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West Fertilizer Plant - Media Reports of Plant Violations

Apr 19, 2013 — by Jeff Mundy
Tags: West Fertilizer Plant

Federal Governmental Immunity - Federal Tort Claims Act

Apr 17, 2013 — by Jeff Mundy
Tags: Governmental Immunity

The district court held that those claims fell under the FTCA's discretionary-function exception, which provides that sovereign immunity is not waived for discretionary acts and decisions.

Whether the discretionary exception applies involves a two-part inquiry. First, the act must "involve an element of judgment or choice." This first part is met "[i]f a statute, regulation, or policy leaves it to a federal agency or employee to determine when and how to take action[.]" Second, the challenged conduct must involve "governmental actions and decisions based on considerations of public policy."  The second part of the inquiry asks "not whether the decision maker 'in fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy analysis.'"  In re: FEMA Trailer Formaldehyde Products Liability Litigation (5th Cir. 2013)


Contract Law - Mutual Mistake & Novation

Apr 9, 2013 — by Jeff Mundy
Tags: Contract Law

To prove a mutual mistake, the evidence must show that both parties were acting under the same misunderstanding of the same material fact. Id. A unilateral mistake by one party, combined with knowledge of that mistake by the other party, is equivalent to mutual mistake. Davis v. Grammer, 750 S.W.2d 766, 768 (Tex. 1988). But, "[a] mistake by only one party to an agreement, not known or induced by acts of the other party[,] will not constitute grounds for relief." Smith-Gilbard, 332 S.W.3d at 713-14 (quoting Johnson v. Snell, 504 S.W.2d 397, 399 (Tex. 1974)). Mutual mistake should not be available to avoid the results of an unhappy bargain. Williams v. Glash, 789 S.W.2d 261, 265 (Tex. 1990). Parties should be able to rely on the finality of freely bargained agreements. 

New York Party Shuttle LLC v. Bilello, (Tex. App. - Houston [1st Dist.] 2013)

Federal Tort Claims Act - Supreme Court

Apr 9, 2013 — by Jeff Mundy
Tags: Governmental Immunity

The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort." The Act gives federal district courts exclusive jurisdiction over claims against the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission" of a federal employee "acting within the scope of his office or employment." 28 U. S. C. §1346(b)(1). This broad waiver of sovereign immunity is subject to a number of exceptions.... One such exception, relating to intentional torts, preserves the Government's immunity from suit for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." §2680(h). 

Millbrook v United States, (Supreme Court of the United States, 2013)


Discovery of Computer Memory & Data Storage

Apr 8, 2013 — by Jeff Mundy
Tags: Discovery

As a threshold matter, the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data. The requesting party should also show that the responding party's production 'has been inadequate and that a search of the opponent's [electronic storage device] could recover deleted relevant materials.' Courts have been reluctant to rely on mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties. Even if the requesting party makes this threshold showing, courts should not permit the requesting party itself to access the opponent's storage device; rather, only a qualified expert should be afforded such access, and only when there is some indication that retrieval of the data sought is feasible.  

In re: Pinnacle Engineering Inc., (Tex. App. - Houston [1st Dist.], 2013)

Hospital Van Safety = Medical Malpractice Claim

Apr 6, 2013 — by Jeff Mundy
Tags: Medical Malpractice

A health care liability claim has three component parts: (1) a physician or a health care provider must be the defendant; (2) the suit must relate to the patient's treatment, lack of treatment, or some other departure from accepted standards of medical care, health care, or safety, or professional or administrative services directly related to health care; and (3) the defendant's act or omission or other departure must proximately cause the claimant's injury. 




Car Wrecks - 10% Caused by Distracted Driving

Apr 5, 2013 — by Jeff Mundy
Tags: Car Wrecks

Ten percent of U.S. auto accidents that caused death involved at least one motorist who was distracted, Erie Insurance Group said yesterday in a statement on its analysis of national crash data. Daydreaming and being "lost in thought" was the distraction 62 percent of the time, compared with 12 percent for mobile-phone use, Erie said.

Successor Liability for Employee Claim

Apr 4, 2013 — by Jeff Mundy
Tags: Successor Liability


[T]he successor doctrine arises in the context of discrimination cases in situations where the assets of a defendant employer are transferred to another entity. Thus, the purpose of the doctrine is to ensure that an employee's statutory rights are not "vitiated by the mere fact of a sudden change in the employer's business." The doctrine allows the aggrieved employee to enforce against the successor a claim he could have secured against the predecessor.

Thus, applicability of the doctrine hinges on the need to protect a plaintiff where the offending entity is substituted by another company



Medical Malpractice - Standard of Review

Mar 19, 2013 — by Jeff Mundy
Tags: Medical Malpractice

Appellants' claims against appellees are health care liability claims sounding in negligence. The elements of such claims are (1) a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.--Dallas 2006, pet. denied). The standard of care for a health care provider is what an ordinarily prudent health care provider would do under the same or similar circumstances.  Proximate cause encompasses foreseeability and cause in fact. Meier, 198 S.W.3d at 414. Cause in fact is established if the negligent conduct was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. In a medical-malpractice case, the plaintiff ordinarily must produce expert testimony to establish both the applicable standard of care and proximate causation if those matters are not within the experience of a layperson.

Constitutionality of Municipal Ordinance

Mar 18, 2013 — by Jeff Mundy
Tags: Civil Rights

In United States v. O'Brien, the United States Supreme Court established a four-pronged test for the purpose of determining whether a government regulation is justified and determined that a regulation does not impinge on First Amendment freedom of expression if: (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id.; Fantasy Ranch Inc. v. City of Arlington, Texas, 459 F.3d 546, 554 (5th Cir. 2006).

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