In this edition of Litigation Roundup, a jury in Austin determines a company that makes synthetic turf fields “fraudulently concealed” material defects in the product and awarded an injured former high school lacrosse player about $2.7 million, and we detail two cases involving issues of first impression.
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know at tlblitigation@texaslawbook.net.
Texas Business Court
Energy Transfer Sues ExxonMobil Over Pipeline Dispute
Energy Transfer is seeking the Texas Business Court’s assistance in resolving its dispute with ExxonMobil and protecting its joint venture from “further needless harm.”
According to the lawsuit filed in June and assigned to Judge Sofia Adrogué, Energy Transfer and Exxon entered a joint venture called Permian Express Partners in 2017 to own and operate several pipeline systems between Longview, Texas, and Anchorage, Louisiana.
For nearly a decade, the parties have profited from the joint venture. Exxon recently informed Energy Transfer that it intends to stop using the pipeline in 2027.
“An unused connection — known in the industry as a ‘dead leg’— adds costs and creates potential pipeline integrity and safety hazards for the system,” the lawsuit stated.
Energy Transfer told the court it unsuccessfully tried to reach a deal with Exxon for continued delivery of oil to the Exxon Anchorage refinery and argues that disconnecting the Anchorage facility is a “fundamental change” in Permian Express that requires unanimous approval of its board of managers under the terms of the agreement.
Attorneys for Exxon have not filed appearances.
Permian Express Partners and Energy Transfer are represented by Paul Yetter, Robert Woods, Mollie Bracewell and Daisy Gray of Yetter Coleman.
The case number is 26-BC11A-0071.
Alexa Shrake contributed this report.
Harris County District Court
Haynes Boone Team Gets Directed Verdict for ExxonMobil
Last week, a jury in Houston that heard testimony in a lawsuit accusing ExxonMobil of responsibility for damaging a residential home following a fire and explosion at its Baytown refinery did not get to decide the case.
Harris County District Judge Tamika Craft-Demming issued a directed verdict win for the company at the close of the plaintiff’s case, finding there was not enough evidence to establish causation or liability. Michael Szumski filed his lawsuit in December 2023, alleging his home, which is directly across Texas Highway Spur 330 from the Baytown plant, suffered foundation damage because of the explosion.
The explosion, which happened early in the morning of Dec. 23, injured four people and a related fire burned for nearly eight hours.
Exxon is represented by Lauren Brogdon, Morgan Haenchen, Chloe Warnberg and Sarah Hudson of Haynes Boone.
Brogdon, who led the trial team, praised the ruling in a statement.
“This ruling reinforces a fundamental principle of our legal system: liability must be established through reliable evidence,” she wrote. “We’re proud to have secured this result for ExxonMobil after demonstrating that the plaintiff failed to meet the legal burden required to proceed.”
The homeowner is represented by Alfred M. Benoit of Houston.
The case number is 2023-87394.
Travis County District Court
Jury Awards $2.7M in Synthetic Turf Injury Case
A jury in Austin, Texas, recently determined that a high school lacrosse player who suffered two ACL tears in three years was entitled to about $2.7 million in damages from the company that manufactured the synthetic turf field he played on.
Jake Austin Guarino filed his lawsuit in April 2018, blaming FieldTurf for the series injuries he suffered in 2013 and 2016 on the field at Vandegrift High School’s Monroe Stadium. FieldTurf manufactured and sold the playing surface that was installed in 2009. Guarino underwent multiple surgeries as part of his recovery, and jurors were told he will require “significant treatment” in the future to avoid further injury.
Before the jury got the case, Guarino’s lawyers at Beck Redden secured key pretrial rulings, including spoliation sanctions against FieldTurf or failing to preserve the field. Team also defeated four mandamus petitions.
The jury began deliberating the morning of July 1 and returned its 10-2 verdict around 2 p.m. July 2, according to court documents, finding there was a manufacturing defect in the synthetic turf field “at the time it left the possession of FieldTurf.
The jury answered “no” to whether there was a design defect in the product. The panel apportioned liability for the incident as 30 percent for Guarino and 70 percent for FieldTurf.
FieldTurf “fraudulently concealed” the material defects, the jury also found, and awarded Guarino $2.36 million in damages for past and future medical care, pain and impairment. When prejudgment interest is added to the damages amount, the award totals about $2.7 million.
Travis County District Judge Catherine A. Mauzy presided over the case.
Guarino is represented by Troy Ford, Jackie Furlow, Cassie Maneen, Kelsey Eyanson, Nicholas Bruno, Elisabeth Butler and John Adcock of Beck Redden.
FieldTurf is represented by Douglas Dubois of Richmond National, Joshua Bennett of BakerHostetler and Bijan Siahatgar and John Spiller of Clark Hill.
The case number is D-1-GN-18-001690.
Western District of Wisconsin
Texas Ag Construction Co. Prevails in H-2A Visa Class Action
Signet, a Texas-based company that specializes in agriculture construction services, received a summary judgment win in Wisconsin June 26 in a Fair Labor Standards Act case involving overtime pay for foreign workers with visas for temporary agriculture work.
Lead plaintiff Jose Ageo Luna Vanegas filed his lawsuit in January 2021, seeking overtime pay for himself and others similarly situated who performed work building commercial egg production housing for hens in Wisconsin.
The case was assigned to U.S. District Judge James D. Peterson, who wrote in granting Signet summary judgment that the work the plaintiffs were seeking overtime for fell under an FLSA exemption for agricultural work.
The ruling means Signet can continue to use the H-2A visa program for workers constructing livestock facilities. The plaintiffs had argued the work should fall under the H-2B visa program, which falls outside FLSA’s agricultural exemption.
The CEO of Signet issued a statement after the ruling.
“This case was never about avoiding our responsibilities as an employer. It was about protecting the ability to provide American agriculture with a reliable, skilled workforce while preserving meaningful opportunities for the people who make our work possible,” Greg Schonefeld said. “Many of our H-2A employees have been with us for years, and agricultural producers across the industry stepped forward in support because they recognized what was at stake — not only for Signet, but for the farms and contractors that rely on this workforce every day.”
Signet offered, and on June 27 the plaintiffs’ accepted, an offer of judgment that would pay out between $42,000 and $62,000 each to five named plaintiffs and $528,154 in attorney fees. A judgment to that effect, allocating a total of $800,000, was entered by the court July 2.
The plaintiffs are represented by Daniel Bonnett, Jennifer Kroll, Michael Licata, Susan Martin and Andrew Kendall of Martin & Bonnet, David Zoeller and Natalie Gerloff of Hawks Quindel and Edward Tuddenham of New York.
Signet is represented by Daniel Pipitone, Emily Means, Bayley Estep, Michael Harvey and Nolan Knight of Munsch Hardt Kopf and Harr.
The case number is 3:21-cv-00054.
Appellate Court of Illinois, First District
Panel Affirms DOBS’ $45M Mesothelioma Win
A $45 million jury verdict rendered after a four-week trial in April 2024 in favor of the family of a woman who alleged Johnson & Johnson baby powder caused her mesothelioma has been upheld on appeal.
The suit was brought on behalf of Theresa Garcia, a mother and grandmother who was a lifelong user of J&J’s baby powder. The jury heard she frequently used the product on herself and her six children and was diagnosed with mesothelioma in January 2020 when she was 52.
She died six months later. The lawsuit named as defendants Johnson & Johnson, Johnson & Johnson Holdco and Kenvue. The jury held Kenvue 70 percent responsible and Johnson & Johnson and Johnson & Johnson Holdco each 15 percent liable.
Justices Michael B. Hyman, Aurelia Pucinski and Celia Gamrath sat on the panel that issued the July 10 opinion.
Justice Gamrath dissented in part, writing she disagreed with the majority’s recognition of the shortened life expectancy damages.
“Here, the jury awarded $30 million in survival damages for 30 years of life Garcia never lived, in addition to $12 million for her wrongful death,” she wrote. “The majority’s decision will now turn shortened life expectancy damages into a routine component of every survival action paired with a wrongful death claim. If Illinois is to adopt this sweeping expansion of survival recovery, it should come from our supreme court or the general assembly.”
The Garcia family is represented by Lisa Shirley, Jessica Dean and Trey Branham of Dean Omar Branham Shirley.
“This is an important victory for our client and for families seeking accountability from corporations that attempt to avoid responsibility through corporate restructuring,” Shirley said in a statement. “The appellate court carefully considered each of Johnson & Johnson’s arguments and affirmed the judgment in its entirety.”
Johnson & Johnson is represented by Johnson & Bell of Chicago.
The case number is 242199.
Fifth Court of Appeals, Dallas
Lisa Blue, Arnold & Itkin See Client’s Injury Suit Revived on Appeal
Because a construction worker who filed a personal injury lawsuit after suffering serious chemical burns on the job met the fair-notice pleading requirements, his lawsuit against Hutchinson Construction should be revived, an appellate court determined July 7.
A trial court had wrongly granted a Rule 91a motion to dismiss Jesus Garcia’s lawsuit, the 18-page opinion held. Garcia suffered his injuries in March 2023 and filed suit against a handful of defendants, including Hutchinson. Garcia alleged Hutchinson failed to adequately clean a storm pipe and ensure the area where he worked in was free from chemicals.
Hutchinson, in seeking dismissal, argued it did not own, operate or manage the site where the incident occurred and that Garcia’s claims had no basis in law or fact. Dallas County Court-at-Law No. 5 Judge Nicole Taylor granted Hutchinson’s motion March 17, 2025.
But the appellate court found Garcia’s claims have a basis in fact.
“The original petition reveals no basis to conclude that no reasonable person could believe the facts pleaded,” the opinion reads. “Thus, to the extent the trial court granted the motion to dismiss on this basis, it was error.”
Hutchinson had argued Garcia’s petition didn’t provide it fair notice of the claims because it contained only legal conclusions without facts to support those conclusions. The panel wrote that while the petition could have been more detailed, it met the minimum requirements to avoid 91a dismissal.
“Limiting our review to the petition as we must and accepting as true the factual allegations in the pleading, as referenced above, together with inferences reasonably drawn from them, we cannot say that Garcia’s claims are legally impossible or lacking the “essential factual allegations” in support of his theories,” the panel held.
Justices Dennise Garcia, Nancy Kennedy and Jessica Lewis sat on the panel.
Garcia is represented by Jason Itkin, Cory Itkin, Brian Christensen and Alexanda Poulson of Arnold & Itkin and Lisa Blue of Baron and Blue.
Hutchinson is represented by Cassie J. Dallas and Ryan M. Owen of Thompson, Coe, Cousins & Irons.
The case number is 05-24-00863-CV.
Eleventh Court of Appeals, Eastland
In Case of First Impression, Panel Ends Ranch Hand Wrongful Death Suit
Interpreting the scope of certain provisions of the Liability Arising from Farm Animals Act for the first time, the Eastland Court of Appeals this month brought an end to a lawsuit brought by the family of a ranch hand who died in an incident involving a hydraulic squeeze chute.
According to the opinion, Richard Poteet was a ranch hand at the Kinnibrugh’s ranch for 11 years prior to his death when his head was crushed by the release of the hydraulic chute’s side panels. The equipment is used to hold cows still while shots are administered.
His wife, Linda Poteet, filed a wrongful death lawsuit against the Kinnibrughs. The Kinnibrughs argued that the LAFAA barred the claims.
The trial judge found the act did not apply in this case because Poteet’s death “was not caused directly by the actions of an animal.”
“As relevant here, the Act provides that, subject to certain exceptions, all persons, including a farm owner, lessee, or livestock producer, are not liable for the death of a participant in a farm animal activity if the participant’s death results from the dangers or conditions that are an inherent risk of a farm animal, a farm animal activity, or the raising or handling of livestock on a farm,” the appellate court wrote.
The panel determined the “plain and unambiguous text of the controlling statute conflicts” with the trial court’s ruling.
“So, despite the trial court’s ruling, the statutory text clearly encompasses the separate and distinct risks that are inherent in ‘a farm animal activity’ and the ‘raising and handling of livestock on a farm,’ in addition to those that are simply associated with ‘a farm animal,’” the panel wrote.
Chief Justice John M. Bailey and Justices W. Stacy Trotter and Bruce Williams sat on the panel.
The Kinnibrughs are represented by J. Landon K. Schmidt and Michael L. Byrd of Michael L. Byrd & Associates.
The Poteets are represented by Kristen LaFreniere and David LaFreniere of Vander-Plas LaFreniere.
The case number is 11-25-00081-CV.
U.S. Court of Appeals for the Fifth Circuit
Panel OK’s Toss of Products Liability Suit in Scalding Water Injury Case
A man who suffered serious burns when water that was 200 degrees poured into truck cabin where he sat cannot proceed with his products liability claims against three defendants, the Fifth Circuit determined this month, upholding an earlier summary judgment win issued by U.S. District Judge Drew B. Tipton.
James George had filed suit against SI Group, Brenner Tank Services and Bulk Solutions following the 2016 incident. According to court documents, the hot water tanker was called in to wash one of SI Group’s chemical tanks.
During the process, according to the opinion, the truck where George was sitting was left on gravel “without putting down any mats under the landing gear or closing the hatch on top of the trailer.”
“Within minutes of the tanker trailer being set down, one of the legs of its landing gear sank into the gravel and the trailer tipped over, dumping scalding water through the open window of the vacuum truck,” the opinion reads. “George jumped out of the window and was taken to the safety shower and then to the hospital.”
George originally brought claims in state court, but SI Group removed the case to federal court. George lodged premises liability claims against SI Group and products liability claims against Brenner and Bulk.
“The record shows that the risk of dropping the tanker trailer on its landing gear on a gravel surface without any sort of stabilizing matting would be commonly known and obvious to foreseeable users,” the panel wrote.
The panel agreed with Judge Tipton’s analysis that “even if the trailer’s design was defective, it was not the producing cause of George’s injuries.”
Judges Catharina Haynes, Stephen A. Higginson and James C. Ho sat on the panel that issued the July 9 opinion.
George is represented by Roland Christensen of Arnold & Itkin and Owen McGovern of Beck Redden.
SI Group is represented by Jessica Z. Barger, Esam Al-Shareffi and Brian Cathey of Wright Close Barger & Guzman, Courtney Walsh of Boulder, Colorado, and Michelle Blaid and Paul Smith of Ware Jackson Lee O’Neill Smith & Barrow.
Brenner Tank Services and Bulk Solutions are represented by Dennis Callahan of Freeman Mathis & Gary and Kristina Williams, David Kearns and Charlotte Kelly of Norton Rose Fulbright.
“The Fifth Circuit’s decision provides important guidance on several recurring product liability issues,” Williams said in a statement. “The opinion confirms the application of Texas law governing non-manufacturing sellers, failure-to-warn claims involving obvious risks and the evidentiary requirements for design defect claims based on proposed safer alternative designs.”
The case number is 25-40286.
Panel Affirms Award for SkyWest Employee in Sex Harassment Case
A former parts clerk for SkyWest airlines at the Dallas-Fort Worth International Airport who accused her employer of failing to address the “extreme sexual harassment” she was being subjected to by coworkers, will get to hang on to a jury award in her favor after the Fifth Circuit affirmed the award July 9.
The panel’s opinion affirms an earlier ruling from U.S. District Judge Sidney A. Fitzwater awarding Sarah Budd $170,000 in compensatory damages and $130,000 in punitive damages. The jury had hit SkyWest with $2 million in punitive damages, which were reduced by Judge Fitzwater.
The EEOC had filed suit on Budd’s behalf, presenting evidence and testimony to the jury that Budd’s coworkers had made repeated rape jokes and jokes about selling her into prostitution, as well as comments about sexual positions and preferences.
“A coworker gestured to his crotch and told Budd he had a ‘good face cream’ for her,” the Fifth Circuit wrote in describing the scope of the harassment. “Others would discuss how many women they would have sex with on road trips for the company. One employee said that ‘people that cry rape are just stupid. They just fucking want attention. That’s all they want.’”
Budd suffered “extreme emotional distress” as a result of the comments and her supervisor’s failure to act, according to the opinion, even resorting to self-harm and contemplating suicide. According to the opinion, some employees were ordered to undergo additional training and received written warnings for the conduct Budd complained of as a result of an internal investigation.
Final judgment in the case also awarded Budd $220,132 in attorney fees and $24,607 in costs.
Judges James E. Graves Jr., Catharina Haynes and Jacques L. Weiner Jr. sat on the panel.
The EEOC is represented by its own James Driscoll-MacEachron and Alexa Lang.
Budd is represented by Edith K. Thomas of Zipin Amster & Greenberg.
SkyWest is represented by John Mann and Chad A. Schultz of Gordon Rees Scully Mansukhani and Liz Drumm of Fisher & Phillips.
The case number is 25-10491.
Pedestrian’s Border Patrol Hit-and-Run Suit Revived
The federal government will have to face a lawsuit brought by a woman who alleges she was struck by a U.S. Customs and Border Protection agent who was leaving the CBP station in Del Rio, after an appellate panel determined a “reasonable jury” could disagree the agent was not acting within the course and scope of his employment at the time of the incident.
The opinion, issued July 7, reverses an earlier decision from Chief U.S. District Judge Alia Moses granting the government summary judgment in the lawsuit brought by Tami Barrier.
According to the opinion, Barrier was stuck by a vehicle driven by Agent Robert Duran, who had clocked out at 3:30 p.m. Dec. 2, 2021, and was seen on security footage leaving the parking lot at 3:58 p.m.
Duran noticed a group of people filming the CBP station, and the opinion states he ”gassed it” when he drove past the gate and made a right turn.
“As he did so, he heard people slapping his truck,” the opinion reads. “Duran tried to avoid being filmed as he passed.” Barrier, who was among the group filming the station, was standing near the entrance and was struck by Duran’s truck.
“The parties have not cited, nor have we found, Texas authority that treats union employment differently for a course and scope of employment analysis in a vicarious liability action. And we must apply Texas law as it is,” the panel wrote. “Additionally, holding that Duran — a full-time union officer — was not in the course and scope of his employment when performing union work would place him out of scope for 80 percent of his workday. Surely, that cannot be.”
Judges James E. Graves Jr., Leslie H. Southwick and Cory T. Wilson sat on the panel.
Barrier is represented by George M. Padis and Griffin Rubin of Sbaiti & Company and Dustin Burrows of Liggett Law Group.
As Padis wrote on LinkedIn following the opinion, the case “presented an issue of first impression: whether a federal employee serving as a fulltime union officer acts within the course and scope of employment when performing union-related duties.”
“The opinion also provides significant guidance on the special-mission exception to the coming-and-going rule under Texas law — specifically, when an errand that benefits the employer (here, receiving donated supplies during the pandemic for distribution to Border Patrol stations) may constitute a special mission even if it is not part of the employee’s regular job description,” he wrote.
The government is represented by Darryl S. Vereen of the Department of Justice.
The case number is 25-50675.
U.S. Court of Appeals for the Tenth Circuit
Dismissal of Customers’ Uri Gas Price Case Affirmed
A group of residential natural gas consumers in Kansas were dealt a blow last week when an appellate panel held their claims against wholesalers, stemming from pricing during Winter Storm Uri, were preempted by the Natural Gas Act.
Judges Jerome A. Holmes, Harris L. Hartz and Matthew L. Garcia sat on the panel. Judge Garcia, a district judge in New Mexico, sat by designation. The panel issued its 26-page ruling July 6, affirming the earlier ruling of U.S. District Judge Daniel D. Crabtree, who dismissed multiple putative class actions that had been brought under the Kansas Consumer Protection Act.
The panel heard oral argument Jan. 21, and Susman Godfrey partner Beatrice Franklin argued for the wholesalers that included the following companies: BP Energy Company, Southwest Energy, Macquarie Energy, Rockpoint Gas Storage, Tensaka Marketing Ventures, Cima Energy, Southwest Energy, BP Canada Energy Marketing, Mercuria Energy America, Nextera Energy Marketing, Spotlight Energy, Williams Energy Resources, Concord Energy, ETC Marketing and Kansas Gas Service.
The plaintiffs are represented by Samuel Walenz, Lee M. Smithyman, Jacob Schmidt, Scott C. Nehrbass, Clayton J. Kaiser and Jay Fowler of Foulston Siefkin.
The defendants are represented by teams of lawyers from Sullivan & Cromwell, White & Case, Dentons, Susman Godfrey, Baker Botts, Latham & Watkins, Bracewell, Stinson, McDowell Hetherington, Troutman Pepper Locke, Quinn Emanuel, Shook, Hardy & Bacon, Weil and Morgan Lewis & Bockius.
The case number is 25-3046.
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