The Texas Lawbook has two reporters in federal courts covering jury trials this week — Bruce Tomaso in Sherman following a civil rights trial and Krista Torralva in Marshall covering a big patent dispute. More from those cases this week.
But this week’s Litigation Roundup focuses on three court cases that resulted in two victories for the defense counsel and a federal appellate reversal for a white pro se plaintiff in a race discrimination lawsuit.
Fourteenth Court of Appeals
Porter Hedges Beats Back $52M Construction Suit Against Harris County
After Harris County District Judge Jeralynn Manor denied Harris County’s request to bring an early end to a construction contract dispute without a hearing and without issuing a written opinion, Porter Hedges partners Amy Wolfshohl and Lauren Harris had their work cut out for them on appeal.
In the underlying case, Pulice Construction sued the county after the county denied the company’s request for $52 million in change orders related to construction that widened sections of the Sam Houston Tollway. The county argued governmental immunity barred the claim.
On appeal, both parties asked the court for oral arguments. The justices did not oblige and decided the case on submission.
But the panel’s 20-page opinion, issued Sept. 5, brought an end to the litigation and dismissed the case on jurisdictional grounds.
“I think, across the board, trial courts and appellate courts are not holding as many hearings,” Wolfshohl told The Lawbook in a recent interview. “The importance of the briefs cannot be understated. … You’ve got to make your points very clear in your headings. Your writing has to be very clear. You just can’t depend on oral arguments.”
Justices Frances Bourliot, Ken Wise and Randy Wilson sat on the panel.
Pulice is represented by R. Carson Fisk of Andrews Myers.
Harris County is represented by Wolfshohl and Harris of Porter Hedges.
The case number is 12-23-00818-CV.
Southern District of Texas
Holland & Knight Secures Defamation Win for NY Post
U.S. District Judge Alfred H. Bennett in Houston last week dismissed a defamation lawsuit brought against the New York Post for mistakenly publishing a photo of three women identified in a separate case accusing them of helping a friend get an abortion.
Erin Garcia and Tracey Davis sued the New York Post for publishing “a false and defamatory photograph and article depicting the plaintiffs as a woman who had an abortion in Texas and as a woman who assisted her in obtaining an abortion.”
The article in question was published on March 11, 2023. It reported on a lawsuit filed in Galveston by Marcus A. Silva accusing three women — none of them Garcia or Davis — of conspiring with his ex-wife to “murder” his “unborn child by illegally obtaining abortion pills.”
Silva, in his lawsuit, claimed that the women dressed up in Handmaid’s Tale costumes for Halloween in 2022 to “celebrate the murder.” Silva included a photo of seven women that included his ex-wife, the three women he accused of conspiring with his ex-wife and the two plaintiffs. Silva claimed the photo was taken as part of the celebration.
The New York Post posted a cropped version of the photo to show the three women, but the newspaper mistakenly featured Garcia and Davis instead of the women identified in Silva’s lawsuit. The actual article, however, never mentioned Garcia or Davis.
Three days later, on March 14, the New York Post corrected the photo to show the named defendants instead of Davis and Garcia.
In their lawsuit, Garcia and Davis argue that neither of them had abortions or assisted anyone in getting an abortion and they claimed they have lived in fear for their lives since the article and photo were published.
Houston plaintiff’s lawyer David Kent Mestemaker represents Garcia and Davis.
The New York Post turned to Holland & Knight partner Brad Hancock of Houston and Austin associates Brandon King and Hannah Maloney, who argued that the plaintiffs’ claims should be dismissed because the Post is protected by the fair reporting privilege.
Judge Bennett, in an eight-page order, wrote that the “gist” of the article is “substantially true” and that “at no point are the plaintiffs mentioned by name.”
“If the Post had published the article using the entire photograph as shown in Silva’s original petition which still shows plaintiffs, an ordinary reader would still associate plaintiffs with the lawsuit because they were pictured with the Silva defendants in costumes that Silva alleged were used to celebrate the murder of his unborn child,” Judge Bennett wrote.
The case is Erin Garcia v. NYP Holdings, Southern District of Texas, Case No. 4:23-cv-03238.
Fifth Circuit
Fifth Circuit Revives Race Discrimination Case Against Houston Methodist
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has revived a Title VII discrimination and retaliation lawsuit brought by a white former nursing assistant against Houston Methodist Hospital.
In a per curium opinion, the Fifth Circuit reversed a decision by the U.S. District Court in the Southern District of Texas that dismissed the lawsuit brought by Caitlin Julia Weathers because she filed her charge two days after the filing deadline.
In her complaint, Weathers claimed she was discriminated against by her coworkers at Methodist because of her race.
“Because this is one of the rare circumstances when the doctrine of equitable tolling applies, we reverse the district court’s dismissal of Weathers’s claims against Methodist and remand for further proceedings,” the panel wrote.
The Fifth Circuit noted that two periods of delay for Weathers were the fault of the Equal Employment Opportunity Commission.
“The EEOC had one job. That was to process Weathers’s putative discrimination charge timely,” Judge Cory Wilson wrote in his concurring opinion. “We are only here today because the EEOC failed to discharge this most basic responsibility — as the EEOC essentially admits in its amicus brief in support of Weathers.”
“Like too many Americans entreating their government for assistance, Weathers met with scheduling rope-a-dope online, and no one on the other end of the telephone line, as she tried — for months — to get the agency charged with eradicating workplace discrimination simply to help her compile her claim,” Judge Wilson wrote. “In the EEOC’s own telling, despite knowing Weathers’s filing deadline was August 1, [2022) the agency ‘did not offer Weathers any other method of filing a charge, did not warn her that a charge would not be filed promptly after [her August 1 interview], and did not advise her that she could satisfy the charge requirements by filing a charge herself.’”
Weathers filed the lawsuit pro se. Houston Methodist is represented by Patrick M. Palmer and Daniel Patton of the Scott Patton law firm.
The case is Caitlin Weathers v. Houston Methodist Hospital, No. 23-20536.
Michelle Casady contributed to this report.
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