DALLAS - A Texas federal judge on Aug. 10 dismissed with prejudice breach of contract and breach of the duty of good faith and fair dealings claims filed against a dating website by a class of subscribers and moved sua sponte for the dismissal of the plaintiffs' claim under the Texas Deceptive Trade Practices Act (DTPA) (David Robinson, et al. v. Match.com, L.L.C., No. 10-2651, N.D. Texas; 2012 U.S. Dist. LEXIS 112742).
NEW ORLEANS - Citing questions of Texas law, the Fifth Circuit U.S. Court of Appeals on Aug. 8 withdrew its ruling that a commercial general liability insurer has no duty to defend an insured for allegations of faulty construction based upon a contractual liability exclusion and certified questions to the Texas Supreme Court (Ewing Construction Co. Inc. v. Amerisure Insurance Co., No. 11-40512, 5th Cir.; 2012 U.S. App. LEXIS 16493).
NEW ORLEANS - Despite finding that a Texas federal judge "possibly contradicted" himself in concluding that a copyright infringement plaintiff granted a defendant an oral license to use his photographs, the error was harmless, the Fifth Circuit U.S. Court of Appeals ruled Aug. 8 (Dell Cullum v. Diamond A. Hunting Inc., No. 11-50044, 5th Cir.).
DALLAS - Alleged property damage caused by an insured's faulty work occurred during the commercial general liability insurance policy periods, a Texas appeals panel affirmed Aug. 6, finding that the insurer had a duty to defend (Great American Lloyds Insurance Co. v. Audubon Insurance Co., No. 05-11-00021-CV, Texas App., 5th Dist.; 2012 Tex. App. LEXIS 6459).
SAN ANTONIO - A Texas appeals court on Aug. 8 affirmed a county court's decision to award the owner of a townhome damages for flooding and mold that were caused by a defect in her neighbor's roof, finding that the trial court did not err in not granting a continuance of a scheduled trial and that the evidence showed that the damaged roof was the proximate cause of the flooding (Gloria H. Marin v. Dolores Herron, No. 04-11-00352-CV, Texas App., 4th Dist.; 2012 Tex. App. LEXIS 6484).
The federal government on Aug. 6 filed 11 motions to dismiss in federal courts across the county, seeking to dismiss cases brought by religious groups that allege that the Patient Protection and Affordable Care Act (PPACA), 111 P.L. 148 mandate requiring all health plans to provide preventive services for free, including those for birth control, violates their religious rights, saying the plaintiffs lack standing (Diocese of Forth Wayne-South Bend Inc., et al. v. Kathleen Sebelius, et al., No. 12-159, N.D. Ind.; University of Notre Dame v. Kathleen Sebelius, et al., No. 12-253, N.D. Ind.; R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, et al. v. Kathleen Sebelius, No. 12-3932, N.D. Ill.; The Catholic Diocese of Biloxi, Inc. v. Kathleen Sebelius, et al., No. 12-158, S.D. Miss.; Archdiocese of St. Louis, et al. v. Kathleen Sebelius, No. 12-924, E.D. Mo.; The Roman Catholic Archdiocese of New York, et al. v. Kathleen Sebelius, No. 12-2542, E.D. N.Y.; Franciscan University of Steubenville, et al. v. Kathleen Sebelius, No. 12-440, S.D. Ohio; Most Reverend David A. Zubik, et al. v. Kathleen Sebelius, No. 12-676, W.D. Pa.; Most Reverend Donald W. Trautman, et al. v. Kathleen Sebelius, No. 12-123, W.D. Pa.; Most Reverend David A. Zubik, et al. v. Kathleen Sebelius, No. 12-676, W.D. Pa.; The Roman Catholic Diocese of Dallas v. Kathleen Sebelius, No. 12-1589, N.D. Texas; Roman Catholic Diocese of Fort Worth v. Kathleen Sebelius, No. 12-314, N.D. Texas).
HOUSTON - A Texas federal judge on Aug. 1 denied a company's request for additional attorney fees it incurred for work that allegedly was required by the unjustified refusal of an entity to abide by an arbitration award issued by the American Arbitration Association (AAA), finding that the time spent in relation to confirmation of the award was spent on at least one issue that was not frivolous (Tricon Energy Ltd. v. Vinmar International Ltd., No. 4:10-cv-05260, S.D. Texas; 2012 U.S. Dist. LEXIS 107563).
SAN ANTONIO - A Texas Court of Appeals panel on Aug. 1 overturned a trial court decision to deny a motion to dismiss wrongful death claims brought against a medical center, ruling that the plaintiffs failed to file a required expert report (Fort Duncan Medical Center v. Edwin Martin, et al., No. 04-11-00897-CV, Texas App., 4th Dist.; 2012 Tex. App. LEXIS 6300).
HOUSTON - A retirement system has failed to plead fraud on the minority under English or Bermudian law, a federal judge in Texas ruled July 30 in granting the defendants' motion to dismiss with prejudice (Erie County Employees Retirement System, et al., v. Eugene M. Isenberg, et al., No. 11-4052, S.D. Texas, Houston Div.).
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on July 31 vacated a portion of a Texas federal district court's decision that required parties to arbitrate a dispute over contracts related to offshore oil drilling before five arbitrators, remanding the case so that the district court can enter an order appointing three arbitrators, which was required by the agreement between parties (BP Exploration Libya Limited v. ExxonMobil Libya Limited, et al., No. 11-20547, 5th Cir.; 2012 U.S. App. LEXIS 15706).
DALLAS - In ruling on a motion to dismiss in a reimbursement dispute between a health care provider and a health insurer, a Texas federal judge on July 25 held that the plaintiff had standing based on assignments of benefits to bring claims to recover medical benefits but not to assert violations of the Employee Retirement Income Security Act, 29 U.S.C.S. § 1001 et seq. (Encompass Office Solutions Inc. v. Connecticut General Life Insurance Co., et al., No. 11-2487, N.D. Texas; 2012 U.S. Dist. LEXIS 103479).
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on July 27 affirmed an award of summary judgment to U.S. Bank N.A. in a Texas woman's foreclosure action after finding that a federal judge did not err in ruling that there were no irregularities in the appointment of a substitute trustee that violated the Texas Deceptive Trade Practices-Consumer Protection Act or Debt Collection Act (Carol Melia Copeland v. U.S. Bank National Association, No. 11-51206, 5th Cir.).Subscribers may view the opinion available within the full Mealey's article.
AUSTIN, Texas - Erroneous exclusion of an eyewitness identification expert in a double-murder trial was harmless, a 14th District Texas Court of Appeals panel held July 24 on remand (Larry Joseph Tillman Jr. v. The State of Texas, No. 14-08-00846-CR, Texas App., 14th Dist.; 2012 Tex. App. LEXIS 5935).
ST. LOUIS - In a 2-1 ruling July 26, the Eighth Circuit U.S. Court of Appeals reversed summary judgment in two Prempro bellwether cases that involve the risk of *** cancer in women who took the hormone replacement therapy drug for less than three years (Pamela Kuhn v. Wyeth, Inc., et al., No. 11-1809, Shirley Davidson v. Wyeth, et al., No. 11-1815, 8th Cir.)
Pamela Kuhn took Prempro for three years and 28 days, and Shirley Davidson took it for one years and nine months. Kuhn argued that she took the drug for more than three years, but defendant Wyeth (now Pfizer Inc.) argued that she took it for less than three years.
Both plaintiffs developed *** cancer and filed separate lawsuits against Wyeth in the U.S. District Court for the Western District of Arkansas, where the Prempro multidistrict litigation is located, alleging that the drug increased the risk of *** cancer and that Wyeth failed to adequately warn of the risk.
Kuhn's and Davidson's cases were selected as bellwether cases on the issue of *** cancer caused by short-term use of Prempro. The plaintiffs named David F. Austin, M.D., an epidemiologist, as their expert on the issue of causation by short-term use of Prempro.
Joint Daubert Hearing
While Kuhn's and Davidson's cases were pending in the MDL, Wyeth was facing a trial in the District of Puerto Rico in a Prempro case that also involved short-term use. Since Wyeth planned to challenge the expert testimony in the Puerto Rico case, it suggested that the MDL court conduct a joint Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 ) hearing.
Wyeth argued that there is no reliable scientific basis for plaintiff experts to conclude that taking Prempro for less than three years increased the risk of *** cancer. It added that the Women's Health Initiative (WHI), which found a link between Prempro and *** cancer, did not show that fewer than three years' use increased the risk and that studies that plaintiff experts relied on were methodologically flawed.
The plaintiffs argued that Prempro is a growth-promoting agent that causes cancer-susceptible cells to become cancerous, even with short-term use.
Magistrate Judge Joe J. Volpe granted Wyeth's motion to exclude Austin's testimony, finding that it was not sufficiently reliable to meet the admissibility standard of Daubert. The District Court adopted the recommendation and granted summary judgment.
Kuhn and Davidson appealed, arguing that the magistrate judge abused his discretion by precluding Austin's testimony and recommending summary judgment.
Magistrate Abused Discretion
In a 2-1 ruling the Eighth Circuit panel majority noted that the magistrate judge did not address Austin's testimony that women who took Prempro had lower recorded rates of *** cancer in the first two years, not three years. It said that although Austin distinguished between annual incidents of *** cancer and cumulative incidents, the magistrate judge addressed only the testimony about cumulative incidents.
"We conclude that the magistrate judge abused his discretion in deciding that Dr. Austin's criticisms of the WHI study were unfounded and inconsistent with his reliance on the study in other hormone therapy cases," the majority said. Citing Austin's testimony, the majority said, "In light of this testimony and its supporting evidence, Dr. Austin's reliance on the WHI study to prove general causation does not foreclose his opinion that the study did not accurately assess the risk of *** cancer associated with the short-term use of Prempro."
While Wyeth/Pfizer can challenge Austin's credibility based on his previous testimony, the majority said, "his previous reliance on and testimony regarding the WHI study does not render his opinion inadmissible, as it was not his burden to disprove the WHI's finding that short-term use of Prempro does not increase the risk of *** cancer."
Credibility, Not Admissibility
The majority said the magistrate judge erred in factoring in the haste in which Austin's opinion was written and the involvement of plaintiffs' counsel. It said those issues go to the credibility of Austin, not the admissibility of his opinion.
Austin's reliance on epidemiological studies compiled by plaintiffs' counsel and supporting observational studies "provide adequate foundation for Dr. Austin's testimony," the majority said.
"Dr. Austin's testimony is admissible because the studies upon which he relied were sufficient to support his opinion that short-term use of Prempro increases the risk of *** cancer," the majority said. It said the observational studies "constitute appropriate validation of and good grounds for Dr. Austin's opinion. The studies' limitations may be presented to the jury, and Dr. Austin's reliance on the studies may be tested through the traditional means of cross examination and presentation of contrary evidence."
Wyeth/Pfizer also argued that Austin cherry-picked information from the observational studies. The majority rejected that: "There may be several studies supporting Wyeth's contrary position, but it is not the province of the court to choose between the competing theories when both are supported by reliable scientific evidence."
Because Austin's opinion is admissible, the majority reversed summary judgment. Also, the majority said it did not need to address Kuhn's argument that she used Prempro for more than three years.
The cases were remanded to the MDL court for further proceedings.
Circuit Judge Roger L. Wollman wrote the majority opinion. Joining him was Circuit Judge Raymond W. Gruender.
Circuit Judge James B. Loken dissented, saying the District Court's Daubert analysis was supported by the record and "properly focused on the gate-keeping function mandated by the Supreme Court and by [Federal] Rule [of Civil Procedure] 702."
Judge Loken said the majority applied an overly stringent review and failed to give the trial court's ruling deference.
Kuhn and Davidson are represented by Russell T. Abney, Ted G. Meadows and Navan J. Ward of Beasley Allen in Montgomery, Ala.; W. Gary Holt of Gary Holt & Associates in Little Rock, Ark.; Breean Walas of North Little Rock, Ark.; and Erik B. Walker of Hissey & Kientz in Austin, Texas.
Defense, Amicus Counsel
Wyeth/Pfizer is represented by Loren H. Brown and Christopher G. Campbell of DLA Piper in New York; Catherine M. Corless, Lyn Peoples Pruitt, Mary C. Way and Leigh A. Yeargan of Mitchell & Williams in Little Rock; David E. Dukes, Michael W. Hogue, John M. Jones of Nelson & Mullins in Columbia, S.C.; and F. Lane Heard III of Williams & Connolly in Washington, D.C.
Amicus Arkansas Trial Lawyers Association is represented by Brian G. Brooks of Greenbrier, Ark.
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TYLER, Texas - A Texas federal judge on July 19 denied a request for judgment as a matter of law (JMOL), rejecting claims by Eolas Technologies Inc. that a jury verdict of patent invalidity was unsupported by the evidence (Eolas Technologies Inc. and The Regents of the University of California v. Adobe Systems Inc. et al., No. 09-446, E.D. Texas). Subscribers may view the order available within the full article.
HOUSTON - Texas rules requiring asbestos plaintiffs to file expert diagnosing reports within 90 days or face dismissal impose an unfair burden on Federal Employers Liability Act (FELA) 45 U.S.C.S. § 51 et seq..claimants, a divided Texas appeals panel held July 19 (The Kansas City Southern Railway Co. v. Ronald K. Oney, et al., No. 14-11-815-CV, Texas App., 14th Dist.).
FORT WORTH, Texas - A Texas Court of Appeals panel on July 19 affirmed summary judgment for the defendant in a personal injury action involving a woman who fell in a parking garage, concluding that the trial court properly determined that the defendant did not have exclusive control of the leased property (Patricia Palmer v. Performing Arts Fort Worth Inc., No. 02-11-00434-CV, Texas App., 2nd Dist.; 2012 Tex. App. LEXIS 5829).
HOUSTON - A Texas Court of Appeals panel on July 19 upheld a take-nothing verdict in an automobile accident action involving a police officer who claims that he was injured while escorting an oversized load, concluding that the evidence is legally sufficient to support the jury's finding of no liability on the part of the defendant (Charles Crum v. Ronny Bynum Goza, No. 14-11-00256-CV, Texas App., 14th Dist.; 2012 Tex. App. LEXIS 5807).
DALLAS - A federal judge in Texas on July 11 granted summary judgment in favor of a bank alleged to have violated the Electronic Fund Transfer Act (EFTA) by not posting an ATM fee notice because the photographs of the ATM without a notice submitted by the plaintiff are undated and do not describe the location or identity of the operator of the ATM ((Frank Bonarrigo v. Prosperity Bank, No. 11-03555, N.D. Texas; 2012 U.S. Dist. LEXIS 96653).
HOUSTON - The U.S. District Court for the Southern District of Texas judge presiding over the hexavalent chromium exposure personal injury lawsuit against Iraq war contractors on July 9 issued an order granting as a matter of law the defense motion to dismiss the single business enterprise claim; in a related order issued July 10, the judge granted the defendants summary judgment on the alter-ego and joint ventures claims (Mark McManaway, et al v. KBR Inc., et al., No. 10-1044, S.D. Texas). Subscribers may view the summary judgment order available within the full article.
DALLAS - A federal judge in Texas on July 3 partially lifted a stay in five class action lawsuits against two law firms and others accused of assisting convicted Ponzi scheme mastermind R. Allen Stanford in his fraud (Michael Gale, et al. v. Proskauer Rose LLP, et al., No. 12-1803; Consuelo Ibarra, et al. v. Proskauer Rose LLP, et al., No. 12-1805; Pam Reed, et al. v. Proskauer Rose LLP, et al., No. 12-1806; Miguel Green, et al. v. Proskauer Rose LLP, et al., No. 12-1808; Juan F. Martin, et al. v. Proskauer Rose LLP, et al., No. 12-1809, N.D. Texas). Subscribers may view the order available within the full article.
FORT WORTH, Texas - A Texas federal judge on June 28 dismissed bad faith and Texas Insurance Code (TIC) violations against an insurer, characterizing them as "dressed-up breach of contract allegation$(s$)" and, as such, duplicative of an existing breach of contract claim (E. Todd Tracy, et al. v. Chubb Lloyds Insurance Company of Texas, No. 4:12-cv-00042, N.D. Texas; 2012 U.S. Dist. LEXIS 89866).
AUSTIN, Texas - Underlying claims against an organ donation charity insured do not trigger an insurer's duty to defend under a medical professional and general liability insurance policy's "personal injury" and "property damage" provisions, the Texas Supreme Court ruled June 29, answering two certified questions in the negative in a coverage dispute over claims that the insured sold a decedent's organs, tissues and bones to a for-profit company (Evanston Insurance Company v. Legacy of Life Inc., No. 11-0519, Texas Sup.; 2012 Tex. LEXIS 569).
HOUSTON - Expert reports fail to meet the medical reporting requirements for asbestos claims; however, the requirement is unconstitutional as applied to a man who could not undergo such tests and who died prior to enactment of the law, a Texas appeals court held in granting rehearing June 28 (Union Carbide Corp. v. Daisy E. Synatzske and Grace Annette Webb, et al., No. 01-09-011410CV, Texas App., 1st Dist.; 2012 Tex. App. LEXIS 5187).
DALLAS - A Texas federal judge on June 27 denied a motion to remand a reimbursement dispute between health care providers and insurance companies, saying that federal law completely preempted one of the claims (Paragon Office Services, et al. v. Aetna Inc., et al., No. 11-1898, N.D. Texas; 2012 U.S. Dist. LEXIS 89044).