In this week’s edition of Litigation Roundup, juries in Dallas and Tarrant County doled out damages to individuals permanently injured in separate botched surgeries, FedEx is slammed with nine-digit damages in a racial discrimination and retaliation case and the entire Fifth Circuit votes to rehear a lawsuit over a citizen-journalist’s arrest in Laredo.
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Dallas County Court-at-Law
Broken Leg Surgery That Led to Brain Damage Nets $21M Jury Award
A Dallas County jury has determined Carlos Rojas, who was left with permanent brain damage following a botched surgery to repair his broken leg, is entitled to $21 million in damages from US Anesthesia Partners, after finding anesthesiologist Mallorie Cline and nurse anesthetist Casey Martin liable for his injuries.
The jury returned its verdict Monday morning, after sitting through the trial that began Oct. 19, finding Cline 25 percent liable and Martin 75 percent liable. USAP, which employed both Cline and Martin, is on the hook for the entirety of the verdict.
Rojas had surgery in 2017 at Baylor University Medical Center in Dallas after he fell off a ladder while hanging Christmas lights. Repairing his leg required he be placed under general anesthesia, and he alleged in court that before the operation began he was unresponsive.
At trial, Rojas’ attorneys told the jury a lack of oxygen getting to his brain caused permanent brain damage, leaving him in a vegetative state, but also that the injuries were preventable.
A handwritten surgical record admitted as evidence in the case didn’t show any low blood pressure readings that would normally signal to staff something was wrong with Rojas, but he received medication from two nurse anesthetists during the procedure that were intended to increase his blood pressure.
“We believe they created the handwritten record in order to cover up what really happened here, which was that Carlos’ blood pressure dropped and they didn’t address it quickly enough to protect his brain,” Charla Aldous of Aldous Walker, who represents Rojas, said in a news release.
The electronic record of Rojas’ blood pressure during the procedure wasn’t preserved by the hospital, the jury heard.
Rojas is represented by Charla Aldous and Brent Walker of Aldous Walker and Bruce Steckler and Austin Smith of Steckler Wayne Cherry & Love.
USAP, Cline and Martin are represented by Liz Fraley of Baylor Law School and Heather Kanny of Mayer.
The case was before Judge Juan Renteria.
The case number is CC-19-05509.
Tarrant County District Court
Jury Awards Man Paralyzed After Spinal Surgery $9.2M
A man who walked into Bianco Brain and Spine for a spinal surgery and left a paraplegic has been awarded $9.2 million in damages by a jury that unanimously agreed the facility and surgeon Dr. Nikhil Patel were negligent in treating the man’s chronic back pain.
The 12 jurors returned their verdict in favor of Larry Jones Oct. 24, after a six-day trial that included testimony from 11 witnesses. The panel deliberated for nearly four hours, awarding about $5.6 million in economic damages and $3.6 in non-economic damages.
“Dr. Patel was warned several times by a monitoring physician during the surgery that Mr. Jones was showing signs of neurological distress,” Jones’ attorney, Seth McCloskey of Laird & McCloskey, said in a news release. “Dr. Patel chose to ignore those warnings and his patient, a man who just wanted some relief from suffering, now has to learn to live with an irreversible outcome that was completely preventable.”
The defendants argued that spinal surgeries come with real but rare risks and that Jones was informed of the possible outcome in this case prior to surgery and consented to the procedure.
The lawsuit was before Tarrant County District Judge Megan Fahey.
Patel and Bianco are represented by Ed Quillin of Dallas.
The cause number is 348-312620-19.
Southern District of Texas
FedEx Slammed With $365M in Punitive Damages in Retaliation Case
A fired FedEx worker was recently awarded about $366 million by a federal jury in Houston that found the company had retaliated against the Black employee after she reported to human resources her concerns of racial discrimination by a manager.
Jennifer Harris filed her lawsuit in May 2021, alleging that despite her being one of the most successful sales managers employed by FedEx, she was fired “for opposing discrimination in the workplace.”
The jury found on Oct. 25 that FedEx retaliated against Harris because of her claim of racial discrimination and that the company failed to act “in good faith” regarding her complaints.
The panel awarded her $170,000 for past pain and suffering, about $1 million for future pain and suffering and slammed FedEx with $365 million in punitive damages for its “reprehensible conduct.”
U.S. District Judge Kenneth M. Hoyt presided over the trial that began Oct. 17 and lasted seven days.
FedEx is represented by its own Barak Jonathan Babcock and Christopher M. Ahearn and Brent Douglas Sedge of Fisher & Phillips.
Harris is represented by Brian P. Sanford.
The case number is 4:21-cv-01651.
Northern District of Texas
Creator of ‘Cheaters’ Wins $390K in Copyright Spat With Former Host
A federal jury in Dallas on Oct. 27 sided with Bobby Goldstein Productions, the creator of “Cheaters” and “Cheaters Uncensored” in a copyright infringement lawsuit the company brought against the former host of the show, awarding BGP $390,000 in damages.
BGP filed suit against former host Thomas Habeeb and his company American Television Distribution in August 2021, according to court documents, accusing Habeeb of violating a 2005 agreement that gave Habeeb the right to secure pay-per-view contracts and a supplemental 2006 agreement that reaffirmed Bobby Goldstein as sole owner of “Cheaters” copyrights.
But jurors were told that soon after the supplemental agreement was signed, ATVD created accounts online and began posting trailers about “Cheaters” episode’s without BGP’s approval. The jury found that those were copyrighted works belonging to BGP and that ATVD owed $15,000 in damages for each of the 26 episodes features in the trailers.
“The agreement allowed Mr. Habeeb to secure pay-per-view contracts for ‘Cheaters Uncensored’ episodes,” said attorney Jeff Bragalone of Bragalone Olejko Saad, PC, who represents BGP. “But his company was never granted permission to post those copyrighted materials on any online video-sharing platform.”
BGP is also represented by Daniel Fletcher Olejko and Paul Campbell Stevenson of Bragalone Olejko Saad.
Habeeb is represented by Andrew A. Bergman and Jay Kurtis Gray of Bergman Gray.
The case was assigned to Senior U.S. District Judge A. Joe Fish.
The case number is 3:21-cv-01924.
Eighth Court of Appeals
All Smiles Dental Doc Can’t Shake $11M Penalty
An intermediate appellate court recently upheld a trial court’s finding that Dr. Richard J. Malouf, former owner of All Smiles Dental Center, violated the Texas Medicaid Fraud Prevention Act more than 1,800 times and owes $11 million in civil remedies.
The qui tam lawsuit against Malouf was brought in 2012 by another dentist, Christine Ellis, and Madelayne Castillo, according to the opinion, and the state intervened shortly after. Malouf was accused of telling Medicaid he personally performed certain orthodontic services for clients when other employees, who are reimbursed at a lower rate, actually performed the work.
“Identifying and preventing Medicaid fraud continues to be a top priority for my office,” Texas Attorney General Ken Paxton said in a news release announcing the appellate ruling. “I remain committed to ensuring that taxpayer dollars are preserved for those who most need them.”
The trial court entered final judgment against Malouf in August 2020.
Malouf is represented by Jason W. Snell and W. Lance Cawthorn of The Snell Law Firm.
Chief Justice Gina Palafox and Justices Yvonne T. Rodriguez and Jeff Alley sat on the panel that issued the Oct. 14 ruling.
The case number is 08-20-00235-CV.
U.S. Court of Appeals for the Fifth Circuit
Full Court to Reconsider Journalist’s Suit Over Arrest
A majority of judges on the circuit have voted to rehear en banc a case where citizen-journalist Priscilla Villarreal is trying to revive her lawsuit against the City of Laredo over what she maintains was an unlawful arrest.
The court vacated its Aug. 12 opinion that sided with Villarreal 2-1 on Oct. 28, according to court records, and tentatively scheduled oral arguments to take place the week of Jan. 23. Villarreal operated a Facebook page where she posted about crime and was arrested in 2017 on charges of soliciting information from public officials “with intent to obtain a benefit.”
A trial court had determined immunity barred Villarreal’s lawsuit.
The panel majority wrote in reviving Villarreal’s suit that she had been “put in jail for asking a police officer a question.” Chief Circuit Judge Priscilla Richman dissented from the panel in August.
“But in order to make the jarring assertions that it does, the majority opinion has to conclude that no reasonably competent law enforcement officer could objectively have had a basis for seeking to arrest Villareal under Texas Penal Code § 39.06(c) and (d),” she wrote, referencing the statute that forbids soliciting information “with intent to obtain a benefit.”
The case has drawn amicus attention from the Institute for Justice, Texas Press Association, Texas Association of Broadcasters, Freedom of Information Foundation of Texas, Brechner Center for Freedom of Information, News Leaders Association and the Society of Professional Journalists.
Villarreal is represented by JT Morris of Austin, Conor T. Fitzpatrick of Miller canfield Paddock & Stone and Darpana Sheth of Foundation for Individual Rights and Expression.
Laredo is represented by William Michael McKamie and Alicia K. Kreh of Taylor Olson Adkins Sralla & Elam.
The case number is 20-40359.