlier and used it almost daily. It had a “zero” turning radius and each rear wheel was controlled by a separate control arm. The front wheels were simply casters. The mower weighed about 1,400 pounds. Baxter’s estate and widow sued manufacturer Bad Boy Inc., Batesville, Ark., alleging a design defect and gross negligence. His family claimed that the mower failed to comply with the American National Standards Institute (ANSI) because the traction drive did not disengage automatically when there was no operator in the seat. The plaintiffs also sued Louis’ Yazoo Sales and Service LLC, an independent Bad Boy Inc. retailer, but dismissed it before trial. The plaintiffs’ engineering expert opined that Baxter accidentally activated one of the control arms while re-mounting the mower after moving an obstacle, and that the mower then spun on top of him. The defense noted that, for that scenario to be true, Baxter would have had to disregard safety warnings to turn off the engine and set the parking brake before leaving the mower. The defense argued that the mower did comply with the ANSI standard in question. When the operator is seated on the mower, he cannot dismount without putting the control arms in the “outboard” position, or moving them to the side, which disengages the traction drive. The defense argued that Baxter probably ran the mower up into the brush by mistake, and when he crawled underneath the deck and tried to disentangle it, the mower probably just dropped onto him or settled onto him. Also, Baxter had previously performed repairs on the mower himself, and the defense argued that he had wired around the seat safety switch. Baxter’s son-in-law denied that Baxter had wired around the seat safety switch, but he acknowledged that Baxter had installed wiring that needed to be repaired before the mower could be sold. The court granted the defense a directed verdict on gross negligence.
Baxter died of mechanical asphyxiation. The coroner testified that Baxter could have been pinned from 15 to 90 seconds before he stopped breathing. Baxter was survived by his wife. It was the second marriage for each. The widow sought $128,136 for past pecuniary loss, $355,274 for future pecuniary loss, $383,333 for past loss of companionship and society, $1,390,000 for future loss of companionship and society, $383,333 for past mental anguish, and $1.39 million for future mental anguish, a total of $4,030,076. The estate sought $250,000 for conscious pain and suffering.
The jury found no design defect and found Baxter negligent.
Jurors told counsel afterward that the jury was unanimous on the negligence issue.
6 male/ 6 female
This report is based on information that was provided by plaintiffs’ counsel and defense counsel.
Joe Heard received a take-nothing verdict following a 4½ week jury trial in Calhoun County, Texas. The case involved allegations of negligence and gross negligence claims arising from an explosion at a Formosa Plant on October 6, 2005. Over 500 Plaintiffs filed suit against Heard & Medack’s clients, HP Services, LP (“HP”) and Fernando Rivera (“Rivera”) as well as other Defendants.
Seven Plaintiffs’ cases were tried first. All but two of those Plaintiffs were working inside the plant at the time of the incident. The remaining two were outside the plant in the parking lot. On the day of the incident, the Plaintiffs allege that Heard & Medack’s client, Rivera, a forklift driver employed by HP, negligently struck a valve while towing a trailer causing the release of liquid propylene. The valve was connected to a liquid propylene storage system designed by Co-Defendant KBR. The propylene, released in the form of a vapor cloud, ignited causing a fire within the plant. The Plaintiffs claimed they were injured while escaping from the fire.
The Plaintiffs alleged that the Defendants were negligent for various reasons and their negligence caused the fire. Specifically, Plaintiffs claimed HP failed to properly train Rivera and negligently allowed him to tow a trailer with a forklift. Heard & Medack, P.C. defended its clients on the basis that the forklift driver was properly trained and was not an employee of HP Services, at the time of the incident, but rather a borrowed servant of Co-Defendant US Contractors. US Contractors, of course, denied Rivera was its borrowed-employee.
All of the Plaintiffs claimed they were injured while evacuating the plant during the fire and multiple explosions. The Plaintiffs’ injuries ranged from soft tissue injuries to herniated discs needing surgery to post traumatic stress disorder. The Plaintiffs’ medical bills ranged from approximately $7,500 to $125,000. In addition to past medical expenses, the Plaintiffs sought an unspecified amount for past pain and suffering, future medical expense and lost income.
At the close of evidence, Plaintiffs asked the jury to award damages exceeding $3 million. After approximately 5½ hours of deliberation, the jury returned a verdict finding no negligence on the part of Heard & Medack’s clients HP Services and Rivera or any of the other Defendants.
Joseph Heard and Mary L. Graham successfully defended Appellee Avi Ron in a 2009 appeal to the First Court of Appeals of Houston, Harris County, Texas, in Cause No. 01-08-00645-CV, Bradley A. Jacobson v. Avi Ron and Delaney Construction Company. The appeal sought to expand the “rescue doctrine” in Texas from the rescue of people to the rescue of property. The “rescue doctrine” imposes liability for a rescuer’s injuries when a defendant negligently creates a situation that necessitates a rescue effort, and the rescuer’s subsequent injuries are reasonably foreseeable as a natural and probable result of such negligence. In some states, the “rescue doctrine” applies to both the rescue of people and property, but the doctrine has only been applied to the rescue of people in Texas.
Appellant Bradley Jacobson(plaintiff below) was beneficiary to a trust that sold land and a vacant building to Ron. Ron began demolishing the vacant building while a portion of his note to the trust remained outstanding. Jacobson was allegedly injured during the demolition when he tried to “rescue” the building from destruction. The trial court granted summary judgment in favor of Ron. The First Court of Appeals declined to extend the “rescue doctrine” to buildings and affirmed the summary judgment. The Court of Appeals also rejected Jacobson’s motion for en banc reconsideration, and the Texas Supreme Court denied his petition for review.
Joseph Heard and Mary L. Graham obtained dismissal of a case in 2009, on behalf of George Wilson, which was governed by the Residential Construction Liability Act and the Texas Residential Construction Commission Act and its dispute resolution process, in Cause No. 2005-76759, Stacey E. Troy v. WKL Lumber, Inc. and George Wilson, Individually, in the 11th Judicial District Court of Harris County, Texas.
The Plaintiff/homeowner contracted with Defendant/contractor George Wilson to build an addition onto their home. Unhappy about the construction, the homeowner initiated the State-Sponsored Inspection and Dispute Resolution Process by submitting a request for a third-party inspection to the Texas Residential Construction Commission. A third-party inspector’s report found 7 items “out of compliance.” Citing the alleged construction defects, the homeowner sued Wilson for breach of contract and breach of express warranties.
The case was dismissed because the homeowner failed to comply with the statutory requirements (1) to give the contractor a minimum 30-day written notice of alleged defects before requesting a state inspection and (2) to send a copy of her application for state inspection and accompanying evidence to the contractor.
David Medack received a take-nothing verdict and prevailed on a counter-claim following a three day jury trial in Fort Bend County, Texas. The case involved an August 17, 2004 multi-car collision in which Mr. Medack’s client was operating a street sweeper.
At the time of the incident, Mr. Medack’s client was operating a street sweeper pursuant to a contract with the City of Sugar Land, Texas. The street sweeper was traveling between eight and twelve miles per hour. The street sweeper was properly equipped with flashing lights, an arrow bar and beacons, but two witnesses at trial testified that the cloud of dust around the street sweeper was so thick that it obscured their ability to see the sweeper.
Two cases brought by two individual plaintiffs were consolidated into the case at issue. Ameen Velani’s vehicle was the car that initially made impact with the rear of the street sweeper. Mr. Velani’s vehicle was traveling at 45 miles per hour and struck the street sweeper with sufficient force to push the right wheels of the sweeper up and over the curb on the right side of the road. Following that impact, Melanie Frederick came into contact with Mr. Velani’s vehicle. Mr. Velani subsequently filed suit against the street sweeper company, its driver, and Mrs. Frederick. Mrs. Frederick also filed suit against the street sweeper company, its driver, and Mr. Velani. Mr. Medack’s client filed a counter-claim against Mr. Velani for approximately $11,600 in damages to the street sweeper.
Officer Gerald Coleman of the Sugar Land Police Department conducted the investigation at the scene of the incident. His report concluded that the incident was caused due to the sole negligence of Ameen Velani. Nevertheless, following a three day trial, the jury found that Mr. Velani and Ms. Frederick were each 50% negligent in causing the accident. At the close of the Plaintiffs’ case, the Court granted a directed verdict in favor of the driver of the street sweeper. The jury found that the street sweeping company was not negligent in causing the accident. Additionally, the jury found in favor of the street sweeper company and awarded $11,629.97 for damages to the street sweeper. On March 27, 2009, a Final Judgment was entered in favor of Mr. Medack’s client and it was awarded the full amount of its damages against Mr. Velani.
David Medack received a take-nothing verdict following a five (5) day jury trial in Harris County, Texas. The case involved the electrocution death of Bradley Clark on September 9, 2003. Lucy Hancock, the common-law wife of Mr. Clark, filed the wrongful death case and also brought a survival claim on behalf of the decedent’s estate.
Based on the autopsy report prepared by the office of the Harris County Medical Examiner, Mr. Clark was electrocuted while crawling under a manufactured home for the purpose of installing a cable for a satellite television service. At trial, the plaintiff alleged that the manufactured home was improperly installed by the Developer and that and that the installation of the air conditioning system also played a role in energizing the chassis of the home. The plaintiff sued the Developer, the contractor that “set-up” the home and the HVAC contractor. The HVAC contractor was Mr. Medack’s client.
In the three (3) month period between when the homeowner moved into the house and the date of the accident, the homeowner testified that he would frequently receive electrical shocks or “tingling.” He felt this tingling from electrical and non-electrical sources. He complained to the Developer about the problem, but no repairs were ever made.
The evidence showed that the ground cable from the electrical service panel in the backyard of the home was not properly connected to the circuit breaker distribution panel in the home. The ground wire was connected to the neutral bus within the distribution panel and this ground wire configuration was shown to be in violation of the National Electric Code. The Developer could not identify the person or company that actually installed the electrical service at the home.
The evidence also showed that the HVAC contractor did not properly ground the home’s a/c condenser at the HVAC electrical disconnect. The plaintiff further alleged that the HVAC contractor did not properly install the condensate drain line under the home and that the failure to do so caused water to collect under the home. The alleged presence of water under the home increased the ability of stray electrical current to result in the fatality.
At the close of evidence, the plaintiff asked the jury to award damages of $2,000,000. After 2 ½ hours of deliberations, the jury returned a verdict finding no negligence on the part of Mr. Medack’s client, the HVAC contractor. The “set up” contractor was also found not negligent. The jury found that the Developer was 100% negligent and awarded damages of $510,000.
Joseph M. Heard received a take-nothing verdict following a three (3) day jury trial in Brazoria County, Texas. Plaintiff, Monte Sams sued two defendants for negligence allegedly arising out of a dirt bike accident. Plaintiff was a resident of a mobile home located on property on Chocolate Bayou Road in Brazoria County, Texas. The landowner, Sam Rossi, who was a Defendant in the case until he settled on the second day of trial, leased parts of his land, and in some cases the trailers themselves, to several people who all lived on the property. Mr. Heard and Mrs. Brinson’s client was Ascuncion Esparza, a friend of the landlord who owned a business that hauled away construction material from building sites. At the Mr. Rossi’s request, Mr. Esparza dumped bricks in a pile located on the property. Mr. Rossi would then use a front-end loader to compact the pile and used the bricks to fill in low-lying areas on the property.
On Easter Sunday 2002, Plaintiff invited family and friends to cook-out on the property. Plaintiff’s brother in law brought over his dirt bike and several of the men took turns riding it. Plaintiff, admittedly an inexperienced rider, lost control of the bike and fell off, breaking his leg. His injury left him unable to work or even take care of himself for more than a month and required surgery which left an extremely noticeable scar. He claimed to still have a permanent limp as a result of the accident.
The jury found that only the Plaintiff’s negligence caused the accident and found no negligence on the part of either Mr. Esparza or the settling landlord, Mr. Rossi.
Joseph M. Heard obtained a take-nothing verdict after a four day trial on behalf of Portofino Harbour Dockominiums in Cause No. 2003-68731; Gerard Brach v. Portofino Harbour Management Company and Portofino Harbour, Ltd.; In the 280th Judicial District Court of Harris County, Texas. This was a premises liability case in which the Plaintiff, the owner of a popular French restaurant and an avid sailing enthusiast, alleged that he fell while stepping on to stairs attached to the floating dock which led to his sailboat at Portofino Harbour. Plaintiff claimed he fell on the wet and slippery stairs because Portofino failed to maintain the premises in a safe condition. Plaintiff claimed that the steps were dangerous because there was not proper lighting (a nearby light was not working), there was no slip resistant surfacing on the steps and the steps were missing a handrail. Plaintiff also contended that the various conditions were a violation of the building code and the Americans with Disabilities Act. As a result of his fall Plaintiff suffered a severe fracture of his left ankle which required surgery to correct. Plaintiff’s medical bills were approximately $15,000. Plaintiff also sought to recover an additional $60,000 because he had to sell his sailboat at a loss because he can no longer sail due to the severity of his injuries. At trial Plaintiff asked the jury to award him $475,000 in damages for his medical bills (past and future), pain, suffering and for his mental anguish over loosing his life long dream of sailing around the world in his sailboat. The jury, however, found that no one was negligent and awarded Mr. Brach no damages.
David Medack received a defense verdict following a five (5) day jury trial in Brazoria County, Texas. The case involved a pre-dawn collision between a pick-up truck being driven by the plaintiff and a large piece of earth moving equipment being towed by the defendants. The plaintiff alleged that the oversized tractor and the 14.5 cubic yard capacity scraper being towed were too large to be operating on a public roadway. The plaintiff further alleged that (1) the size and weight of the equipment required it to be permitted for transport (which it was not) (2) that it also was required to be escorted by another vehicle (which was not being done at the time of the accident) and (3) that the lights on the tractor were illegal for street use and blinded the plaintiff as she approached the equipment from behind. In the accident, the plaintiffs’ vehicle impacted the rear of the scraper. Her truck rolled over at least one time and came to rest upside down in a road side bar ditch. The plaintiff was extracted from the truck using the “Jaws of Life” and was then transported by helicopter to Houston for emergency care.
The defendants contended that the tractor/scraper was adequately illuminated and that the absence of an escort vehicle did not cause the accident. The defendants also argued that the tractor/scraper was off of the main lane of travel at the point of impact. The investigating Texas State Trooper cited the plaintiff for “failure to control speed” and opined that that was the sole factor contributing to the cause of the accident. The defendants were not cited for any traffic violations. In his report, the Trooper concluded that the accident occurred because the plaintiff left the main lane of travel; however, an evidentiary ruling during trial precluded the jury from hearing the Trooper’s opinion as to the likely location of the point of impact.
The plaintiff alleged past medical expenses of approximately $50,000, lost wages of $38,000 and future medical expenses of approximately $150,000. The plaintiff’s attorney asked the jury to award damages of between $952,000 and $1,000,000.
The defendants’ pre-trial settlement offer of $100,000 was rejected by the plaintiff and her husband.
After five hours of deliberations, the jury returned a unanimous verdict and found the driver of the earth moving equipment not negligent. The jury placed 55% of the negligence on the owner of the equipment and 45% of the negligence on the plaintiff. The total jury award of $142,000 was then reduced by the plaintiff’s 45% comparative negligence. With prejudgment interest, the plaintiffs’ final recovery was roughly 18,500 less than the Defendants’ pre-trial settlement offer.
David Medack received a take-nothing verdict following a three day trial in Montgomery County, Texas. The case involved a trip and fall accident in a parking lot that was being resurfaced and re-striped. The firm’s client had used a tightly drawn string line to create a straight edge for its work area. The straight edge was then used in the application of a black liquid resurfacing material called “seal coat.” The plaintiff alleged that the seal coat on the parking lot and on the string line obscured her ability to see the string. She tripped on the string and sustained a slight sprain to her right ankle and a string burn to the back of her left calf. In the months that followed, she continued to have medical complaints and ultimately underwent arthroscopic surgery to her left knee and a laminectomy, with fusion, to her lower back. Her two orthopedic surgeons testified that both surgeries were attributable to the fall in the parking lot. Total medical expenses for the plaintiff exceeded $140,000. With medical expenses and other alleged damages, the plaintiff’s attorney sought a recovery in excess of $620,000. Following three hours of deliberations, the jury returned a 10-2 verdict and assigned 90% of the negligence to the plaintiff. The firm’s client was only found 10% negligent. The damage question was predicated and therefore not answered by the jury.
Joseph Heard received a take-nothing verdict following a three day residential mold case in Orange County, Texas. Although the case was originally filed as a wrongful death action, Mr. Heard successfully disposed of the wrongful death claim by summary judgment. The Plaintiffs continued to prosecute claims for property damage and alleged mental anguish. Through additional dispositive filings, the firm successfully disposed of the mental anguish claims and the case was ultimately tried on a property damage theory. During the three day trial, both sides made extensive use of experts on mold contamination, remediation and the effect of same on property valuation. At the conclusion of the evidence, the jury returned a unanimous verdict of no liability.
Joseph Heard received a take-nothing judgment in a case involving a Class-B assisted living facility. Mr. Heard represented the client’s facility. The case involved a resident who was attacked by fire ants. An attendant in the home mistakenly put the resident to bed in the wrong room on a mattress on the floor. During the night, the resident was found covered with fire ants and was treated by the attendant at the scene. When a Vitas hospice care nurse arrived to check on him the next morning, she made arrangements for him to be transferred to the Vitas facility at Diagnostic Hospital. The resident died six days later.
Plaintiffs sued the facility who then filed a Third-Party action against Terminix, with whom the facility had a pest control contract. During discovery, Mr. Heard learned that the resident had received no food and no appreciable hydration following his transfer to the Vitas facility. It was further determined that the resident may not have been a proper candidate for hospice care in the first place. Following these developments, the Plaintiffs (the Estate of Mr. Tenczynski and his surviving wife and children) brought claims against Vitas. Vitas ultimately settled with the Plaintiffs for $3.5 million.
Plaintiffs then amended their pleadings against our client to only assert claims for pain and suffering during the time Mr. Tenczynski was still at the facility. This was done in an attempt to deny our client a settlement credit for the $3.5 million dollar Vitas settlement. Mr. Heard was successful in his argument to the Judge that the settlement credit should apply. The case went to trial and Terminix settled with the Plaintiff for $125,000.00. The jury awarded the Estate $1.5 million, but found the facility only 44% responsible, assigning 44% of the remaining fault to Terminix and 12% to Vitas. The jury found no malice or gross negligence as to our client. Due to the application of the settlement credit well in excess of the damages found by the jury, a take-nothing judgment was entered.
David Medack received a favorable verdict in Cause 2002-09524; Roy Lee Moores v. Shark Trucking, Inc., Gary Hoffman and Kristi Hoffman; In the 234th Judicial District Court of Harris County, Texas. This case involved allegations of malicious prosecution followed by the arrest and incarceration of the Plaintiff. The Plaintiff had been a truck driver for Shark Trucking, Inc. for just over a year at which time he refused a forced dispatch assignment. The truck and trailer the Plaintiff was using belonged to Shark Trucking, Inc. Upon returning to Houston, he was subsequently fired. Defendants allege that some point over the July 4th weekend, the truck and trailer were removed from the Shark Trucking yard. Shark Trucking ultimately made a stolen vehicle report to the sheriff’s department indicating that the truck was stolen from the yard. During subsequent telephone conversations, the Plaintiff told Shark Trucking that he knew where the truck was located; however, he would not say where unless he received a $1,000.00 payment.
Based upon the report by Shark Trucking, Inc. a warrant was issued for the Plaintiff’s arrest and he was ultimately picked up during a traffic violation on December 22, 2000. He was place in jail where he remained until May 9, 2001. An investigator for his court appointed criminal attorney was able to tape record a conversation with representatives of Shark Trucking indicating that although they thought the truck was stolen, it was not stolen off the lot, as alleged in the report made to the sheriff’s department. Based upon this recording, the charges against the Plaintiff were dismissed and he was released from jail.
Plaintiff sought damages in the amount of $11,000.00 for lost wages for the time he had been in jail plus $500,000.00 for mental anguish for the alleged false imprisonment. Due to the allegation of malicious criminal prosecution, Defendants were permitted to introduce evidence of the Plaintiff’s past criminal record because it was relevant to his mental anguish claim. The evidence showed that prior to this incident, the Plaintiff had been arrested on fifteen (15) different occasions and had served seven (7) years in the state penitentiary. Since his arrest on the incident made the basis of this suit, he was also arrested two (2) more times.
Prior to the verdict, the Plaintiff’s settlement demand was $300,000.00. The Defendants final offer was for $10,000.00. The jury ultimately returned a verdict for $20,250.00, ($10,250.00 was for lost wages and $10,000.00 was for past mental anguish).
Joseph Heard received a defense verdict in Cause 00-08-04803-CV; Martha Diane Turner and Thomas Turner v. Diversified Components, Inc., et al.; in the District Court of Montgomery County, Texas; 9th Judicial District Court. This case involved a slip and fall accident at a marina in which Mrs. Turner walked off a bandstand. The step in question would not have passed local building codes. Turner underwent three (3) surgeries to repair the fractures and incurred over $40,000.00 in medical expenses. The jury assessed 50% of the responsibility of the accident on Turner and awarded only $10,000.00 in damages. Plaintiff’s demand before and during trial was in excess of $100,000.00. During trial, Plaintiffs’ counsel was offered $50,000.00 (at the judge’s recommendation) and the offer was rejected.
Joseph Heard obtained a take-nothing verdict after a four day trial on behalf of Allied Brick Company and Carl E. Risinger in Cause No. 2000-14227; Agripino Martinez v. Allied Brick Co., and Carl E. Risinger, Individually and Gateway Homes, Inc. in the 133rd Judicial District Court of Harris County, Texas. This case involved an accident which occurred on November 16, 1999. Agripino Martinez, a brick mason, was working on a scaffold approximately twenty two (22) feet above the ground which was owned by Allied Brick. The board Mr. Martinez was standing on broke, causing him to fall to the ground. Mr. Martinez suffered fractures of his vertebrae and was hospitalized for a significant period of time. Plaintiffs alleged that Allied Brick Company and Carl E. Risinger owned the scaffolding in question, and were responsible for insuring that the board in question was safe. Martinez further alleged that the board actually placed on the scaffolding by Defendants was of inferior quality and should not have been used. The jury, however, agreed with the defense theory that Mr. Martinez knew or should have know that the board was defective but chose to use it anyway. As a result of his fall, Mr. Martinez sustained a burst fracture at L2 and underwent an open reduction surgery with a fusion at L1 through L3. His medical expenses totaled approximately $80,000.00. Mr. Martinez also sought $18,000.00 in past lost wages, Plaintiff’s counsel asked the jury to award over $500,000.00 to Mr. Martinez. However, the jury apportioned 75% of negligence to the Plaintiff. Thus, Plaintiff was denied any recovery whatsoever. Plaintiffs demand at mediation was $210,000.00. Prior to trial, Allied Brick offered $30,000.00 to settle the case. As a result of the jury’s verdict, Plaintiff recovered nothing.
David Medack was able to successfully set aside a $120,000 default judgment in the matter of Chad Mills v. Corvettes of Houston, Inc.; Cause No. 1999-46252 in the 113th Judicial District Court of Harris County, Texas. This default judgment case involved the sale of a classic Corvette. After the default judgment was set aside, Chad Mills appealed the trial court’s ruling to the 14th Court of Appeals in Cause No. 14-00-00581-CV. The Firm was again successful in defending the appeal, which was ultimately dismissed.
Joseph Heard received a take-nothing verdict in Cause No. 651496; Jeffrey Ivey v. Taqueria Arandas #5 and Javier Camerena; In the County Civil Court at Law Number Four (4) of Harris County, Texas. This was a food contamination case where the Plaintiff allegedly bit in a taco that contained a piece of glass. Despite the strict liability standard, Mr. Heard was able to get a complete defense verdict.
Joseph Heard received a take-nothing verdict in C. A. No. G-98-390; James DeLean and Margaret DeLean, Individually and On Behalf of Blair DeLean, A Minor v. Chevron U.S.A., Inc., Chevron Stations, Inc., Butts & Co., and S.S. Omega, Inc.; In the United States District Court for the Southern District of Texas; Galveston Division. Plaintiffs alleged that an eight-year-old child received a splinter in his foot at a gas station that was undergoing renovations. Plaintiffs alleged the boy sustained an extremely rare infection that required approximately four months of medical treatment. Plaintiffs were alleging extensive medical injuries. The jury found the Defendant not negligent and no damages were awarded.
David Medack received a take-nothing verdict in Cause No. 1997-30596; Alejandra Valdivia et al. v. Ron Voreh d/b/a Property Services, et al. in the 333rd Judicial District Court of Harris County, Texas. This case involved the alleged wrongful death of Isaias Valdivia following his contact with a high voltage overhead power line at a Property Services’ job site. The Plaintiffs were suing for wrongful death and were alleging negligence and violations of the Texas Powerline Statute. Property Services was found not negligent by the jury.
Joseph Heard also received a favorable jury verdict in a case of clear liability. This was a property damage case in which a large, high-pressure storage vessel owned by the Defendant ruptured and was propelled across the Plaintiff’s commercial premises, destroying property along the way. The Plaintiff was seeking $600,000 and the pre-trial offer was $185,000. Ultimately, the jury only awarded $155,000. Cause No. 1999-38301; Centrifuge repair & Engineering, Inc. v. Alliance Recovery Services, Inc., Cylinder Testing, Inc. and Refrigerants Wholesale, Inc.; In the District Court of Harris County, Texas; 234th Judicial District.
David Medack and Joseph Heard received a take-nothing verdict in Cause No. 92-36622 Petra Lozano et al. v. Lubkeman Construction, Inc. et al. in the 165th Judicial District Court of Harris County, Texas. This case involved the alleged wrongful death of Juan Lozano while he was attempting to move a fully extended aluminum ladder. His ladder cam into contact with a high voltage overhead power line adjacent to the work site. The Plaintiffs were suing for wrongful death and were alleging negligence and and negligence per se for violations of the Texas Power line Statute. After deliberating for 7 hours, the jury found that Lubkeman Construction, Inc. was 20 % negligent, but Juan Lozano was 80% negligent. Accordingly, the Court entered a Take-Nothing Verdict in favor of Lubkeman Construction, Inc.