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Expert Witness - Basis for Testimony

Jan 28, 2013 — by Jeff Mundy
Tags: Civil Procedure

Expert witnesses may base opinions on facts or data that the expert “has been made aware of or personally observed.” Fed.R.Evid. 703. If the facts and data relied upon are the sort that experts in that field would reasonably rely on, then those facts “need not be admissible for the opinion to be admitted." Id. Accordingly, experts may base their opinions on otherwise-inadmissible information, such as hearsay, so long as the information is the sort reasonably relied upon in the experts' field.

Contract Prevails Over Statutory Law

Jan 14, 2013 — by Jeff Mundy
Tags: Contract Law

... unless a contract is declared by law to be void or unenforceable, a court should not refuse to enforce a contract simply because it is in contravention of a statute. ... The court explained that if the legislature has expressly provided that other consequences may arise from violation of the statute, a reviewing court should reasonably infer that those consequences were adjudged to be adequate to secure the statute's observance, and that only those remedies should be applied. 

International Risk Control LLC v. Seascape Owners Association, (Tex. App. - Houston [14th Dist.] 2013).

Medical Tort Reform - When does it apply?

Jan 8, 2013 — by Jeff Mundy
Tags: Medical Malpractice

A hospital removed a podiatrist's privileges to practice at the hospital.

The doctor sued and the hospital asserted that the case was governed by the 2003 tort reform.

The court of appeals discusses the factors that determine whether a claim is subject to the tort reform.


Economic Loss & Settlement Credit Law

Jan 7, 2013 — by Jeff Mundy
Tags: Damages


One general formulation of the economic loss rule is that a party may not recover in tort for purely economic losses suffered to the subject matter of a contract.  In determining whether the economic loss rule applies, courts must consider "both the source of the defendant's duty to act (whether it arose solely out of the contract or from some common-law duty) and the nature of the remedy sought by the plaintiff." 

A non-settling defendant may only claim credit based on damages for which all joint tortfeasors jointly liable; and, exemplary damages assessed against non-settling defendant may not be offset by amount of common damages paid by settling defendants.

"Leased" Worker Not Barred by Worker's Comp

Jan 6, 2013 — by Jeff Mundy
Tags: Personal Injury

If an employee is covered by workers' compensation insurance, suits against their employer are barred by workers' compensation law.

However, the increasingly common practice of "leasing" workers complicates the analysis.  A leased worker's claim may not be barred unless certain criteria are met.

Texas Contract Law

Jan 6, 2013 — by Jeff Mundy
Tags: Contract Law

In disputes over the meaning of a contract, courts first look to the plain language of the contract to determine whether it is ambiguous. "In Texas, whether a contract is ambiguous is a question of law." A contract is ambiguous "if its plain language is amenable to more than one reasonable interpretation."   If a contract is unambiguous, we apply its plain meaning and enforce it as written.  If a contract is ambiguous, then, and only then, do we consider extrinsic evidence for "the purpose of ascertaining the true intentions of the parties expressed in the contract." 

Land Use - Ranch Road or County Road?

Jan 6, 2013 — by Jeff Mundy
Tags: Land Use

A ranch road in existence and used by the public for many decades is a county road impliedly dedicated to public use.

Caller ID - Anti-Spoofing Law

Jan 5, 2013 — by Jeff Mundy
Tags: Consumer Rights


The Truth in Caller ID Act of 2009 (TCIA) (codified entirely within 47 U.S.C. § 227(e)) provides:

It shall be unlawful for any person within the United States, in connection with any telecommunications service or [Internet protocol]-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value . . . . 47 U.S.C. § 227(e)(1) (emphasis added). TCIA violators are subject to civil and criminal liability. 47 U.S.C. § 227(e)(5). Jointly, TCIA and TCPA provide a private right of action, grant enforcement powers in both federal and state governments, grant intervenor rights to the Federal Communications Commission (FCC), and vest district courts with exclusive jurisdiction over claims under 47 U.S.C. § 227(e)(1). 47 U.S.C. § 227(e)(6), (g)(1)-(3).

Texas Whistleblower Law

Jan 5, 2013 — by Jeff Mundy
Tags: Whistleblower Asbestos

School employee reported asbestos hazards in a school and was terminated.  He brought a whistleblower action against the school district.

The court of appeals found that the the school district was not entitled to governmental immunity from a whistleblower action.

Police Excessive Force & Civil Rights

Jan 4, 2013 — by Jeff Mundy
Tags: Civil Rights

Cases asserting the use of excessive force by police are complex with substantial legal challenges.

However, citizens have the right to be free from the use of excessive force by police.

Most of these types of cases tend to be in federal court.  

The Fifth Circuit Court of Appeals is the federal court of appeals for Texas.

In this case from Beaumont, the Fifth Circuit explains the law relating to bringing a case for the use of excessive force.

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