This week of Appellate Roundup features two Fifth Circuit rulings scolding U.S. District Judge Lynn Hughes, the dismissal of a lawsuit brought in the wake of an in-hospital assault and a loss for the University of the Incarnate Word, which is trying to end a wrongful death lawsuit over the shooting of a student.
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Fourth Court of Appeals
UIW Can’t Duck Wrongful Death Suit
On Friday, the University of the Incarnate Word in San Antonio was denied an early win on immunity grounds in a wrongful death lawsuit brought against it by the parents of a former student who was shot and killed by a campus police officer during an off-campus traffic stop.
The Fourth Court of Appeals in San Antonio determined the trial court correctly denied the university’s bid for summary judgment in the lawsuit brought by Valerie and Robert Redus, because the issue of whether the officer was acting “in good faith” when he shot Cameron Redus multiple times in December 2013 is in dispute.
UIW is represented by Laura Hudgins Hollingsworth of Rusty Hardin & Associates and Laurence S. Kurth, David V. Jones and Taylor R. Beaver of Akerman.
The Reduses are represented by Brent C. Perry and Robert R. Burford of Burford Perry and Jorge A. Herrera and Frank Herrera Jr. of the Herrera Law Firm.
The cause number is 04-21-00115-CV.
Seventh Court of Appeals
Amarillo Panel Says Hospital Assault Case Fails
A hospital patient who was allegedly attacked by another patient — ostensibly under the influence of methamphetamine — had her lawsuit thrown out by the Seventh Court of Appeals in Amarillo on Monday after the panel found she should have filed an expert report in support of her claims.
Healthcare liability claims require an expert report explaining the standard of care and how the standard was violated resulting in the alleged injuries. Because Janet Marie Erwin — who argued her suit was not a healthcare liability claim — failed to file the report, Northwest Texas Healthcare System, also known as Northwest Texas Hospital, won’t have to face her lawsuit.
The hospital is represented by Mitzi S. Mayfield, Alex L. Yarbrough and Kerri L. Stampes of Riney & Mayfield.
Michael J. Sharpee represented Erwin.
The cause number is 07-22-00020-CV.
Fifth Circuit
Judge Hughes’ Expulsion of AUSA Gets Undone
A three-judge panel of the Fifth Circuit on Tuesday agreed with the government that U.S. District Judge Lynn Hughes’ oral order permanently barring an assistant U.S. attorney from appearing in his courtroom was an abuse of discretion and cannot stand.
The opinion, which does not detail Judge Hughes’ alleged courtroom conduct, came in an appeal of a healthcare fraud sentence. But in a concurrence, Judge James C. Ho took Judge Hughes to task, albeit without naming him.
Judge Ho noted that the prosecutor Judge Hughes barred from his courtroom in this case, USA v. Brenda Rodriguez, is the same prosecutor who was the subject of earlier courtroom comments by Judge Hughes, in USA v. Swenson, that the Fifth Circuit in 2018 determined were “demeaning, inappropriate and beneath the dignity of a federal judge.”
The attorney was not named in briefing to the court.
In Swenson, Judge Ho recounted, Judge Hughes was accused of belittling the assistant U.S. attorney based on her sex, saying “We didn’t let girls do it in the old days.”
“Now fast forward to the present case: That same district judge issued a verbal order from the bench, excluding that same AUSA from his courtroom — not only in this case, but in all future cases as well,” Judge Ho wrote. “By all accounts, the district judge issued the order to punish the AUSA for the USAO’s appellate briefing in Swenson.”
According to the government’s appeal to the Fifth Circuit in Rodriguez, Judge Hughes told the assistant U.S. attorney she was excused from his courtroom and refused to provide her a reason. She pressed one final time, telling the court “I would like to have a reason why I am being excused,” according to the brief.
Judge Hughes was unmoved.
“I understand you would like that. You will be disappointed… you are not going to have my reasons,” he said, according to the brief.
Judge Ho wrote that it’s apparent from the transcript of those proceedings that Judge Hughes believed he was falsely accused of sex discrimination.
“But be that as it may, it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom — not just in one case, but in every case that she may bring for the rest of her career,” Judge Ho wrote.
Chief Judge Priscilla Richman and Judges James C. Ho and Kurt D. Engelhardt sat on the panel.
Rodriguez is represented by Aaron Spolin and Daniel DeMaria of Spolin Law.
The government is represented by Jason B. Smith, Carmen Castillo Mitchell and Jeremy Raymond Sanders.
The cause number is 21-20270.
Judge Hughes’ Toss of FLSA Case Gets Undone
The Fifth Circuit has once again told U.S. District Judge Lynn Hughes he must allow the parties to engage in reasonable discovery before disposing of a case. In a ruling issued Wednesday, the court undid a summary judgment win in favor of Helix Energy Solutions in a proposed class action lawsuit alleging Fair Labor Standard Act violations brought by Vantrerius McKnight.
McKnight, who works aboard Helix ships, told the Fifth Circuit in a brief that at a scheduling conference Judge Hughes explained to the parties that, in his view, everyone who works onboard a ship is exempt from overtime under the FLSA, that the Fifth Circuit’s jurisprudence on the issue was “idiotic” and that he was “not going to follow it.”
The Fifth Circuit’s per curiam opinion sending the case back to Judge Hughes does not name him. Judges James L. Dennis, Jennifer Walker Elrod and Stuart Kyle Duncan sat on the panel.
Helix is represented by Michael Carter Crow, Kimberly Frances Cheeseman and Katherine D. Mackillop of Norton Rose Fulbright.
McKnight is represented by Curt Christopher Hesse and Melissa Ann Moore of Moore & Associates.
The cause number is 21-20109.
Fifth Circuit Revives Civil Rights Case Against Sabine Co. Sheriff, Deputy
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled Thursday in a civil rights lawsuit that law enforcement can commit “substantive due process violations … based on mental coercion alone.”
Melissa Tyson, an East Texas housewife, accused a constable from Sabine County, Texas of using his position to coerce the woman into undressing and touching herself while he watched and masturbated.
The federal district court in the Eastern District of Texas dismissed the case saying that Tyson’s due process rights were not violated because the constable, David Boyd, had not physically touched her.
In a 21-page opinion, Fifth Circuit Judge Edith Brown Clement writing for the unanimous panel said Boyd, who the judge wrote had a history of inappropriate sexual conduct allegations against him, violated Tyson’s constitutionally protected right to bodily integrity. Physical force is not a requirement for violation, wrote Clement, who was joined in her opinion by Judge Gregg J. Costa and Judge James E. Graves Jr.
Tyson’s lawyer in the litigation is Beaumont trial lawyer Jason Michael Byrd. Boyd is represented by the Iglesias Law Firm.
The cause number is 21-40590.
Editor’s Note: Mark Curriden contributed to this report.