Texas Jury Orders Johnson & Johnson to Pay More than $1 Billion

On December 1, 2016, a federal jury in Dallas returned a verdict against pharmaceutical giant Johnson & Johnson and its subsidiary, DePuy Orthopaedics, holding that the company's Pinnacle hip implant was negligently designed, that the company knew of risks associated with the product, and that the company failed to adequately warn consumers of those risks. The jury awarded six plaintiffs damages in excess of $1 billion-$32 million in compensatory damages and $1 billion in punitive damages. Johnson & Johnson had rejected a $1.8 million dollar settlement offer before trial.

Wood Flooring from Lumber Liquidators Can Cause Cancer

You would never expect that your beautiful new wood flooring could potentially cause serious harm to you and your family. But, earlier this month, the Center for Disease Control released a report stating that certain laminate flooring sold by Lumber Liquidators contains excessive amounts of formaldehyde. Exposure to the flooring could cause cancer, complications with asthma or COPD, and irritation to a person’s eyes, nose, and throat. You can find the CDC report online at http://www.cdc.gov/nceh/laminateflooring/default.html.

Formaldehyde is commonly used in the flooring industry as a binding agent, but there are strict limits on how much of the chemical can be used. The CDC report confirms a 60 Minutes investigation that found Lumber Liquidators’ laminate flooring exceeds these limits and that the Chinese factories supplying the flooring mislabeled the products as meeting stringent health standards.

Although the laminate top is meant to contain the formaldehyde typically used, the excessive amount found in the Lumber Liquidators laminate flooring escapes and puts people at risk. According to Denny Larson, the expert consulted in the 60 Minutes investigative report, the risk is made greater due to the fact that you are living with it on a daily basis. You're in a chamber so you're living with it. You're sleeping in there. And you're constantly exposed. That's the threat. The constant exposure to a potent carcinogen ...

The CDC strongly stress[es] taking steps to reduce exposures, which should alleviate respiratory and eye, nose and throat irritation. These steps should also reduce the cancer risk. The only way to reduce your exposure is to remove the risk.

If you purchased and installed Lumber Liquidators laminate wood flooring, you should contact us immediately. Together, we can determine your potential risk and we can help you recover your economic damages to rip out and replace the dangerous flooring.

BEATING THE TIMER: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN PERSONAL INJURY ACTION

Most people are vaguely aware that there are deadlines associated with the filing of a lawsuit. In general these ‘deadlines’ can be classed under the moniker of statutes of limitation. As the Supreme Court has explained, statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Statutes of limitation require that a cause of action be brought, e.g. filed, within a specified period after the day the cause of action accrues. See e.g. TEX. CIV. PRAC. & REM. CODE ‰16.002 “16.004, 16.051.

The Texas Civil Practice and Remedies Code expressly provides for a 2-year statute of limitations as to claims for personal injuries. See TEX. CIV. PRAC. & REM. CODE 16.003. In most cases, a personal injury cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Thus, for example, the statute of limitations would generally begin to run as to an automobile accident on the date that the accident occurred, not some later date when a party might learn that he had been injured. In some circumstances, however, the so-called ‘discovery rule’ may operate to defer the accrual of such an action until a later date that an injury is discovered.
Under Texas law, the ‘discovery rule’ provides a very limited exception to statutes of limitations. Computer Assocs. Intl, Inc., v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

While accrual of a Texas personal injury action generally occurs when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury, the judicially-crafted discovery rule defers accrual of the cause of action if the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). In such a circumstance, the cause of action would not accrue until the plaintiff knows or reasonably should have known of the injury. Id. at 37. In determining whether the discovery rule might apply, however, courts utilize a categorical approach. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001).

Using this approach, a court does not determine when a particular injury was actually discovered in a particular case, but rather whether the case is the type to which the discovery rule applies.

If you have a question about whether an injury you’ve suffered might be subject to the discovery rule, you should contact one of the experienced personal injury attorneys at Bailey & Galyen.

Denial of Personal Injury Claims Based on Contributory Negligence

Auto insurance companies often deny personal injury claims or offer to pay only a small settlement on the basis that the accident was partially or completely caused by the negligence of the person making the claim. Let’s assume for example that Susan was driving down the street when Joe suddenly pulled out of a private drive directly into the path of Susan’s oncoming car which was just a few feet away and the vehicles collided, causing her to sustain serious injuries. She makes a personal injury claim against Joe’s insurance company because Joe got a ticket for failing to yield the right-of-way and she believes the accident was clearly his fault. Joe’s insurance company may take the position that the accident was completely or partially Susan’s fault because Joe says she was driving too fast and failed to timely apply her brakes. (Insurance companies often disregard the investigating police officer’s opinion as to fault since the officer did not witness the accident.) The insurance company may deny Susan’s claim outright or it may offer to pay only a small fraction of her damages.

Under Texas law the amount a person is entitled to recover when they are injured by another person’s negligence is reduced by the injured person’s percentage of responsibility. For example, if Susan’s damages (medical bills, pain and suffering, lost wages, etc.) total $100,000 and she was 25% at fault then her recoverable damages will be reduced by 25%. So she will be entitled to recover $75,000 from Joe’s insurance company. If she was 40% at fault then she will be entitled to $60,000. However, if she was 51% at fault or more then she will be barred from recovering anything and will receive zero.

Contributory negligence is only one defense that insurance companies may assert in denying personal injury claims or offering small amounts to settle. There are several other defenses they may try to claim. A board certified personal injury attorney is often able negotiate these issues and reach a mutually agreeable settlement with an insurance company. However, sometimes settlement is not possible and it becomes necessary to file a lawsuit. A jury then decides these issues.

VICIOUS CIRCLE: TEXAS DOG BITE LAW AND STRICT LIABILITY

Although numerous theories can be alleged in lawsuits relating to dog bites, strict liability is a theory most frequently pleaded. In such a case, the controlling issue to be determined is whether the party against whom suit is brought has knowingly kept or harbored a vicious dog. Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App. Eastland 1971, writ ref d n.r.e.). Because such viciousness is generally sought to be established through evidence of prior bites, this principal of liability is often referred to as the One Bite Rule. But, it should be noted that despite this moniker, it is not viciousness alone which will support liability, but also dangerousness in general. See Restatement (Third) of Torts, 23 cmt. c (2010) ( For strict liability to attach, it is not required that the animal be vicious or aggressive; a finding of the animal’s abnormal dangerousness is sufficient.).


The reason for the imposition of such strict liability is explained in the Third Restatement of Torts, which states:

Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in retaining the animal is at least questionable, and strict liability gives the owner an incentive to consider whether the animal should be retained. Even if that retention is itself proper, an abnormally dangerous animal is by definition unusual; owning such an animal is an activity engaged in by a few that poses significant risks on others within the community. In these circumstances, strict liability is fairly imposed.
Restatement (Third) of Torts, 23 cmt. b (2010). Thus, [t]he owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal. Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App. Houston [1st Dist.] 1980, no writ). Whether a dog has a vicious nature and whether the owner is aware of that nature is a question for the finder the jury to determine. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App. Corpus Christi 1977, writ ref d n.r.e.). Once an owner is aware of his dog’s propensity for viciousness he need not be negligent in order to be liable for the injuries caused when his dog bites a third party. See Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App. Dallas 1947, no writ) (an owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.).

One Bite and You’re Out: Strict Liability for Dog Bites in Texas

 

One means of imposing liability on the owners of dogs for attacks which result in injuries is the imposition of strict liability against such dog owner.[1] To recover on a claim of strict liability for injury by a dangerous domesticated animal, such as a dog, it must be shown that: (1) the defendant was the owner or possessor of the animal; (2) the animal had dangerous propensities abnormal to its class; (3) the defendant knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff's injury. See Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex.App.--Dallas 2004, no pet.); Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex.App.--Corpus Christi 1992, no writ). The need for establishing knowledge of some vicious propensity on the part of the animal in question has given rise to strict liability being referenced as the so-called one-bite rule. [2]

As our courts have explained, "in a dog bite case the controlling issue to be determined is whether the party complained against has knowingly kept or harbored a vicious dog." Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App.--Eastland 1971, writ ref'd n.r.e.). Stated differently, the one-bite rule provides that an "owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it." Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App.--Dallas 1947, no writ).  As our courts have noted, this rule does not purport to focus in any way on the particular breed of the dog which engages in the attack.  See Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 664, n. 6 (Tex.App.--Waco 2002, no pet.).  Thus, the fact that the attacking dog might be a pit bull, or similar breed with a public perception of increased hostility, will not give rise to any presumption of hostility for purposes of establishing liability.

[1] Other means of imposing liability against the owner of an attacking dog include negligence (e.g. negligent handling of an animal), and negligence per se (e.g. violation of ordinances).

[2] Although referred to as the one bite rule, it should be noted that a bite is not the only aggressive action which will give rise to a presumption of knowledge of vicious propensities.

Sweet Old Lady

Ronald Reagan once said It is time to restore the American precept that each individual is accountable for his actions.  Personal Responsibility has long been held as a conservative value and rightfully so.  Society wants, and needs, people to be accountable for their actions.

As a kid, I used to absolutely love going to the local five and dime store with my Mom.  Perry s, a local store in Dayton, Texas, was a huge store and had everything you could imagine.  To a young child, the store was full of wonder and opportunity.  Even though I was very young, my mother would allow me to wander the store by myself while she shopped.  I spent countless hours in the toy aisle, but I also explored every other part of the store just dreaming about what I could do with a new pair of rubber boots or a new pocket knife.  I loved that store and I was always so excited to be there.

But, I was also terrified.  I was terrified of this one sweet old lady.  She was a store employee and a spy.   She was an elderly woman in horn rim glasses and she followed me wherever I went.  She tried to hide, but I always knew that she was there.  Her presence was a dark cloud that hung over me as I wandered the store and was constantly reminded that if you break it, you buy it.  Even though my mother trusted me, that sweet old lady was always around to hold me accountable if I were to actually break something.

Because I was so scared of her, I never bought a broken item.  I actually never broke anything.  But, I  always knew that I would be held accountable if I were careless and something did break.  Although I had a healthy fear of that sweet old lady, her mere presence served as a deterrent and a constant reminder that I should be careful not to break anything.

Personal responsibility is a good value.  If you break it, you buy it is a good rule.  No one should have to bear the financial burden of someone else’s careless or negligent act.

The same principle applies to injuries caused by someone other than you.  Injuries caused by others lead to financial harms and losses.  Sometimes, these financial harms and losses can be overwhelming.  The same rule of you break it, you buy it should apply in this situation.  The one who injured, or broke you, should be held responsible and accountable to pay for your financial harms and losses.

Conservatives stand firm on the constitution rightfully so I must add - and most Texans are strong believers in the Constitution.  Just dare to take away their gun and you will see what I mean.  But, while they strongly and again, rightfully - defend the 2nd Amendment, they allow their own conservative politicians to trample all over their constitutional rights to freely access the courts.

The 7th Amendment to the U.S. Constitution states In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved.

Juries exist to hold wrongdoers accountable for their actions.  Juries are the sweet old lady in horn rim glasses who actively serve as a deterrent and a strong reminder to be careful, to act appropriately, to consider the safety of others, to make safe products, and to treat patients with the proper level of care.

Even though she terrifies us at times, the jury system is a necessary and vital tool that our forefathers were right to preserve.  Personal responsibility is a good conservative value.  But, when people fail to accept responsibility for their actions, the jury system is there to hold them accountable.  She’s a sweet old lady.

Hold Your Horses!: Limitations on Liability in Recreational Equine Activities

Few things are as synonymous with Texas culture and heritage as horseback riding. Yet it is an activity which offers numerous risks of injury. In recognition of these known risks, and the importance of livestock to the state, the Texas Legislature enacted the Texas Equine Act in 1995. The Equine Act, as amended¹, provides:



  • [A]ny person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of a farm animal activity or the showing of an animal on a competitive basis in a livestock show



TEX. CIV. PRAC. & REM. CODE 87.003. The Act therefore shields those who provide or otherwise offer horses and other livestock for recreational use from liability for injuries sustained form so-called inherent risks of these activities. Among such inherent risks identified in the statute are:



  1. the propensity of a farm animal or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;

  2. the unpredictability of a farm animal's or livestock animal's reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal;

  3. with respect to farm animal activities involving equine animals, certain land conditions and hazards, including surface and subsurface conditions;

  4. a collision with another animal or an object; or

  5. the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over a farm animal or livestock animal or not acting within the participant's ability.


TEX. CIV. PRAC. & REM. CODE 87.003. This list of inherent risks is not, however, exclusive. See Loftin v. Lee, 341 S.W.3d 352, 356 (Tex. 2011). Surprisingly, among the unlisted inherent risks recognized by our courts is the risk that your activity’s sponsor will be negligent. See Loftin v. Lee, 341 S.W.3d at 357. The Act does, however, provide exceptions to its protections. These exceptions are for equipment provided by a defendant and known to be faulty; known latent conditions of the land; and willful, wanton, or intentional conduct. See generally TEX. CIV. PRAC. & REM. CODE 87.004. Additionally, the Act does not protect a defendant who provided the animal, but did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the farm animal activity or livestock show and determine the ability of the participant to safely manage the farm animal or livestock animal, taking into account the participant's representations of ability. TEX. CIV. PRAC. & REM. CODE 87.004(2).



Contact Us



At the law offices of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of our convenient locations. We will take your call 24 hours a day, seven days a week.



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¹The Act was amended in 2011 to provide the same limitations of liability described herein to most livestock activities in general, as opposed to just equine activities.

WHO MAY BRING A CLAIM WHEN SOMEONE IS KILLED?

Who May Bring A Claim When Someone is Killed?When someone is killed and it was the fault of another person or company Texas law allows certain family members to file suit for wrongful death. These family members include the decedent’s spouse, children, and parents. No one else may bring a claim. Grandparents, siblings, foster parents, and other relatives are not entitled to bring a wrongful death claim, no matter how close they were to the decedent or financially dependent upon him they were. Stepchildren and stepparents of the decedent may not bring a wrongful death claim unless there had been an adoption. The wrongful death claimants may sue for their mental anguish, pecuniary loss (such as loss of care, maintenance, support, services, advice, counsel and monetary contributions they would have received from the decedent if he or she had lived), loss of companionship and society, and loss of inheritance.


The decedent’s estate also has what is known as a survival claim. This is a claim for the pain and mental anguish the decedent suffered before death, medical expenses for treatment of the decedent’s injuries, and funeral and burial expenses. Any money recovered by the estate in a survival claim will be distributed according to the decedent’s will or, if there is no will, then to the decedent’s heirs under the Texas law of intestacy.


When a person is killed by another’s negligence and a close relative witnesses the event, that relative may have what is known as a bystander claim. Generally Texas law requires that 1) the person was near the scene of the accident, 2) the shock to the bystander resulted from a direct emotional impact from observing the accident, and 3) the bystander was closely related to the decedent. An example would be a fatal car wreck where a passenger witnesses the death of a relative.



Contact Us



At the law offices of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of our convenient locations. We will take your call 24 hours a day, seven days a week.