Frivolous lawsuits aren’t always the result of suits being filed, but often times are due to the defense of claims and it isn’t just in civil cases. This is a long blog and I apologize but I think the background is important. Let me start today and go back (with jumps around as I am prone to do).
I have experienced this personally as an attorney in cases. One happened when a driver was passing when unsafe hits a car head on and kills the other driver. The Defendant denies it was his fault and makes the family file a lawsuit to recover their damages. Jump ahead to trial and jury returns a judgment against the driver and company and they appeal – so the case continues. Did the Defendant have a right to deny the claim and force the family to go through a long trial and now appeal when all the evidence was that he caused the wreck? Sure. Should he have done so and put the family through the additional pain of a trial is the real question.
I have now experienced it on a personal level as well in a criminal (really just traffic tickets) case as set out below. The question again is just because you can deny and defend a claim should you? Just because you have a right does not mean you do not have choice not to exercise that right to prevent more harm.
Today I was supposed to be in Maryland to attend a traffic ticket trial. The trial was related to the woman who hit and killed my sister in law on August 21, 2013. Trish’s daughter Morgan started a petition at https://www.change.org/petitions/richard-a-simmons-whitney-decesaris-reconsider-contesting-whitney-decesaris-traffic-citations requesting the Driver and her attorney reconsider contesting the traffic tickets she was issued. I signed it and posted it on Facebook and within a couple of days it disappeared from my Facebook account as well as others who had posted it. Not sure why.
Here is a little background on the case. Trish was hit and killed while riding her bike outside Annapolis Maryland. She was wearing all appropriate safety equipment riding on the right hand side of the road. She was hit from behind in a no passing zone on a road with a gradual incline with a clear line of sight of almost ¼ mile. There is a lot more evidence regarding the actions (or lack of action) of the driver which need not be addressed here. The State’s attorney chose to send the case (a misdemeanor) to a Grand Jury rather than charge her. As you may know the only one presenting evidence and choosing what evidence and witnesses to present (or not present) to the Grand Jury is the State’s Attorney. The Grand Jury decided that the Driver would be issued 4 tickets. The family thought that would be the end of the story and she would pay the tickets. The Driver’s last name is Decesaris which meant nothing to me until I realized it is also the name on a Cancer Research Building and Foundation for Cancer Research. As I understand they are great charities and ironically on July 1st 2013 their dpcancerfoundation.org website had news of a Davidsonville cyclist going 1,500 miles “through the winding country roads” to raise money for cancer research. So about 50 days before Mrs. Decesaris strikes and kills a biker, the foundation that bears her family name is proud of a biker who generated money for their foundation by riding the roads. Irony is alive and well. If you are riding to benefit the foundation it is great. If you are riding not to benefit us – you shouldn’t be on the road at least if you are hit and killed by one of our family members.
The internet is an amazing thing where people can post all kinds of “information” and “facts”. The how’s and why’s of the crash that killed Trish will be debated and discussed forever because some people believe bikes should never be on any road and if they are it’s their own fault, despite the law. Some comments made on various websites and blogs have stated this in much more direct terms such as bikers deserve what they get if they choose to ride on roads. So we have a group of people who have some people who have decided that that law doesn’t apply to them as it relates to protecting bikers, but strongly support the law that allows them to defend themselves when the hit someone on a bike.
The petition is requesting the Defendant in the case to consider just paying the tickets without causing the family even more harm – just because you can. To those who will respond with it is everyone’s right to contest a claim or charge you are correct. But those people I ask are you going to defend everyone who brings a lawsuit no matter how stupid you think it is and argue that they should have their day in Court? A lawyer is not a bus. As a lawyer you do not have to take every case that comes in your door, nor should you. Just because you can defend a person doesn’t mean you have to and part of having a right is the ability to choose not to exercise it just because you can.
If the driver in my sister-in-laws case chooses to continue to fight the tickets – I will defend her right to do so but I will not defend her choice to do so.
If you would consider signing the petition I would appreciate it. If you have comments, let me hear them.
It is fitting that early voting for the party primaries begins right after Valentines because it seems that some candidate’s whole campaign is essentially – I love you best. I will be the toughest on crime, I believe in same sex marriage, I will stop frivolous lawsuits, I will make sure to protect “x” or protect you from “x” … (fill in the blank) because I’m I your guy/girl. Really! Believe me.
Here is who I am supporting in the contested repbulican judicial races, D.A., and the race for district clerk:
Chief Justice, Supreme Court: Robert Talton
Justice, Supreme Court, Place 6 Jeff Brown
Justice, Supreme Court Place 8 Sharon McCally
Justice 1st Court of Appeals, Place 3 Dan Linebaugh
District Judge 268th Brady Elliott
District Attorney John Healey
County Court at Law #1 Chris Morales
County Court at Law #4 R. H. “Sandy” Bielstein
District Clerk Annie Rebecca Elliott
I haven’t listed the Court of Criminal Appeals as I do not practice before them, but welcome suggestions from my friends who are prosecutors and defense attorneys.
So how do you know who to vote for even in your own party? Here are some suggestions:
First: Ask attorneys who practice before the Judges and Justices and who have to deal with the clerks on a weekly basis. These are people who have a working knowledge of what is good and/or bad and deal with the consequences of both. They should be able to tell you who they would support and why.
Second: Read their propaganda (I mean mailers). Any decent ones are going to list the candidates’ accomplishments and biography. Here is what sends up red flags for me. Any candidate who touts that they are going to be tough on criminals, get rid of frivolous lawsuits, be more republican or democratic than their opponent, etc., etc. I know that political parties are a necessity for the backing and support of candidates (including judges and clerks) but I want an elected official who is fair to all.
I want a judge who is going to have one job and that is to enforce the laws as they exist and treat everyone equally. I want a judge who believes in the innocent until proven guilty and not one who brags about putting people in jail or being tough on crime.
If you enforce the law then usually the right thing happens, if you have an agenda then run for congress and not the bench.
I want a clerk who makes the filing and handling of document for litigation as easy as possible and is helpful when you have questions.
I believe the people who I support are the best choice for the job.
To answer a question that some will undoubtedly ask: Are you supporting the judges because they rule for you? No. In fact one of them, despite my brilliant argument, ruled against me on every motion I had recently before the Court.
I support these individuals because I have practiced before them, seen their work, read their opinions (or those of whom they are running against) and want the best judicial branch of the government we can get. I want a judiciary which treats everyone as equal and not as a statistic to appease their supporters and donators.
I know some of you are like me who have trouble e-filing. Whether it be do to the technology, costs or otherwise it is here and we will have to deal with it. Fort Bend District Clerk, Annie Rebecca Elliott is doing everything she can to make the transition smooth. The new eFiling portal is called TexFile. If you have been using Texas.gov it will cease and not be available after November 25, 2013. Here is some additional information from our District Clerk:
In an effort to make this transition as smooth as possible, our office will be simultaneously accepting eFilings via the TexFile portal and Texas.gov until November 25, 2013. We strongly encourage filers to start using one of the Electronic Filing Service Providers (EFSP) certified by the OCA (LINK) to accept filings through the TexFile portal prior to that date. This will allow my office to assist with any technical problems that may arise as Texas.gov will cease to exist after November 25, 2013.
In order to submit eFilings via the TexFile portal, your firm must choose and register with an EFSP. Once an EFSP has been chosen, please visit their website for specific instructions/FAQ’s.
There are certain business processes specific to the Fort Bend County District Clerk’s Office that will need to be followed in order to ensure that your filings are transmitted successfully. The District Clerk E-Filing Business Process – Frequently Asked Questions are available for your review at the following LINK.
If you have any questions or need further assistance, just give us a call at (281) 633-7630 or (281) 341-4509. We will be happy to visit your office, assist you through the process and answer any questions you may have along the way.
The best news about this is the Fort Bend District Clerk is great about helping you with the transition to eFiling. Did you read the last sentence above–They will come to your office to help you learn the process. That’s right your office. Now that’s service.
A war on women seems to be the preferred catch phrase for any limitations whatsoever on abortion. The cry of it’s a choice and the woman’s body so she should decide is compelling, but for the fact it leaves out the fact that her choice could take the life of a child who is not given a choice in the matter (what if the baby was a girl – is it then a war on future women?)
The latest great cry and outrage is over Texas HB2 which depending on your interpretation is a ban on abortion (it is not) or nothing more than lip service for those wanting a ban on abortion (it is not that either). What it is in my opinion is something which has been needed for some time, minimal regulation and implementation of safety requirements to protect women.
The argument is sure to be made that I am a man (true) and a catholic (also true) so I can’t possibly have any real input into the discussion. I guess that would be the same as only gun owners (yes to that as well) are able to discuss gun rights and regulations. It seems that there is a great uproar over things that need to be regulated (guns, sodas, smoking, light bulbs, religion, energy, etc., etc.) but the health and safety of not only a baby, but as importantly the health and safety of the mother is what creates an uproar. WOW!
So what does this draconian bill do? In essence two earth shattering regulations (tongue firmly in cheek):
1st: Restrict elective abortions at 20 weeks or later, but there are exceptions: The Act does not apply to abortions that are necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman or abortions that are performed on unborn children with severe fetal abnormalities.
2nd: Requires that the physician performing or inducing an abortion:
a. must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
1. is located not further than 30 miles from the location at which the abortion is performed or induced; and
2. provides obstetrical or gynecological health care services; and
b. shall provide the pregnant woman with:
1. a telephone number by which the pregnant woman may reach the physician, or other health care personnel employed by the physician or by the facility at which the abortion was performed or induced with access to the woman’s relevant medical records, 24 hours a day to request assistance for any complications that arise from the performance or induction of the abortion or ask health-related questions regarding the abortion; and
2. the name and telephone number of the nearest hospital to the home of the pregnant woman at which an emergency arising from the abortion would be treated.
BUT WAIT– there is a global get out of regulation free exception:
The prohibitions and requirements do not apply to an abortion performed if there exists a condition that, in the physician’s reasonable medical judgment, so complicates the medical condition of the woman that, to avert the woman’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function, other than a psychological condition, it necessitates, as applicable:
(1) the immediate abortion of her pregnancy without the delay necessary to determine the probable post-fertilization age of the unborn child;
(2) the abortion of her pregnancy even though the post-fertilization age of the unborn child is 20 or more weeks; or
(3) the use of a method of abortion other than a method described.
So the big uproar is over not allowing abortions after 20 weeks. Not being good with math, I got out my handy dandy calculator and determined that is five months. That seems like a long time to wait to have an abortion especially when that is on the brink (or over it in some instances) of viability of the baby if delivered.
The other big issue is the requirement that the doctor have hospital privileges at a hospital not further than 30 miles away that provides OBGYN services; provided a phone number for the woman to call if complications and the name and number of the nearest hospital to her home if an emergency arise.
I would think that would be something that everyone would support. The risk, no matter how small that something could go wrong and could endanger the life of the mother should be reduced as much as possible. Having these requirements seems like common sense and the fact that they didn’t exist before would seem to be something more in the lines of a war on women in that they aren’t protected in case something were to go wrong. Now that safeguards are in place there is uproar over the restrictions on the right to abortion. Without even getting into the “right” what about the right to have a safe procedure and the right to have a safety net is something goes wrong? In most things in life those fighting regulation and change are not the people we see on the news – gun owners, single mothers, etc., but the companies that stand to lose millions of dollars if regulations are passed. Follow the money and the war on women will really lead to a WOW moment.
Texas Senate Bill 303 – allows hospitals to impose “do not attempt resuscitation” (DNAR) orders against patients without their consent and even without their knowledge, passed the Texas Senate today despite opposition by the Association of American Physicians & Surgeons (AAPS) and by virtually every other leading pro-patient group.
Our Senator Glenn Hegar opposed this Bill. Here is a summary of what the bill does:
1. Allows hospitals to issue a “Do not attempt Resuscitation” (DNAR) and other power to impose denial-of-care directives, against patients without their consent and without even giving them written notice.
A. This would put the burden on the patient or family member to find out if the hospital plans to deny care.
B. The bill further makes a verbal objection by the patient or family member insufficient or not effective. This requires the patient or family member to file a written objection, and even then a hospital death panel can overrule the patient and/or families wishes and reject the objection refusing to abide by their wishes regarding their own family member.
2. Grants hospitals the power to withhold medical records from patients for five (5) days as time-sensitive life-or-death decisions are being made. This will create a situation whereby when you or your family need the information the most to make an informed decision, the hospital can refuse to provide you your own records.
3. Grants hospitals the right to deny the ability of independent patient advocates to speak on behalf of a patient and defend the patient’s interests, and instead limit patients to hospital-chosen patient advocates. The same hospital which denies you your records and issues a DNAR order over your objections gets to select who is going to speak on your behalf. Does anyone else see a problem with that?
4. Grants hospitals the power to create their own death panels, stacked with their own employees, to make “ethics” decisions to deny care to patients. Ok, they will probably call them something like medical ethical advisory panels or something similar, but again it is the same hospital which has the power to do 1-3.
5. Grants hospitals the power to transform physicians from being advocates of patient care into becoming adversaries of patients in implementing denial-of-care decisions based on hospital policies.
6. Limit patient options to a request for transfer of the patient to another hospital, at the patient’s own expense and without any guarantee that the other hospital would not also use this law against the patient. This ignores that tax-exempt hospitals have a duty to act in the best interests of patients rather than the self-enrichment of multi-million-dollar compensated hospital administrators. Also you have the issue of not being able to get the necessary medical records.
7. Grants hospitals complete immunity from legal accountability for denying care under most circumstances. You wouldn’t want to have the hospital having to answer to their actions in violating a patients or families rights and wishes regarding their care.
The bill does not establish a right to a second independent opinion; the second opinion which is discussed under this bill will typically be to another hospital employee controlled by hospital policy.
The end result of this bill would be to create death panels which would determine whether you or a family member lives or dies and prevents you from having access to the very medical records which would provide you information to make an informed decision. This bill is all about the profit over people.
Senator Hegar made the following response when asked why he voted against SB 303:
“This bill leaves potential for the burden to be placed on grieving families due to the subjectivity of the physicians.”
What are your thoughts about this bill?
Texas requires an expert report in a health care liability claim. Under Chapter 74 a claimant shall provide the other side expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
So what is a health care liability claim, well according to the Texas Supreme Court, an assault is a health care liability claim which requires the filing of an expert report defining the action and breach of health care. (Texas West Oaks Hospital, LP v. Williams, 371 S.W. 3d 171) A slip and fall on wax in the Lobby of the hospital by a person who was leaving after visiting a patient is a health care liability claim according to the 14th Court of Appeals in Ross v. St. Luke’s Episcopal Hospital. Both of those cases determined that an expert report detailing the violation of standard of health care standards was required. Both cases were lost due to the lack of an expert report.
I can see it now on Saturday Night Live, a surgeon is giving his expert opinion on the health benefits of buffing wax in a clockwise vs. counter-wise motion. I’m sure doctors have nothing better to do than to be sued and deposed over how the cleaning staff applied the wax to the lobby floor. Apparently the Supreme Court values doctors’ time and education at the level of floor cleaning because according to them that is a health care issue. As it currently stands, it appears that the only people who are exempt from this insanity are the people who are actually working in the facility (patients and even visitors of patients have been determined to be seeking the health benefits of getting assaulted or learning the health benefits of improper wax application). I believe the staff, employees and doctors of a hospital or medical facility would not be subject to this insanity if they were injured in a slip and fall as they would not be claimants under the construction of the Act.
So what is the solution (other than to have the legislature inform the Supreme Court that they have lost their minds if they think a slip and fall case is a health care claim)? Who would even be qualified to present an expert report that would meet the requirements under Chapter 74 (Health Care Liability Claim)? I don’t want my doctors spending their time on the health benefits of wax, coefficient of friction of various waxing compounds and how that impacts the health care of anyone. I can see a situation where a person injured by a simple slip and fall or other basic negligence act in a medical facility will have to sue every medical provider under the reasoning of the Court. If applying wax to the floor is a health care issue then who is responsible for the decision as to the medical standard of care for applying the wax, your doctor, the nurse, the doctor who was a consultant or gave a second opinion and how can you possibly even meet the standard to provide a report if no one is qualified to provide one.
Here is a solution that seems to have eluded our Texas Supreme Court – common sense. A slip and fall is a slip and fall not a medical malpractice case which requires doctors to be sued and waste their time responding to a lawsuit because of the actions of a cleaning service and interpretation by the Texas Supreme Court that it is a health care claim. Since the Court has gone down this path, it appears the only hope for common sense will be from the legislature to explain that claimant means a person who was harmed while receiving health care, not for walking on the floor. Hopefully this will happen before more cases are dismissed for not providing expert reports which are impossible to obtain, before doctors are sued and their time wasted due to a ruling which everyone (other than the Supreme Court and insurance companies for the hospitals) understand is crazy.
New Rules from Texas Supreme Court
As of March 1st we will have a few new rules impacting civil cases in Texas, but in an on-going practice the Supreme Court has decided to make the rules and decisions retroactive by adding the language under paragraph #3:
“Rule of Civil Procedure 91a and Rule of Evidence 902(10)(c) apply to all cases, including those pending on March 1, 2013.” (emphasis added).
Rule 169 and amendments to TRCP 47 and 190 apply to cases filed on or after March 1, 2013.
What are these rules and what do they mean for those of us who actually try cases.
We need to understand the rules to get a good handle on what they mean to our cases currently filed and those to be filed on or after March 1st. First up: Rule 91a. Skip over the fact that we have had rules to handle baseless causes of action for about as long as Texas has been around, let’s see what it does (I have summarized what I believe are the key parts):
Rule 91a Dismissal of Baseless Causes of Action
91a.1 A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.
A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought.
A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
91a.2 The motion must state:
- That it is made pursuant to this rule;
- Must identify each cause of action to which it is addressed; and
- Must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.
91a.3 The motion must be filed:
- Within 60 days after the first pleading with the challenged cause of action was served on movant;
- Filed at least 21 days before the motion is heard; and
- Granted or denied within 45 days after the Motion is filed.
91a.4 Response to Motion must be filed no later than 7 days before hearing.
91a.5 If the Movant files a withdrawal of the motion or the respondent files a nonsuit of the challenged cause of action – The court may not rule on the motion to dismiss.
If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant before the hearing date may file a withdrawal of the motion or an amended motion directed to the amended cause of action.
Except by agreement of the parties the Court must rule on a motion unless it has been withdrawn or nonsuited.
Any amended motion restarts the time periods.
Each party is entitled to at least 14 days’ notice of hearing;
The court may (not required) to have oral hearing;
Court may not consider evidence in ruling on motion and must decide motion based solely on the pleadings.
91a.7 Attorney Fees and Cost of Court – Required
The Court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees. The Court must consider evidence regarding cost and fees in determining award (only evidence allowed).
91a.8 No impact on Special Appearance or Motion to Transfer Venue
91a.9 Rule is in addition to other procedures that authorize dismissal.
So if you file a Motion under rule 91a someone is going to be paying attorney fees and costs. I find it hard to believe that someone would file a pleading that would meet the requirements to dismiss a claim under this section.
Rule 47 Amended:
Now any pleading claiming damages must include (everything as before) and the following:
A statement that the party seeks:
- Only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or
- Only monetary relief of $100,000.00 or less, and non-monetary relief, or
- Monetary relief over $100,000.00 but not more than $200,000.00; or
- Monetary relief over $200,000.00 but not more than $1,000,000.00; or
- Monetary relief over $1,000,000.00
A party that fails to plead one of the above amounts may not conduct discovery until such is amended to comply.
Rule 169 Expedited Actions:
Apply to all claimants (not counter-claimants) that only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.
Does not apply to Family Code, Property Code, Tax Code or Chapter 74 actions.
If you fall under this section you may not recover more than $100k, other than post-judgment interest.
Removal the Court from Expedited Process:
The Court must remove case from process:
- On motion and showing good cause by any party; or
- If any claimant seeks any non-monetary relief
A pleading (amended, supplemental) that would remove the suit from the expedited process may not be filed without leave of the Court unless it is filed before the earlier of 30 days after discovery period is closed or 30 days before the date set for trial.
If suit is removed from the expedited process the court must reopen discovery under Rule 190.2(c).
Expedited Actions Process
Discovery – Rule 190.2
- Discovery period begins from date suit is filed until 180 days after first request for discovery is served on any party.
- Depositions – No more than 6 hours for examination and cross in oral depositions. Parties may agree to expand limit to 10 hours. Court may modify deposition hours.
- Interrogatories - No more than 15 served on any party, other than asking to identify or authenticate specific documents.
- Request for Production - No more than 15 served on any party.
- Request for Admissions- No more than 15 served on any party.
- Request for Disclosure- In addition to those under 194.2 a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support it claims or defenses.
(If a case is removed from the expedited process, the discovery period reopens and discovery must be completed under 190.3 or 190.4 whichever applies. Any person previously deposed may be redeposed.)
The Court must set the case for a trial date that is within 90 days after the discovery period ends. The Court may continue the case twice, but not to exceed a total of 60 days.
Time limits for Trial:
Each side is allowed no more than 8 hours from jury selection through closing. On motion and showing of good cause the court may extend it to a maximum of 12 hours per side. (Time spend on objections, bench conferences, bills of exception and challenges for cause to a juror are not included in the time limit.)
The court may refer the case to ADR once (unless the parties have agreed not to) the procedure must:
- a. Not exceed a half day;
- b. Not exceed a total costs of 2x applicable filing fees;
- c. Be completed no later than 60 days before trial setting.
A party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule166a or during the trial on the merits. Does not apply to motion to strike for late designation.
Medical Records Affidavit are now under TRE 902(10)(c) which is the approved form for a prima facie proof of medical expenses by affidavit post Haygood v. Escobeda.