In this edition of Litigation Roundup, a mother from the Bronx sues American Airlines in federal court in Fort Worth over the in-flight death of her 14-year-old son, USAA is accused in a proposed class action lawsuit of covertly operating a two-tier benefits system and a divided ruling from the state’s court of last resort for criminal cases makes a surprise appearance in this civil courts-focused article.
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Travis County District Court
TCEQ Sued Over Concrete Plant Approval
The Harris County Hospital District filed a lawsuit last week against the Texas Commission on Environmental Quality, challenging its approval of a concrete crushing facility near the Lyndon B. Johnson Hospital.
TCEQ approved Texas Coastal Materials’ application to operate the facility that’s a half-mile walk from the hospital in January. Harris County alleges the state’s standards for approving such facilities are “severely outdated” and are “not sufficiently protective of human health.”
“Unfortunately, the TCEQ and Texas Coastal Materials have refused to listen to the concerns of the people who live and work in this community and are insisting on moving forward with their plans to build a concrete crushing facility across the street from a hospital,” Harris County Attorney Christian D. Menefee said in a statement. “We know that pollutants from these types of facilities can cause serious health issues. It should go without saying that patients at a hospital and the doctors and nurses who treat them should be able to breathe clean air without concern. And yet, saying it has not been enough to stop this plan, so the county is now taking legal action.”
The lawsuit alleges TCEQ’s permitting of the facility is “invalid, arbitrary or unreasonable” and asks the court to reverse the decision. Because the public LBJ hospital is both a teaching hospital for the University of Texas Health System and contains a chapel, Harris County alleges it fails to comply with requirements that such crushing facilities be located 440 yards away from schools and churches.
The case has been assigned to Travis County District Judge Jan Soifer.
Harris County is represented by Adam M. Friedman and Hailey Culhane of McElroy, Sullivan, Miller & Weber in Austin, Amy Dinn and Caroline Crow of Lone Star Legal Aid and Sarah Utley and Ryan Cooper of the county attorney’s office.
Counsel information for TCEQ was not available Monday.
The case number is D-1-GN-24-002894.
Western District of Texas
Proposed Class Sues USAA Over ‘False, Unfair, Deceptive’ Promises
A group of six USAA policyholders filed a putative class action lawsuit May 3 accusing the banking and insurance company of covertly operating a two-tier membership status program that puts two-thirds of its members as a disadvantage.
“In truth, USAA reserves real membership and it concomitant benefits exclusively for customers from the officer class (in particular, commissioned and senior non-commissioned officers, officer candidates, and their unmarried widows),” the suit alleges. “USAA secretly relegates all other customers — in particular, enlisted personnel and military family members — to nominal or ‘fake’ member status.”
The plaintiffs are led by Brian Capps, who lives in Texas. The other plaintiffs live in Texas, California, Arizona, Illinois and New Jersey.
Capps alleges that so-called “real USAA members” have received “very real financial benefits,” which in 2023 included allocations to each member’s account from USAA’s unassigned policyholder surplus that totaled $10.4 billion.
But the second tier of policyholders, Capps alleges, received nothing. The lawsuit alleges USAA has breached its contract with policyholders and seeks money damages as well as permanent injunctive relief.
The case has been assigned to U.S. District Judge Orlando L. Garcia.
The plaintiffs are represented by Roger N. Heller and Nimish R. Desai of Lieff Cabraser Heimann & Bernstein in San Francisco, Michael P. Thornton, David J. McMorris and Christian Uehlein of Thornton Law Firm in Boston and Michael J. Brickman, James C. Bradley, Nina Britt and Caleb M. Hodge of Rogers, Patrick, Westbrook & Brickman in Mount Pleasant, South Carolina.
Counsel for USAA had not filed an appearance as of Monday.
The case number is 5:24-cv-00455.
Northern District of Texas
American Airlines Sued Over Teen’s 2022 Death
The family of a 14-year-old boy who died after suffering a medical emergency on an American Airlines flight from Honduras to New York City filed a lawsuit against the airline Monday, alleging a faulty automatic external defibrillator is to blame.
Kevin Greenridge died June 4, 2022, on a return flight to New York following a family vacation in Honduras. The lawsuit alleges flight staff were slow to respond to calls for help after Greenridge lost consciousness and that the AED eventually used on him wasn’t functioning properly.
“When flight personnel eventually attempted to use the AED on Greenidge, they were either unable to properly operate the machine or the machine did not function properly,” the suit alleges. “According to eyewitnesses, each time the AED gave a ‘clear’ warning for people to step back from Greenidge’s body so that a shock could be administered, a shock was not delivered. Instead, the machine simply kept advising that CPR should be continued.”
The lawsuit alleges that the staff on American Airlines flight 61 that day had not been trained on how to use the AED that was on board, in violation of federal law. Greenridge is described in the lawsuit as “an active eighth grader who enjoyed swimming at the YMCA, playing games with his friends, and spending time with his younger cousin.”
Greenridge’s mother, Melissa Suzette Arzu, is represented by Darren P. Nicholson, Hannah M. Crowe and Clay R. Mehaffey of Burns Charest.
“After Kevin died, I never heard from American Airlines,” Arzu said in a press release. “It made me feel hopeless. I want answers from American Airlines. I want American Airlines to take full responsibility for Kevin’s death. I never want this to happen to a child or family again.”
Counsel for American Airlines hadn’t filed an appearance as of Monday, and it was not immediately clear which judge had been assigned to preside over the case.
The case number is 4:24-cv-00433.
Judge Pittman Invokes Gen. Patton, ‘Respectfully Disagrees’ with Fifth Circuit
U.S. District Judge Mark T. Pittman on Friday granted the U.S. Chamber of Commerce’s request for a preliminary injunction that would halt implementation of a rule promulgated by the Consumer Financial Protection Bureau capping credit card late fees.
But he spent much of the 12-page opinion trying to “dissuade” the U.S. Court of Appeals for the Fifth Circuit that he had been slow to rule in the case and warned its earlier ruling calling him out could create “potential landmines” for trial judges and their “day-to-day docket-management discretion.”
“General George S. Patton, Jr. famously said ‘Never tell people how to do things. Tell them what to do and they will surprise you with their ingenuity,’” Judge Pittman wrote. “The court accepts the rulings of the Fifth Circuit in this case without passion or prejudice and will apply its guidance to the utmost of its ability. … Parties should not be allowed to manipulate the court system to order trial judges ‘how’, ‘what’, and ‘when’ to rule.”
In April a split panel of Fifth Circuit judges found Judge Pittman didn’t have authority to transfer the lawsuit to Washington, D.C., where the CFPB is headquartered, while an appeal from his “effective denial” of the Chamber’s request for a preliminary injunction remained pending at the Fifth Circuit.
Judge Stephen A. Higginson wrote in a dissent that he would have denied the mandamus petition because Judge Pittman’s conclusion that the lawsuit doesn’t belong in the Northern District of Texas “is fact-based and sound.”
“Indeed, the district court’s prompt transfer of the case, after explaining in detail why the case was improperly before it, dutifully heeds our admonishments to district courts to prioritize ruling on motions to transfer,” Judge Higginson wrote. “By granting mandamus, the majority reverses course today.”
“Worse still, the majority’s grant of mandamus also threatens to impossibly hamstring district courts by effectively declaring that our district judges cannot manage their dockets to sequence threshold questions before difficult merits questions and cannot transfer cases if there are motions pending.”
On April 30, the Fifth Circuit issued a ruling ordering Judge Pittman made “particularized findings” on the preliminary injunction motion by May 10. In Friday’s ruling he found that because the CFPB’s funding structure had been previously ruled unconstitutional, the Chamber was likely to succeed in its challenge to the rule and granted the injunction.
But he quickly turned back to the accusations by the Fifth Circuit that he had been “dilatory or sluggish” in his resolution of the case.
“The Court must respectfully disagree with its appellate court colleagues,” he wrote, explaining both in the text of his opinion and in a timeline embedded in the ruling that he issued his ruling transferring venue 14 days after the case was assigned to him.
“In this regard, the court would appreciate additional clarity and instruction from the Fifth Circuit regarding the circumstances in which a party can instruct a trial court to rule and dictate the court’s terms and timeline,” Judge Pittman wrote. “Here, plaintiffs insisted they needed a quick ruling to implement a voluntary policy of printing updated disclosures for their customers. The court is concerned that this case opens the door for ‘mischief’ wherein plaintiffs can come up with creative reasons for demanding prompt preliminary-injunction rulings under a dictated timeline.”
Judge Pittman wrote that he “rejects the notion” he didn’t act promptly and argued he instead was exercising his broad discretion to manage his docket.
“That’s what [the court] did here, much to the apparent dismay of the Fifth Circuit,” he wrote.
The Chamber is represented by Michael Murrayand Tor Tarantola of Paul Hastings, Derek Carson and Philip Vickers of Cantey Hanger, Thomas Pinder and Andrew Doersam of the American Bankers Association and Jennifer B. Dickey and Maria C. Monaghan of the U.S. Chamber’s litigation center.
The CFPB is represented by its own Stephanie Garlock of Washington, D.C.
The case number in the district court is 4:24-cv-00213. The case number in the Fifth Circuit is 24-10266.
Texas Supreme Court
Minor’s Psychological Treatment Records Are Discoverable
The Texas Supreme Court on Friday agreed that Richardson Motorsports is entitled to discovery about the mental condition of a minor child who is suing the company in the wake of an ATV accident that injured her and killed her brother.
Justice Brett Busby, writing for the unanimous court in a 28-page opinion, explained that because the mental or emotional conditions of the minor child, referred to as E.B., are part of her claim and part of Richardson’s defense, discovery of her mental health care treatment records relevant to those conditions are discoverable.
“We conclude that E.B.’s mental or emotional condition is part of her claim because she is relying on expert testimony about that condition to prove her mental anguish damages, and it is also part of Richardson’s defense that those damages have alternative causes,” the court held. “Thus, discovery of E.B.’s mental health care treatment records relevant to the claim or defense is not foreclosed by privilege.”
According to court documents, in 2013 E.B.’s father purchased a Can-Am Commander 1000 XT ATV from Richardson Motorsports. That model was subject to a steering mechanism recall in 2016, but Richardson allegedly failed to inform the father of that.
That same year, the father was driving the ATV with his son, who was 8, and E.B., who was 10, when the steering mechanism allegedly malfunctioned, causing the vehicle to roll over. The boy was trapped under the ATV and died. The father and his daughter were injured in the crash.
Part of the lawsuit E.B. filed seeks mental anguish damages, and Richardson has contended any mental anguish she’s suffering is instead related to the divorce of her parents, her estrangement from her mother and “alleged sexual abuse of E.B. by her stepfather.”
Richardson Motorsports is represented by R. Brent Cooper, Michelle E. Robberson and David H. Jones of Cooper & Scully and John M. Cox and Leigh M. Taylor of John M. Cox & Associates in Dallas.
The Barneses are represented by Paul F. “Chip” Ferguson Jr., Jane S. Leger, Mark Sparks and Jonathan “Tripp” Jones of The Ferguson Law Firm in Beaumont.
The case number is 22-167.
Court of Criminal Appeals
Divided Court Reverses Murder Conviction Over ‘Prejudicial’ Rap Videos
The top criminal court in Texas issued a divided ruling on May 8 that reversed a capital murder conviction for Larry Jean Hart, finding prosecutors were wrongly allowed to show jurors two music videos where Hart lip-synced to rap lyrics written by other artists.
“In this case, any probative value of the rap videos and lyrics was outweighed by the overwhelming potential for prejudice and confusing the issues,” the court held in ordering a new trial.
“We think appellant stated our view on the issue at hand best when he said, ‘it’s just rap, ma’am,’” the majority wrote, quoting Hart’s testimony at trial during the state’s cross-examination of him. “Because the rap videos highly prejudicial in nature in the context of a guilt-innocence proceeding, appellant has shown reversible error.”
The case generated three dissenting opinions and one concurrence, in addition to the majority’s holding.
Chad Baruch of Johnston Tobey Baruch in Dallas made national news after authoring an amicus brief he filed with the U.S. Supreme Court in 2015 representing several rappers in support of Mississippi high school student Taylor Bell, who was disciplined for posting a rap song online.
The so-called “hip hop brief” endeavored to explain to the high court justices that rap music deserves First Amendment protections despite its sometimes violent rhetoric.
“By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution,” Baruch told the court in the 2015 brief. “But rap most certainly is art. Like all poets, rappers privilege figurative language and employ a full range of literary devices.”
Baruch spoke to The Lawbook on Friday (while on a vacation that included a trip to the Rock and Roll Hall of Fame, where he perused a hip hop exhibit) about a recent CLE he gave on the Hart case and the court’s holding.
“The only thing that surprised me was that they got the right result. For Texas, of all places, to be a national leader on this issue, you just wouldn’t expect that,” he said, noting and he and others across the country have “worked really hard” to educate the judiciary about the issue.
Baruch said that Dallas Court of Appeals Justice Amanda L. Reichek, who in August 2022 dissented from the panel that upheld Hart’s conviction, had attended previous discussions he’s led on the prejudicial effect of introducing such evidence at trial.
“A lot of people around the country were really surprised to see Texas step out and take a leading position on this,” Baruch said. “But for those of us who work in the area, we were thrilled.”
Judge Bert Richardson authored a six-page concurring opinion, joined by Judges Barbara Hervey and David Newell, that went to great lengths to show how all genres of music include references to illegal activity, pairing quotes from famous songs with the corresponding Texas penal code the artist sings about violating:
Blues Rock
• “Don’t bogart that joint, my friend. Pass it over to me.” FRATERNITY OF MAN, Don’t Bogart Me (1968). Possession of Marijuana Tex. Health and Safety Code § 481.121.
Folk Rock
• “I shot my baby. Down by the river. Dead, ooh, shot her dead.” NEIL YOUNG, Down by the River (1969). Murder, Tex. Penal Code § 19.02.
Reggae
• “I shot the sheriff, but I didn’t shoot the deputy.” BOB MARLEY & THE WAILERS, I Shot the Sheriff (1973); also ERIC CLAPTON, I Shot the Sheriff (1974). Aggravated Assault with Deadly Weapon, Tex. Penal Code § 22.02.
Disco/Soul
• “If the price is right, you can score, if your pocket’s nice.” DONNA SUMMER, Bad Girls (1979). Promotion of Prostitution, Tex. Penal Code § 43.03.
• “Burn, baby burn, burn that mother down.” THE TRAMMPS, Disco Inferno (1976). Arson, Tex. Penal Code § 28.02.
Pop
• So lay your cards down, down, down. So park your Lexus. And throw your keys up.” BEYONCE, Texas Hold’em (2024). Aggravated Robbery, Tex. Penal Code § 29.03.
• “Hey, let’s touch in public.” CHARLES MCMANSION, T.I.P. (2015). Public Lewdness, Tex. Penal Code § 21.07.
• “I eat boys up, breakfast and lunch. Then when I’m thirsty, I drink their blood.” KESHA, Cannibal (2010). Abuse of Corpse, Tex. Penal Code § 42.08.
• “I met her in a hotel lobby, masturbating with a magazine.” PRINCE, Darling Nikki (1984). Indecent Exposure, Tex. Penal Code § 21.08.
• “Private eyes. They’re watching you. They see your every move.” HALL & OATES, Private Eyes (1981). Stalking, Tex. Penal Code § 42.072.
Country
• “I just killed a man. Left him in his drive. Watched the light go out of his loving eyes.” CATIE OFFERMAN, I Just Killed a Man (2023).5 Murder, Tex. Penal Code § 19.02.
• “I drew a bead on him, to practice my aim. My brother’s rifle went off in my hand.” JOHNNY CASH, I Hung My Head (2002) (cover of a STING song). Murder, Tex. Penal Code § 19.02.
• “Goodbye Earl. Those black-eyed peas; they tasted alright to me, Earl.” DIXIE CHICKS, Goodbye Earl (1999). Murder, Tex. Penal Code § 19.02.
Jam
• “Wilson, kill you ‘til you die.” PHISH, Punch You in the Eye (1989). Terroristic Threat, Tex. Penal Code § 22.07.
• “I just jumped the watchman, right outside the fence, took his ring, four bucks in change.” GRATEFUL DEAD, Jack Straw (1972). Robbery, Tex. Penal Code § 29.02.
Metal
• “So I kissed him upside the cranium with that aluminum baseball bat.” PRIMUS, My Name is Mud, (1993). Aggravated Assault with Deadly Weapon, Tex. Penal Code § 22.02.
Indie/Alternative
• “Think I’m drunk enough to drive you home now. I’ll keep my mouth kept shut under lock and key.” DEATH CAB FOR CUTIE, Champagne from a Paper Cup (1998). Driving While Intoxicated, Tex. Penal Code § 49.04.
Hart is represented by Ronald L. Goranson of Dallas.
Texas is represented by Grace E. Shin and John Creuzot of the Dallas County district attorney’s office.
The case number is PD-0677-22.