July 9, 2008 Edition

Welcome to the July 9, 2008 edition of the Appellate Lawyer -- the monthly newsletter of the HBA Appellate Section.

Click on these titles to view the contents:

1 - Case Summaries

A summary of selected recent opinions from the Texas Supreme Court and the First and Fourteenth Courts of Appeals by Ian Beliveaux (from the June 2008 luncheon).

2 - Tips from the Top - Tips from Appellate Practitioners

R. Alan York on not responding to snide remarks

3 - Houston Appellate Calendar

Calendar of appellate events from July through September 2008

4 - Current Practices of the First and Fourteenth Courts

Beth Crawford on the practices of the First and Fourteenth Courts regarding summer recess

May 2008 Cases Impacting Houston Appellate Lawyers

Presented June 19, 2008 at the HBA Appellate Section Luncheon
by Ian R. Beliveaux, Faubus Taft Scarborough, LLP


Opinions Issued May 15, 2008 – June 18, 2008
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In re McAllen Medical Center, Inc., 05-0892 (May 16, 2008) (Justice Brister) (orig. proceeding)

Significance: This case clarifies that—despite Walker v. Packer’s admonishment that trial expense and delay does not alone generally warrant mandamus relief—such relief may be necessary when refusal to provide interlocutory review so will defeat the purpose behind an expedited timetable provided for by statute.[1]

Holding: The trial court abused its discretion by not granting the defendant’s motion to dismiss plaintiffs’ medical malpractice claims because plaintiffs’ expert report was inadequate, and no adequate remedy exists on appeal given that the trial court waited four years before erroneously ruling that the report was adequate.

Relevant facts: Approximately 400 plaintiffs representing 224 former patients filed a class action lawsuit against the defendant hospital over the allegedly negligent credentialing of Dr. Francisco Bracamontes. The defendant moved to dismiss, arguing that the plaintiffs’ expert was not qualified to opine on the issue of credentialing. After four years, the court denied the motion and the defendant filed a writ of mandamus.

In granting relief, the supreme court concluded that although the legislature did not make the procedures for interlocutory review of expert reports retroactive to pre-2003 cases (such as this one), it did not necessarily intend to prohibit review in pending cases. Because it was within the court’s power to fulfill the legislature’s intent, and because to do otherwise would frustrate the purpose behind the expedited deadlines imposed for filing expert reports by the legislature in medical malpractice cases, extraordinary relief was appropriate.
The dissent criticized the majority’s conclusion that because “the hospital could have avoided significant expense and delay had the trial court followed the law as set out in the statute” it has no adequate remedy by appeal as a departure from the principle that an inadequate remedy does not exist because a party will have to bear the expense associated with going to trial.

[1] In contrast, the court in In re Roberts, 05-0362 (June 6, 2008) (per curiam) held mandamus relief was not appropriate to review a trial court’s granting a 30-day extension to amend an expert report required by the former 4590i because the benefits of mandamus review were outweighed by the detriments (time).
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Providence Health Center a/k/a Daughters of Charity Health Services of Waco v. Dowell, 05-0386 (May 23, 2008) (Justice Hecht)

Significance: This case helps clarify when the connection between a mental-health patient’s release and his subsequent death is too attenuated to establish proximate cause in a negligence wrongful death and survival action.

Holding: A patient’s discharge from the hospital without a comprehensive assessment of his risk of suicide did not proximately cause his death.

Relevant facts: The plaintiffs brought a wrongful death and survival action against a hospital for negligence in not making a comprehensive assessment of their son’s risk of suicide before releasing him. Thirty-three hours after his discharge, he committed suicide. The court concluded that the discharge was too remote in time and circumstances to find that the hospital’s negligence was the proximate cause of the patient’s suicide. Specifically, the court held that there was no evidence that (1) the patient could have been hospitalized involuntarily; (2) he would have consented to hospitalization; (3) he exhibited any unusual conduct following his discharge; or (4) any of his family or friends believed further treatment was required.

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In re General Agents Ins. Co. of America, Inc., 14-07-00771-CV (May 15, 2008) (Chief Justice Hedges) (orig. proceeding)

Significance: The court acknowledged the prejudice to the defendant that would result from the plaintiff being able to announce to the jury that the trial court had already granted partial summary judgment in its favor.

Holding: The trial court abused its discretion in denying the severance and the defendant had no adequate remedy by appeal because it would lose a substantial right in not being able to develop its defenses.

Relevant facts: The plaintiff brought a coverage suit against the insurance company defendant after the plaintiff obtained a $3.6 million judgment against one of the defendant’s former insureds. The defendant had entered a “buy-back” agreement with that insured under which it paid the insured $50,000 to buy back its coverage obligation under the relevant policy. The plaintiff obtained a summary judgment that this agreement between the defendant and its insured was void. The defendant moved to sever that ruling before proceeding to trial on the plaintiffs’ claims, which the trial court denied.

The court of appeals concluded that not only did the defendant satisfy the three criteria necessary for a severance, but that under the facts and circumstances, severance was necessary to prevent a manifest injustice to the defendant, who would lose the ability to develop its defenses in the face of the court’s summary judgment ruling. Finally, the court noted that severance was appropriate because the plaintiff would not be prejudiced.

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City of Pasadena v. Kuhn, 01-07-00812-CV (May 29, 2008) (Justice Keyes)

Significance: This case illustrates the conscious indifference/recklessness standard required to waive governmental immunity under the Texas Tort Claims Act when a governmental employee operating an emergency vehicle in response to an emergency call causes a traffic accident.

Holding: Reversed and rendered. The trial court erred in denying the city’s plea to the jurisdiction because evidence presented by the plaintiff failed to demonstrate that an officer acted with “conscious indifference” or “reckless disregard” for the safety of others when he collided with the plaintiff’s car in an intersection while operating an emergency vehicle.

Relevant facts: Officer Matela of the Pasadena Police Department collided with the plaintiff’s vehicle in an intersection while responding to an emergency call for a house fire. The city filed a plea to the jurisdiction. The court concluded that there was insufficient evidence to find that Officer Matela engaged in reckless conduct required to waive governmental immunity under the Texas Tort Claims Act because Officer Matela was responding to an emergency at the time of the accident and activated his emergency lights and siren and slowed down before entering the intersection.

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San Jacinto Methodist Hosp. v. Carr; 01-07-00655-CV (May 22, 2008) (Justice Bland) (memorandum opinion)

Significance: This case clarifies what statements in a medical malpractice claimant’s expert report are sufficient.

Holding: The trial court did not abuse its discretion in ruling that the plaintiffs’ expert report complied with §74.351 of the Texas Civil Practice and Remedies Code.

Relevant facts: Guy Carr, a diabetic, initially went to one hospital, where he was diagnosed with pancreatitis. He later requested a transfer to a second hospital, where it was immediately discovered that he was severely dehydrated and had high blood sugar levels. After Carr ultimately suffered cerebral edema and sustained permanent brain injuries, he and his wife sued the first hospital and proffered expert reports in support. The defendant appealed, asserting that these expert reports did not comply with § 74.351 of the Texas Civil Practice and Remedies Code because they failed to identify the standard of care and establish causation.

The trial court did not abuse its discretion by ruling that the expert report of the Carrs’ nursing expert was sufficient because she set forth specific duties and identified how Methodist failed to comply with them. The Carrs’ physician’s report was not insufficient because, when read in concert with the nursing report, it established how the defendant’s alleged negligence resulted in Carr’s injuries. Furthermore, it was not conclusory because it addressed how failures on the defendant’s part led to Carr’s injuries and put it on notice as to specific conduct that was being questioned.

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Merck & Co., Inc. v. Ernst, 14-06-00835-CV (May 29, 2008) (Chief Justice Hedges)

Significance
: This case analyzes the type of medical-expert testimony in pharmaceutical product-liability cases required to support a jury’s verdict.

Holding: Reversed and rendered. The Court concluded there was no evidence that Bob Ernst suffered a thrombotic cardiovascular event, which was required to show that Vioxx caused his death, because expert testimony on causation was based on possibility, speculation, and surmise.
Relevant facts: Carol Ernst filed suit against Merck & Co, Inc. after her husband died suddenly from cardiac arrhythmia secondary to coronary atherosclerosis. Ms. Ernst asserted that Mr. Ernst’s death was caused by the daily 25 mg dose of Vioxx that he took for seven and one-half months before his death. The Court concluded that expert testimony on causation presented at trial amounted to nothing more than speculation as to the existence of a blood clot or myocardial infarction, which was required to prove that Vioxx caused Mr. Ernst’s death.

Tips from the Top

July 2008 Tip from an Appellate Practitioner


"Resist the temptation to respond in kind to snide remarks or “cute” cultural references included in the opposing brief. For example, when faced with a sarcastic, footnoted reference to the Wizard of Oz, draft your witty retort and then delete it. You will feel better, your brief will be better, and the Court will surely appreciate your restraint."

-- R. Alan York, Godwin Pappas & Ronquillo, PC

Board Certified in Civil Appellate Law

Houston Appellate Calendar

July 2008 through September 2008.


July 4:

Fourth of July Holiday

The following courts will be closed:

· Texas Supreme Court
· Fifth Circuit
· First Court of Appeals – the late filing box will not be available
· Fourteenth Court of Appeals – the late filing box will not be available


July 17:

HBA Appellate Practice Luncheon

Leane Caps Medford on “A Modern Approach to Appellate Advocacy: Using the Latest Technology to Annotate Transcripts and Organize the Court Record, and examples of the Effective Use of e-Briefs in Trial and Appellate Courts”

Place: Coronado Club, 919 Milam Street, 5th Floor

Time: 11:30 a.m. to 1:00 p.m.

Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins

CLE Credit: 1.0 hr. participatory credit

RSVP Deadline: Tuesday, July 15th, 2008 by NOON

Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000 (Please note the new RSVP contact)

Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.


August 21:

HBA Appellate Practice Luncheon

Judge Thomas Reavley (Fifth Circuit) on Posner's How Judges Think

Place: Coronado Club, 919 Milam Street, 5th Floor

Time: 11:30 a.m. to 1:00 p.m.

Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins

CLE Credit: 1.0 hr. participatory credit

RSVP Deadline: Tuesday, August 19, 2008 by NOON

Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000 (Please note the new RSVP contact)

Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.


September 1:

Labor Day

The following courts will be closed:

· Texas Supreme Court
· Fifth Circuit
· First Court of Appeals – the late filing box will not be available
· Fourteenth Court of Appeals – the late filing box will not be available


September 3:

Civil Appellate Practice Boot Camp

By The State Bar of Texas

Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas

Time: 8:30 a.m. to 4:50 p.m.

Cost: $175

CLE Credit: 6 hours participatory credit

For more information: http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=EV&lID=7801 or call 1-800-204-2222 x1574


September 4 & 5:

Advanced Civil Appellate Practice Course

By The State Bar of Texas

Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas

Time: 8:30 a.m. to 5:00 p.m. (Thursday); 8:30 a.m. to 3:35 (Friday)

Cost: $545

CLE Credit: 12.25 hours participatory credit (including 3 hours ethics)

For more information: http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=EV&lID=7801 or call 1-800-204-2222 x1574


September 18:

HBA Appellate Practice Luncheon

Prof. Henry J. Abraham (University of Virginia) constitutional scholar to speak on the US Supreme Court. (Tentatively scheduled)

Place: Coronado Club, 919 Milam Street, 5th Floor

Time: 11:30 a.m. to 1:00 p.m.

Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins

CLE Credit: 1.0 hr. participatory credit

RSVP Deadline: Tuesday, September 16, 2008 by NOON

Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000 (Please note the new RSVP contact)

Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.


To have your event added to the Appellate Lawyer calendar, contact us at submissions@hbaappellatelawyer.org. The Appellate Lawyer accepts calendar submissions for appellate court events, HBA Appellate Section events, appellate CLEs, and other events relevant to the appellate community in Houston and surrounding areas.

This calendar is maintained by the HBA Appellate Lawyer and may contain errors. Please contact the relevant party to verify the information provided is correct. If you notice an error, please call it to our attention by contacting us at submissions@hbaappellatelawyer.org.

Current Practices of the First and Fourteenth Courts of Appeals

Editor Beth Crawford, Fulbright & Jaworski L.L.P.


This regularly-appearing column will answer your questions about current practices in the internal operating procedures at the First and Fourteenth Courts of Appeals. I encourage members to submit questions that would benefit the entire Section.

In most cases, this column will address one question per month. I must emphasize that the responses from the Courts relate to their “current” practices. Both Courts continually make changes to address new concerns and experiment with new procedures to improve the operations of the Courts and increase effectiveness and efficiency. The Courts may decline to answer those questions that implicate the confidentiality of the Courts’ inner workings.

Obviously, I could not prepare this column without the willingness of the Courts to participate and answer questions. My very special ongoing thanks to the Chief Staff Attorneys from the First and the Fourteenth, Janet Williams and Nina Indelicato, and to both Courts generally. My objective with this column is to benefit the local appellate bar by providing information that will help us serve our clients better, and benefit the Courts by eliminating phone calls to the clerks’ offices and making operations run more smoothly because the attorneys are aware of the Courts’ expectations and preferences.

Topic 1. Summer Recess

The First and the Fourteenth Courts of Appeals

On the topic of Summer Recess, the answer for both Courts is the same:

Generally, the First and Fourteenth Courts of Appeals do not submit cases for decision during July and August of each year. The Courts use those two months to ready all previously submitted cases for issuance by the end of the Courts’ fiscal year, which is August 31. By legislative mandate, the Courts are required to dispose of as many cases per year as they have filed, and all cases should be disposed of within one year of submission.

However, the Courts continue to submit original proceedings and other time-sensitive cases during July and August. The Courts also continue to issue opinions during July and August.