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Law School Case Brief

Elbaor v. Smith - 845 S.W.2d 240 (Tex. 1992)


A trial court must submit issues to jury if there is some evidence of contributory negligence.

The court does not favor partial settlements that promote rather than discourage further litigation. And it does not favor settlement arrangements that skew the trial process, mislead the jury, promote unethical collusion among nominal adversaries, and create the likelihood that a less culpable defendant will be hit with the full judgment. The bottom line is that public policy favoring fair trials outweighs public policy favoring partial settlements.

A settling defendant may not participate in a trial in which he or she retains a financial interest in plaintiff's lawsuit.


Carole Smith was seriously injured in a single-vehicle accident when the Corvette she was driving left the highway and collided with a tree. She received emergency treatment at the Dallas/Fort Worth Medical Center-Grand Prairie ("D/FW Medical Center") from Dr. Abraham Syrquin. Dr. Syrquin performed emergency surgery closing the ankle wound. she was transferred to the care of Dr. James Elbaor, an orthopedic surgeon, at Arlington Community Hospital ("ACH"). While Ms. Smith was at ACH, she was treated by a team of physicians including Dr. Elbaor, Dr. Joseph Stephens, a plastic surgeon, and Dr. Bienvenido Gatmaitan, an infectious disease specialist. Dr. Stephens performed two debridements of the ankle wound. Ms. Smith was transferred to the care of Dr. Wayne Burkhead at Baylor University Medical Center ("Baylor"). Ms. Smith received treatment from several orthopedic specialists over the next three years which ultimately led to the fusion of her ankle joint, leaving her permanently disabled.  Ms. Smith filed medical malpractice suit against against D/FW Medical Center, ACH, Drs. Syrquin, Elbaor, Stephens, and Gatmaitan. Sometime before trial, Ms. Smith entered into Mary Carter agreements with Dr. Syrquin, Dr. Stephens, and ACH. The Mary Carter agreements provided for payments to Ms. Smith of $ 350,000 from Dr. Syrquin, $ 75,000 from ACH, and $ 10 from Dr. Stephens. Under the terms of each agreement, the settling defendants were required to participate in the trial of the case. The agreements also contained pay-back provisions whereby Dr. Syrquin and ACH would be reimbursed all or part of the settlement money paid to Ms. Smith out of the recovery against Dr. Elbaor. Dr. Elbaor filed a cross claim against Dr. Stephens, Dr. Gatmaitan. Dr. Syraquin, and ACH for contribution, in the event Elbaor was found liable to the plaintiff. The jury found that Ms. Smith's damages totaled $ 2,253,237.07, of which Dr. Elbaor was responsible for eighty-eight percent, and Dr. Syrquin for twelve percent. After deducting all credits for Dr. Syrquin's percentage of causation and settlements with other defendants, the trial court rendered judgment against Dr. Elbaor for $ 1,872,848.62. The Court of Appeals affirmed the decision of the trial court. The defendants appealed the case.


1. Was the trial court required to submit to the jury a requested issue concerning plaintiff’s contributory negligence?

2. Were the Mary Carter agreements void for being violative of public policy?

3. Were the settling defendants able to participate in trial in which he retained financial interest?


1. Yes. 2. Yes. 3. Yes.


Order affirming jury verdict in favor of plaintiff was reversed and remanded.

1. The Denial of submitting issue of Smith's contributory negligence to the jury was reversed, because evidence of negligence existed where Smith failed to follow physicians' orders. The foregoing discussion revealed that the record contained some evidence that Ms. Smith's ankle was not infected when she arrived at ACH. Further, the record indisputably indicated that Ms. Smith refused antibiotics, essential to the maintenance of her ankle's health, throughout her stay at ACH. Taken together, this evidence amounted at least to some evidence supporting Dr. Elbaor's assertion of Ms. Smith's contributory negligence. Accordingly, the trial court should have submitted it to the jury.

2. Mary Carter agreements were declared void prospectively as contrary to public policy. Mary Carter agreements not only allow plaintiffs to buy support for their case, they also motivate more culpable defendants to "make a 'good deal' and thus end up paying little or nothing in damages. Remedial measures cannot overcome nor sufficiently alleviate the malignant effects that Mary Carter agreements inflict upon our adversarial system. In fact, Mary Carter agreements may force attorneys into questionable ethical situations under Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct, which is titled "Maintaining the Impartiality of the Tribunal."

3. The Court held that a settling defendant could not participate in a trial in which he or she retained a financial interest in plaintiff's lawsuit. However, the Court observed that since Dr. Stephens did not have a financial interest in Ms. Smith's lawsuit, there was no impediment for him to participate fully in the re-trial of this case as any other party. ACH possessed a financial interest in Ms. Smith's lawsuit, but it can also participate in the re-trial of the case because the Court have severed the portion of the agreement creating ACH's financial stake in the outcome of the case from the remainder of the settlement. Likewise, Dr. Syrquin did have a financial interest in Ms. Smith's lawsuit and was required to participate in the trial.

The Court reversed and remanded the case.

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