This article attempts to summarize some of the more recent developments in the last two years in federal practice which have some significance in the area of tort law and product liability. The development covers a wide area of topics, and for the purposes of this article, they are grouped under broad categories.
I. CHANGES IN THE FEDERAL RULES OF PROCEDURE/STATUTES
Eastern District
The Eastern District of Texas is part of an experiment involving the Civil Justice Reform Act. There are significant changes in the local rules that became effective October 27, 1997.
Article 6(9) of the Expense and Delay Reduction Plan adopted by the Eastern District was struck down by the Fifth Circuit. This section allowed an offer of judgment to be made by either the plaintiff or the defense. The rule regarding offers of judgment required that the rejecting party beat the other side's offer by ten percent in order to avoid paying additional costs. Under Ashland Chemical Co. v. Barco, Inc., 123 F.3d 261 (5th Cir. 1997), the Fifth Circuit declared that this provision of the Eastern District's local rules was not authorized by Congress and amounted to an impermissible fee-shifting provision. According to the Fifth Circuit, Congress did not intend to allow the local courts so much control over the amount and nature of attorney's fees to be awarded.
Attorneys' Fees
Avitts v. Amoco, 111 F. 3d 30 (5th Cir. 1997) reversed an award of attorney's fees and costs on a Section 1447(C) remand. The Fifth Circuit ruled that a district court should award only those litigation expenses which were unique to federal court. According to Avitts, a party should not be awarded expenses which would have been incurred if the case had remained in state court.
II. EVIDENCE
The most significant decisions involved the use of expert witnesses.
Expert Witnesses
Watkins v. Telsmith, Inc., 121 F. 3d 984 (5th Cir. Miss. 1997) applied the standards announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 276 (1993) to all scientific testimony. In this case, the Plaintiffs offered the testimony of a civil engineer to prove that a conveyor was defectively designed. The gist of his testimony was that the conveyor was unreasonably dangerous because the conveyor arm was supported by only one wire rope.
The defense moved to exclude the engineer under Fed.R.Evid. 702 on the grounds that he was not a mechanical engineer. The trial court excluded the engineer's testimony.
The Fifth Circuit affirmed the Trial Court's decision to exclude the testimony. The Court recognized that the trial court is given great discretion when acting as a "gatekeeper" in determining the questions of admissibility. The Fifth Circuit rejected the notion that Daubert applies only to "scientific testimony" novel evidence. The Fifth Circuit recognized a split among the various circuit courts of appeals, including the Tenth Circuit's opinion of Compton v. Subaru of America, Inc., 82 F.3d 1513 (10th Cir.), Cert. den., 519 U.S. 1042, 117 S.Ct. 611 (1996). Joining both the 7th Circuit and the 8th Circuit, the Fifth Circuit refused to limit Daubert to unique or novel scientific testimony. Further, the Court declined to hold that technical experts are excluded from the rule.
Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. Tex. 1998) addressed the standards for admissibility of a clinical physician's expert opinion as to the cause of a Plaintiff's disease. In this case, Bob Moore alleged that he contracted reactive airway disease after being exposed to chemical gases while at the Ashland Chemical facility. Causation was proved through two "well credentialed" clinical physicians. One of the doctors personally examined and took a history from the Plaintiff. The other physician "essentially adopted the facts, data, and conclusions" developed by the treating physician. The trial court allowed the treating physician to testify that the Plaintiff suffered from reactive airway disease, but would not allow the treating physician to opine as to causation. Interestingly, the trial court did allow the second, non-treating physician to testify as to both the Plaintiff's current medical condition and causation.
The Fifth Circuit reversed, holding that Daubert applies to "heard scientific knowledge" including "Newtonian science" comprised of knowledge gained through testing and the scientific method. The Court concluded that all "technical or other specialized knowledge is subject to the Daubert criteria."
The Fifth Circuit found that the clinician's expert opinions were well-grounded in principals and methodology of the particular discipline in which he was trained. Because the clinical physician did not use any novel technique, method or principle, the Fifth Circuit concluded that his opinions were "soundly grounded in the principles experience and methodology of his discipline." As such, it was error for the trial court to exclude his testimony.
Spoliation
Gonzalez v. Trinity Marine Group, 117 F.3d 894 (5th Cir. La. 1997) was an employment discrimination case in which the plaintiff secretly tape-recorded several conversations with his (soon-to-be) former employers. The plaintiff was ordered to turn the tapes over to the defendants, but apparently altered the tapes prior to production. The District Court sanctioned the plaintiff by dismissing the lawsuit, but the Fifth Circuit reversed, holding that the trial court had other, less draconian options available. The Fifth Circuit suggested that the District Judge merely inform the jury that the tapes had been altered while in plaintiff's possession.
III. INSURANCE POLICIES
There were several cases interpreting Texas insurance policies. One example, Sharp v. State Farm Fire and Cas. Ins. Co., 115 F.3d 1258 (5th Cir. 1997), is a case where the insured sued State Farm after they were denied compensation under their homeowner's policy. The structural and cosmetic damage to their home resulted from a foundation shift caused by a plumbing leak beneath the house. The Fifth Circuit held that the language in the policy attempting to eliminate coverage for foundation and structural damage caused by "accidental discharge" did not exclude coverage for damage resulting from a plumbing leak.
IV. GOVERNMENTAL CLAIMS
In Rodriguez v. Sarabyn, 129 F.3d 760 (5th Cir. 1997), an ATF agent sued the United States, the ATF, and several other ATF agents for allegedly tortious statements made to the media relating to the raid of the Branch Davidian compound in Waco. The Court of Appeals determined that the Westfall Act shielded the ATF agents from liability for the allegedly defamatory statements because the statements were made within the scope of their employment, even if made to deflect scrutiny from themselves.
V. MISCELLANEOUS CAUSES OF ACTION
Rodriguez v. Sabato, 120 F.3d 589 (5th Cir. 1997), Cert. Den., 118 S.Ct. 1511 involved the duties owed by a security guard at a social event. The Mora's hosted a quincinera at a public civic center in Houston. The Mora's admitted sneaking beer to an underage guest by the name of Sanchez during the celebration. The official party ended around midnight, but some guests, including Sanchez, returned to the hosts' home. The guests continued drinking at the Mora's home until they left around 2 a.m. At about 4:30 a.m., Sanchez drove into the underside of a highway overpass in a single vehicle accident. Only one passenger survived. The hosts were charged with making alcohol available to minors.
Suit was filed against the security guard who was hired to provide security for the quincinera while it was at the civic center. The Fifth Circuit declined to impose liability on the guard because she had been hired only to patrol the parking lot to prevent auto theft and vandalism.
Frank L. Branson is currently with the Law Offices of Frank L. Branson, P.C., a personal injury trial firm in Dallas. He received his Juris Doctorate and Masters of Law in Legal Medicine from Southern Methodist University. He is the Past President of the Southern Trial Lawyers Association, Dallas Trial Lawyers Association, and the Dallas Chapter of the American Board of Trial Advocates. He is also former Dean of the American Trial Lawyers College of Medical Malpractice, Director Emeritus of the Texas Trial Lawyers Association, a former member of the ATLA Board of Governors, a former member of the Board of Governors of Southern Methodist University, a Director of the Attorneys Information Exchange Group, a Director of the Institution for Injury Reduction, a member of the International Academy of Trial Lawyers, and a Master of the American Inns of Court.
He is a contributor to the Audio Tape Series on Million Dollar Jury Argument, the Matthew Bender Videotape Series, Cross-Examination of the Defendant in a Medical Malpractice Case, and the ATLA videotape series.
Frank L. Branson has been actively engaged in the personal injury liability field for over a quarter of a century.