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Michele Smith, Art Almquist, Darah Eckert - MehaffyWeber; Thomas Kuhns and Stacey Pagonis - Kirkland Ellis; Daniel Williams and Jimmie Williams vs. The Dow Chemical Co.; Cause No. 35769*RM05, 149th Judicial District Court, Brazoria County, Texas
Michele Smith, Art Almquist and Darah Eckert of MehaffyWeber with Thomas Kuhns and Stacey Pagnois from Kirkland Ellis won a victory for The Dow Chemical Company in a premises liability case in Brazoria County.
Daniel Williams, aged 75, was diagnosed with lung cancer in 2005. Williams and his spouse sued Dow for negligence and gross negligence alleging that Mr. Williams' cancer was caused by exposure to asbestos in the workplace and that the workplace was unsafe. Daniel Williams worked as a laborer for various contractors at The Dow Chemical Company in Freeport, intermittently from 1954 to 1985. Dow Chemical contended that it operated its facility in a safe manner, that Mr. Williams' asbestos exposures were minimal and his cancer was caused by his smoking history of at least 35 pack-years. At trial, plaintiffs argued for more than $5,000,000 in damages. Plaintiffs were represented by Waters & Kraus of Dallas, Texas. The jury returned a verdict of no liability in favor of The Dow Chemical Company.
Kathleen Kennedy - Ronald Lewis and Kaye Lewis vs. Eastham Drilling, Inc. d/b/a Big E Drilling Co. and Carrizo Oil & Gas Co.; Cause No. CV73246; In the 75th Judicial District Court, Liberty County, Texas
Kathleen Kennedy continued her trial victories in winning a personal injury case involving an oilfield worker. The case involved an oilfield accident on a land rig where Plaintiff was crushed between a scaffold stand and the derrick leg with severe internal injuries and $628,000 in medical. The plaintiff sued the rig owner, Big E Drilling, the well owner, Carrizo Oil and Gas, and the company man, James Bristol. Kathleen represented Carrizo and Bristol. Big E settled out a month prior to trial. Kathleen designated the employer, Premiere, as a responsible third party and argued all fault was on Premiere.
Jury found no negligence on Carrizo or Bristol and placed all fault on Premiere with no answer to the damage question. Plaintiff was asking for $1,807,500.00.
Kathleen Kennedy - James and Lisa Levine vs. United Scaffolding, Inc.; Cause No. E-177,607; 172nd Judicial District Court, Jefferson County; December 12, 2008
Plaintiff sued for personal injury from a fall hole in scaffolding erected by United Scaffolding, Inc. at Valero Refinery, Port Arthur, Texas. United Scaffolding argued that the Valero employees were not supposed to be on the scaffold on that day and were in violation of both OSHA and Valero requirements that scaffolding be inspected prior to each use. The scaffolding did not have an up-to-date permit tag for the day of the incident.
At trial, plaintiff sought damages totaling $4.8 to 8.6 million for past and future medical costs and past and future wage loss. Plaintiff's wife sought $1.2 million for loss of consortium. The jury found plaintiff 49% negligent. The jury found United Scaffolding, Inc. 51% negligent. The jury awarded only future medical costs totaling $178,000.00. After adjustment for plaintiff's contributory negligence, a verdict for $90,780.00 was entered.
Patricia Chamblin, Elizabeth Pratt- City of Beaumont v. International Ass'n of Firefighters, Local Union No. 399, 241 S.W.3d 208 (Tex. App.-Beaumont 2007, no pet).
MehaffyWeber successfully handled the City of Beaumont's appeal of a trial court's order denying its motion to vacate an arbitration award. The City of Beaumont and the union arbitrated for a new pay package pursuant to their collective bargaining agreement. The arbitrator found in favor of the union, disregarding the collective bargaining agreement provision allowing consideration of the wages of other municipal firefighters in setting compensation and awarding a 9% pay raise to the firefighters each year for three years. The District Court upheld the arbitrator's award. The City then appealed to the Ninth Court of Appeals. The Ninth Court of Appeals found that the arbitrator's jurisdiction was strictly a creature of contract and that the arbitrator had exceeded the jurisdiction conferred upon him by disregarding the provision permitting consideration of other municipal firefighter wages. Accordingly, the Court reversed and rendered, holding that the arbitration award was unenforceable. This rare and extremely significant Fire and Police Employee Relations Act case clearly confirms that FPERA arbitrators have no broader authority or discretion than arbitrators acting under either the Federal Arbitration Act or the Texas General Arbitration Act.
Art Almquist, Sandra Clark, Paul Heyburn -Janie Wolf, et al vs. The Dow Chemical Co.; Cause Number 16383*BH01, District Court of Texas, 23rd Judicial District, Brazoria County,
The Dow Chemical Co. received a defense verdict on February 1, 2008. In 1999, Alton Wolf died of lung cancer, at the age of 65. Wolf's widow and adult children sued Dow for gross negligence, alleging that Mr. Wolf's cancer was caused by exposure to asbestos in the workplace and that the workplace was unsafe. Alton Wolf held various jobs, such as a pipefitter and operator from 1952 to 1987 as an employee of The Dow Chemical Co. in Freeport. Dow Chemical contended that it operated its facility in a safe manner, that Mr. Wolf's asbestos exposure was minimal and his cancer was caused by his smoking history of at least 40 pack-years.
Caryl Richardson, Individually and as Independent Executrix of the Estate of Willis N. Whisnant, Jr., Deceased, et al vs. E.I. du Pont de Nemours and Co., et al; Cause No. E-159,183-Q; District Court of Texas, 172nd Judicial District, Jefferson County; M.C. Carrington, Sandra Clark- MehaffyWeber, Larry Cotten- Cotten Schmidt.
E. I. du Pont de Nemours and Co. received a defense verdict in this case. This trial focused on the claims of Willis N. Whisnat, Jr., a pipefitter employed by B.F. Shaw, a general contractor. His family alleged that Whisnant developed mesothelioma and died in 1999 at 72 years of age as a result of exposure to asbestos while working for B.F. Shaw at DuPont's Sabine River Works from 1966 to 1975.
DuPont alleged that it was not negligent and not a proximate cause of the plaintiff's injury. The jury found that DuPont was not negligent.
Ford v. Pulmosan Safety Equipment Corp., 831 N.Y.S.2d 353 (2006 WL 3437670). Barbara Jane Barron and Frank A. Domino
In a special proceeding instituted under the New York Business Corporation Law they filed a petition in intervention in the New York Supreme Court for Queens County, arguing that a dissolved manufacturer who had been in litigation for decades was still in the process of winding up its affairs, and as such remained subject to suit for contribution and indemnity claims brought by companies sued as alleged distributors of the dissolved manufacturer's products.
The manufacturing defendant then appealed to the New York Appellate Division. For the appeal, Barbara Barron and Frank Domino were hired by numerous companies sued as alleged distributors of the manfacturer's products. The Appellate Division after briefing and oral argument found in favor of the distributors. Jonathan C. Allen, Patricia Chamblin, William C. Little and Michele Smith - Heritage Housing Development, Inc. v. Carr, 199 S.W.3d 560 (Tex. App.--Houston [lst Dist.] 2006, no pet.). Velma Carr, the widow of a nursing home patient, brought a survival action against our clients, a nursing home, Houston Gardens; its parent corporation, Heritage Housing Development, Inc.; and several individual employees. The suit resulted in a jury verdict against all defendants. A judgment awarded damages of $2,471,199.20 plus post-judgment interest.
On appeal, the defendants' primary contention was that there was no basis for sustaining a judgment against the parent corporation. This was important because, if the judgment against HHD were reversed, there would be no basis for an actual damage award in excess of one article 4590i statutory cap on damages. Carr conceded that there was no basis for recovery against HHD other than vicarious liability based on the negligence of the nursing home staff.
The court of appeals held that there was no evidence to support the judgment of vicarious liability against HHD and reversed and rendered judgment for HHD.
Ernest Butch Boyd, Susan Hardie Jacks and Jeremy Stone - Douglas Bacon, et al. v. [a national broker dealer], et al., Harris, Brazoria, Fort Bend and Galveston Counties- On behalf of numerous investors, this trial team successfully prosecuted and obtained favorable settlement of a securities fraud and aiding and abetting case against two broker dealers and a national bank.
Ernest "Butch" Boyd, Patricia Chamblin and Corey J. Seel - Texas Thoroughbred Breeders Ass'n v. Donnan, 202 S.W.3d 213 (Tex.App.-Tyler 2006, pet. denied). The owners of a thoroughbred horse brought suit against the Texas Thoroughbred Breeders Association, its executive director, and our client, a member of the board of directors of the association. The horse owners sued for libel, slander, negligence, and gross negligence and requested an order requiring the association to reaccredit the horse. The court of appeals reversed and rendered judgment for the defendants.
M.C. Carrington and Sandra F. Clark - E.I. du Pont de Nemours and Co. v. Travelers Casualty and Surety Company, et al., Cause No. B-176,143, in the 60th Judicial District Court of Jefferson County, Texas. The suit involved coverage for asbestos costs in personal injury cases. The firm along with Kirkpatrick and Lockhart pursued complicated coverage issues in an expedited fashion, bringing the case to conclusion within one year of filing.
M.C. Carrington and Elizabeth Pratt - Ashton Jude Moreau v. E. I. du Pont de Nemours and Company, in the 128th District Court, Orange County, Texas, Cause No. A040229-C. In February 2006, Elizabeth Pratt and M.C. Carrington secured a unanimous jury verdict in Orange, Texas in favor of E.I. du Pont de Nemours and Company in a suit based on alleged retaliatory discharge. The jury rejected the plaintiff's claims that DuPont terminated him because he had pursued a claim for workers' compensation benefits shortly before his termination.
M.C. Carrington and J. Matthew Marchak - Luther Fregia vs. H.E. Butt Grocery Company, No. CV68509, in the 253rd District Court of Liberty County. M. C. and Matt won a unanimous verdict in favor of HEB in a slip and fall claim.
Patricia Chamblin and William C. Little - CHRISTUS St. Mary Hospital v O'Banion, 227 S.W.3d 868 (Tex. App.-Beaumont 2007, pet. denied). MehaffyWeber successfully handled the appeal of an adverse judgment against a hospital. A widow and children of a patient filed a wrongful death and survival action, contending that their patient's death was proximately caused by his fall in the hospital. The trial court signed a judgment for the plaintiffs on the jury's verdict. The Court of Appeals reversed and rendered judgment for the hospital, holding that the medical testimony of four experts did not provide legally sufficient evidence that the fall proximately caused the patient's death.
Patricia Chamblin and James E. Peacock - Covington v. Sisters of Charity of the Incarnate Word, 179 S.W.3d 583 (Tex.App.-Amarillo 2005, pet. denied). The sister of a deceased patient brought a health care liability claim against a doctor and our client, a hospital. The court of appeals affirmed the summary judgment, and the Texas Supreme Court denied the petition for review.
In its opinion, the court of appeals noted that ordinarily only a personal representative, executor, administrator or heir may sue on behalf of the estate.
Patricia Chamblin - Mahmood v. Fanasch, No. 09-05-134-CV (Tex.App.-Beaumont, Nov. 17, 2005, no pet.) (not designated for publication), 2005 WL 3073786. Mahmood filed a declaratory judgment action against Fanasch, seeking a declaration that a covenant not to compete contained in the parties' agreement was void and unenforceable. The trial court held the covenant not to compete was enforceable.
MehaffyWeber served as co-counsel for Mahmood, the appellant, on appeal. The court of appeals reversed, holding that the covenant not to compete was unenforceable. Accordingly, the court found that the trial court erred in granting injunctive relief against Mahmood.
John E. Haught - Joe Max Guillory vs. Robert McDorman, et al.; D-167, 666, in the 136th District Court of Jefferson County, Texas. On a suit to enforce a promissory note, the jury reached a defense verdict for the firm's client and awarded attorney's fees.
John E. Haught and Thomas C. Mayo - Barbara Pouncy v. Shirley Guidry Eli; No. D-172,703, in the 136th Judicial District Court of Jefferson County, Texas. John and Thomas received a virtual win in this personal injury case involving an automobile accident. The jury awarded the plaintiff $491.00 in damages - only two percent of the amount requested and much less than a pretrial settlement offer.
Paul R. Heyburn and Arthur Almquist - Carol J. Wortham Individually and as Independent Administratrix of the Estate of Hugh Wortham, Deceased v. A.C. & S., Inc., et al., Cause No. 012344*JG‑00, in the 239th District Court of Brazoria County. Paul and Art obtained two summary judgments in favor of our client in this asbestos case Patricia Chamblin successfully defended the summary judgments on the plaintiffs' appeal to the 14th Court of Appeals in Houston, which affirmed the judgments.
Kathleen Kennedy - Ronnie Tejada and Rose Tejada as next friend of K. H. T. and K. F. T. v. Jefferson County Naphcare Inc., and GEO Group; 1:06CV351, United States District Court for the Eastern District of Texas - Beaumont Division. Plaintiffs brought a Civil Rights Violation case under Section 1983 against the firm's client, Naphcare, Inc., claiming Naphcare's and other defendants' deliberate indifference to one of the plaintiff's serious injuries and medical needs (the loss of both legs below the knee and claims additional cognitive deficits). The suit also contained a claim under the Americans with Disability Act and request for punitive damages. Plaintiffs asserted damages of approximately $1.2 million in past medical expense, and their expert life care planner and economist testified that future medical and care could range from $3.6 to $6 million. Plaintiffs also asked the jury to award at least $2 million per minor child and sought two to five times the compensatory damages on each element of damages in addition to punitives damages. The jury returned a verdict in favor of the defendants on all claims.
Roger S. McCabe and J. Matthew Marchak - Dragon Products, Ltd. v. Thomas Regional Directory Co., Inc., a Division of Thomas Publishing Company, LLC., NO. 09-05-00176-CV, 9th Court of Appeals. The firm represented the plaintiff in successfully prosecuting this breach of contract case at trial and on appeal to the court of appeals and in the Texas Supreme Court.
James E. Peacock - Cedric Bazile, et al., v. Baptist Hospital, et al., Cause No. B-167,440, in the 60th District Court of Jefferson County. The firm represented a hospital in this purported class action lawsuit stemming from charges related to obtaining copies of medical bills and affidavits from local healthcare providers. The firm successfully challenged jurisdiction and the plaintiffs' rights to bring a private cause of action, asserting that Plaintiffs' claims pertained to an alleged violation of Chapter 241 of the Tex. Health & Safety Code for which there is no private cause of action and that exclusive jurisdiction to enforce Chapter 241 lies with the Texas Department of Health. The court agreed and dismissed the lawsuit.
Elizabeth Pratt - Tammy Wilturner v. Best Buy Stores, L.P., Civil Action No. 1:05cv443, in the Eastern District of Texas, Beaumont Division. Elizabeth prevailed in this employment retaliation case on behalf of Best Buy. The jury unanimously rejected plaintiff's allegations that employer had demoted her, denied her promotions, and otherwise treated her unfairly because she had filed several EEOC charges.
Elizabeth Pratt - Ernest M. Moore v. Principal Life Insurance Company and Nelda C. Stark Plan, Civil Action No. 1:06cv0180, in the 260th Judicial District Court of Orange County, Texas. Elizabeth obtained summary judgment for the Nelda C. Stark Plan, securing dismissal of all of plaintiff's claims of ERISA violations and alleged failure to pay benefits in compliance with plan provisions.
Elizabeth Pratt - Kari Ellen Kennedy, Independent Executrix of the Estate of William Patrick Kennedy, Deceased v. E. I. du Pont de Nemours and Company and Plan Administrator for DuPont Savings and Investment Plan; Appeal No. 05-41851. In August 2007, Elizabeth, in conjunction with Ray Ripple, Corporate Counsel for DuPont, secured a decision from the United States Court of Appeals for the Fifth Circuit confirming that DuPont had acted in compliance with ERISA in dispensing pension plan funds to a deceased employee's designated beneficiary.
Jeremy Stone and Corey Seel - Cowboy Truck & Equipment, Inc. vs. A.J. Crane Baku, Cause No. 2005-14855, in the 125th Judicial District Court, Harris County. Jeremy Stone and Corey Seel represented A.J. Crane Baku, which was sued by Cowboy Truck for suit on a sworn account and breach of contract related to equipment purchased and installed in a heavy transport truck. A.J. Crane filed counterclaims for breach of contract, fraud, DTPA violations and other causes of action. The jury returned a verdict in favor of A.J. Crane on its defenses, as well as its counterclaims, awarding A.J. Crane substantial damages, including attorney’s fees and treble damages for a knowing DTPA violation.
Jeremy Stone - Premiere Holdings of Texas, LP Liquidating Trust v. Sterling Reit, Inc., and Thomas Mathew; No. H-04-916; In the United States District Court for the Southern District of Texas, Houston Division. Jeremy represented Premiere Holdings of Texas, LP Liquidating Trust in a suit for dishonor of a promissory note, breach of contract and fraud against Sterling REIT, Inc. and Thomas Mathew. After obtaining a default judgment against Sterling REIT, Inc. for over a million dollars, trial proceeded against Mr. Mathew, which resulted in a favorable settlement during the first day of the jury trial.
Susan Hardie Jacks and Jeremy Stone - E.B. Berger, Inc. v. Steve Thompson; Case No. 06-52351-LMC-7; In the United States Bankruptcy Court for the Western District of Texas, San Antonio Division. Susie and Jeremy represented E.B. Berger, Inc. against its former employee, who filed bankruptcy in an effort to avoid his liabilities to Berger. After a four-day trial, the court ruled in favor of Berger, holding that the debtor committed fraud, larceny, and embezzlement, and breached his fiduciary duties. The court awarded substantial damages to Berger and ruled that the damages were not dischargeable in bankruptcy.
