LexisNexis® Legal Newsroom
Mealey's Litigation Procedure - 5th Circuit Affirms Defense Summary Judgment In Medical Negligence Case

NEW ORLEANS - A federal court in Texas did not abuse its discretion in excluding the testimony of the plaintiff's expert witness in a medical negligence case, a Fifth Circuit U.S. Court of Appeals panel found Oct. 19, affirming summary judgment for the defendants (Jewel Honey-Love, Individually and as a Representative of the Estate of Larry Lavon Love v. United States of America, et al., No. 16-20080, 5th Cir.; 2016 U.S. App. LEXIS 18829).

Mealey's Insurance - Texas High Court Denies Motion To Rehear Coverage Suit Arising From Hurricane Ike

AUSTIN, Texas - The Texas Supreme Court has refused to revisit a judgment in favor of an insured in a coverage dispute over damage caused by Hurricane Ike, according to its orders pronounced list issued Oct. 21 (National Lloyds Insurance Co. v. Latosha A. Lewis, No. 15-0261, Texas Sup.).

Mealey's Insurance - Texas Supreme Court Refuses To Revisit Ruling In Inverse Condemnation Dispute

AUSTIN, Texas - The Texas Supreme Court on Oct. 21 denied a motion to rehear its finding that homeowners in the upper White Oak Bayou watershed area of Texas have demonstrated that a fact question exists as to whether government entities were substantially certain that their actions in approving new upstream development without properly mitigating it would cause the homes to flood, according to its orders pronounced list (Harris County Flood Control District and Harris County, Texas v. Edward A. and Norma Kerr, et al., No. 13-0303, Texas Sup.).

Mealey's PI/Product Liability - 5th Circuit Affirms Defense Summary Judgment In Medical Negligence Case

NEW ORLEANS - A federal court in Texas did not abuse its discretion in excluding the testimony of the plaintiff's expert witness in a medical negligence case, a Fifth Circuit U.S. Court of Appeals panel found Oct. 19, affirming summary judgment for the defendants (Jewel Honey-Love, Individually and as a Representative of the Estate of Larry Lavon Love v. United States of America, et al., No. 16-20080, 5th Cir.; 2016 U.S. App. LEXIS 18829).

Mealey's IP/Tech - Judge Partially Bars Expert Opinion On Fitness Brand In Trademark Infringement Suit

HOUSTON - In a trademark infringement lawsuit, an expert may testify on branding in the fitness industry but is not allowed to discuss whether an alleged brand meets various legal definitions related to trademark law, a Texas federal judge ruled Oct. 18, also denying summary judgment to a fitness training company on its fair use defense (Michael Jones v. American Council on Exercise, No. 15-3270, S.D. Texas; 2016 U.S. Dist. LEXIS 143882).

Mealey's Litigation Procedure - Judge Allows Testimony On Leasing Logistics Of Rail Cars In Breach Of Contract Suit

HOUSTON - In a breach of contract lawsuit, an employee of a supply, trading and logistics company may testify as to the company's efforts "to lease, mobilize and manage the logistics of providing rail cars to a terminal," a Texas federal judge ruled Oct. 18, finding that the employee's experience and education qualify him as an expert (Musket Corp. v. Suncor Energy [U.S.A.] Marketing Inc., No. 15-100, S.D. Texas; 2016 U.S. Dist. LEXIS 143881).

Mealey's Litigation Procedure - Judge Partially Bars Expert Opinion On Fitness Brand In Trademark Infringement Suit

HOUSTON - In a trademark infringement lawsuit, an expert may testify on branding in the fitness industry but is not allowed to discuss whether an alleged brand meets various legal definitions related to trademark law, a Texas federal judge ruled Oct. 18, also denying summary judgment to a fitness training company on its fair use defense (Michael Jones v. American Council on Exercise, No. 15-3270, S.D. Texas; 2016 U.S. Dist. LEXIS 143882).

Mealey's PI/Product Liability - Appeals Court: Settlement With Contractor Does Not Bar Claims Against Plumber

AUSTIN, Texas - A Texas appellate court panel on Oct. 19 reversed in part a ruling awarding summary judgment to a plumbing subcontractor accused of improperly installing a propane line, ruling that a couple's settlement with the general contractor does not bar the plaintiffs' claims against the subcontractor (Steven C. Albright, et al. v. Rhea & Sons Enterprises Inc., d/b/a Rhea Plumbing, No. 03-15-00496-CV, Texas App., 3rd Dist.; 2016 Texas App. LEXIS 11296).

Mealey's PI/Product Liability - Football Player Claims Turf Was Improperly Laid, Causing Career-Ending Injury

HOUSTON - A former professional football player on Oct. 17 filed suit against the Houston Texans in Texas state court, alleging that he suffered a career-ending injury because the turf at the Texans' field was improperly laid (DeMeco Ryans v. Houston Texans, et al., No. 2016-70179, Texas Dist., Harris Co.).

Mealey's IP/Tech - Federal Circuit Says Marketing Of Generic Fortesta Would Infringe

WASHINGTON, D.C. - A bench trial held by a Texas federal judge correctly ended in findings that patents covering the testosterone gel Fortesta are not invalid as anticipated or obvious, as well as a ruling that the marketing of generic Fortesta would infringe the same patents, the Federal Circuit U.S. Court of Appeals ruled Oct. 14 (Endo Pharmaceuticals Inc., et al. v. Actavis Laboratories UT Inc., No. 16-1146, Fed. Cir.; 2016 U.S. App. LEXIS 18490).

Mealey's Insurance - Texas Federal Judge Says Plaintiff Insurers Lack Standing To Assert Claims

AUSTIN, Texas - A Texas federal judge on Oct. 13 dismissed claims alleging violations under the Texas Insurance Code against an excess insurer after determining that the plaintiff insurers do not have standing to assert the claims (Starnet Insurance Co., et al., v. Federal Insurance Co., No. 16-664, W.D. Texas; 2016 U.S. Dist. LEXIS 141782).

Mealey's Insurance - Excess Insurer Says Texas Federal Judge Incorrectly Applied Injury-In-Fact Theory

NEW ORLEANS - An excess insurer argues in an Oct. 12 brief filed in the Fifth Circuit U.S. Court of Appeals that a Texas federal judge incorrectly determined that excess policies are triggered by mere exposure to asbestos and said that evidence of actual injury caused by asbestos is necessary to trigger the excess policies (Longhorn Gasket and Supply Co., et al. v. U.S. Fire Insurance Co., No. 15-41625, 5th Cir.).

Mealey's Toxic Tort/Environmental - DOJ: 4 Companies To Pay $3.5M Over Clean Air Act Violations

WASHINGTON, D.C. - The U.S. Department of Justice (DOJ) announced on Oct. 11 that four companies have agreed to pay $3.5 million for criminal violations of the Clean Air Act as a result of releases of hazardous pollutants at two oil- and chemical-processing facilities in Texas.

Mealey's PI/Product Liability - Texas Appeals Panel Reverses Summary Ruling In Premises Liability Case

AUSTIN, Texas - A Texas appeals panel on Oct. 7 reversed a summary judgment ruling in a premises liability case in favor of a barbecue restaurant franchisor and remanded it to district court for further proceedings, saying that a restaurant knew, or should have known, about a slick floor that allegedly caused a patron's injuries (Gerald Kostecka v. Smokey Mo's Franchise LLC, No. 03-15-00295-cv, Texas App., 3rd Dist.; 2016 Tex. App. LEXIS 10980).

Mealey's PI/Product Liability - Texas Appeals Panel Affirms Summary Judgment In Car Crash Suit

HOUSTON - A Texas appellate panel on Oct. 4 ruled that a trial court correctly found that the statute of limitations had expired by the time the plaintiffs in a car crash suit served the lone defendant in the case (Juan Soto Perez, et al. v. Jared Efrud, No. 01-05-00963-CV, Texas App., 1st Dist.; 2016 Tex. App. LEXIS 10747).

Mealey's Insurance - Federal Judge Denies Insured's Motion To Remand In Bad Faith Suit

DALLAS - Remand of an insurance breach of contract and bad faith lawsuit is not proper because an insured has failed to show that an adjuster is liable for any of the claims against him, a federal judge in Texas ruled Oct. 4 (Ministerio Internacional Lirios del Valle v. State Farm Lloyds, et al., No. 16-1212, N.D. Texas; 2016 U.S. Dist. LEXIS 137453).

Mealey's Securities/D&O Liability - Judge: No Issue Exists Regarding Whether Insured's Diabetes Led To Amputation

SAN ANTONIO - An insurer did not breach its contract or act in bad faith in denying coverage under a term accidental death and dismemberment insurance policy because no genuine issue of material fact exists regarding whether an insured's diabetes contributed to an amputation after stepping on a nail, a federal judge in Texas ruled Oct. 3 (Randy Price v. Dearborn National Life Insurance Co., No. 15-0369, W.D. Texas; 2016 U.S. Dist. LEXIS 137289).

Mealey's PI/Product Liability - Judge Grants Petition To Perpetuate Testimony To Woman With Mesothelioma

DALLAS - A woman's petition for a deposition in advance of filing a lawsuit seeks only to preserve testimony, and her failed attempt to so in state court does not preclude the remedy, a federal judge in Texas held Sept. 29 (In re: Barbara Reed, No. 16-1964, S.D. Texas; 2016 U.S. Dist. LEXIS 135963).

Mealey's Toxic Tort/Environmental - Judge Grants Petition To Perpetuate Testimony To Woman With Mesothelioma

DALLAS - A woman's petition for a deposition in advance of filing a lawsuit seeks only to preserve testimony, and her failed attempt to so in state court does not preclude the remedy, a federal judge in Texas held Sept. 29 (In re: Barbara Reed, No. 16-1964, S.D. Texas; 2016 U.S. Dist. LEXIS 135963).

Mealey's IP/Tech - Judge Denies States' Bid To Enjoin Privatization Of Domain Name System Functions

GALVESTON, Texas - In a Sept. 30 minute order, a Texas federal judge denied an application for declaratory and injunctive relief by four U.S. states that sought to halt the transfer of the U.S. government's trusteeship of certain name and addressing functions for the Internet domain name system (DNS) under its contract with the Internet Corporation for Assigned Names and Numbers (ICANN) to a newly formed private entity (State of Arizona, et al. v. National Telecommunications and Information Administration, et al., No. 3:16-cv-00274, S.D. Texas).

Mealey's Insurance - Texas Federal Judge Says Question Of Fact Remains On Insured's Refusal To Settle

HOUSTON - Even though an insurer has shown that it was prejudiced as a matter of law by an insured's conduct in declining a settlement in an underlying lawsuit over a faulty flex connector, a question of fact exists as to whether the insured's refusal to settle was reasonable, a Texas federal judge said Sept. 29 in vacating a prior ruling on the issue (Mid-Continent Casualty Co. v. Petroleum Solutions, Inc., et al., No. 09-0422, S.D. Texas; 2016 U.S. Dist. LEXIS 133972).

Mealey's PI/Product Liability - 3rd Pinnacle Hip MDL Bellwether Trial Gets Under Way In Texas

DALLAS - The third bellwether trial in the DePuy Pinnacle hip multidistrict litigation got under way on Oct. 3 in the U.S. District Court for the Northern District of Texas (In Re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 2244, No. 11-md-2244, Rosa Metzler, et al. v. DePuy Orthopaedics, Inc., et al., No. 12-2066, Michael Weiser v. DePuy Orthopaedics, Inc., et al., No. 13-3631, Judith Rodriguez v. DePuy Orthopaedics, Inc., et al., No. 13-3938, Linda Standerfer v. DePuy Orthopaedics, Inc., et al., No. 14-1730, Kathleen Davis, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-1767, Marvin Andrews, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-3484, N.D. Texas, Dallas Div.).

Mealey's PI/Product Liability - Reducing Punitives In Pinnacle Hip MDL Trial Isn't Unconstitutional, Judge Says

DALLAS - A Texas federal judge on Oct. 3 denied a motion by five plaintiffs in a DePuy Pinnacle hip trial to find the Texas punitive damages cap unconstitutional and to reinstate their $360 million exemplary damages award (In Re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 2244, No. 11-md-2244, Margaret Aoki v. Johnson & Johnson Services, Inc., et al., No. 13-1071, Jacqueline Christopher v. Johnson & Johnson Services, Inc., et al., No. 14-194, Donald Greer v. Johnson & Johnson Services, Inc., et al., No. 12-1672, Susan Klusmann v. Johnson & Johnson Services, Inc., et al., No. 11-2800, Robert Peterson v. Johnson & Johnson Services, Inc., et al., No. 11-1941, N.D. Texas, Dallas Div.).

Mealey's PI/Product Liability - Judge Orders Contractor To Pay Insurer In Liquidation Under Indemnity Agreement

HOUSTON - A federal judge in Texas on Sept. 28 found that a contractor and others that had agreed to indemnify an insurer in liquidation were liable to indemnify the insurer for more than $500,000 of losses the insurer paid when the contractor could not to meet its obligations on a brine storage pond project (Castlepoint National Insurance Company v. Addicks Services, Inc., et al., No. 15-cv-00462, S.D. Texas; 2016 U.S. Dist. LEXIS 134761).

Mealey's Litigation Procedure - Suit Against Whole Foods For Alleged Overpricing Scheme Dismissed In Texas

AUSTIN, Texas - A Texas federal judge on Sept. 28 dismissed without prejudice a putative class action brought under the Employee Retirement Income Security Act alleging that Whole Foods Market Inc. breached its fiduciary duty to participants in its 401(k) plan by allowing employees to continue to invest in the company while the company's stock was artificially inflated due to a widespread overpricing scheme (Thomas Martone, et al. v. Whole Foods Market Inc., No. 1:15-CV-877, W.D. Texas; 2016 U.S. Dist. LEXIS 133703).