In this edition of Litigation Roundup, we give readers one guess as to why Buc-ee’s filed a new lawsuit in Missouri, CBS moves to dismiss a federal lawsuit filed by President Donald Trump, and we detail two new state court lawsuits each seeking more than $100 million in damages.
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.
Travis County District Court
Amazon Sued Over Fatal I-35 Pileup
Amazon, a subcontractor and a driver have been sued by a man who earlier this month survived a pileup on Interstate 35 in Austin that left five people dead and 11 people injured.
Nathan C. Jonard’s vehicle was among the 17 that were crushed when an Amazon Logistics vehicle allegedly slammed into standstill traffic. Alongside Amazon, defendants include ZBN Transport and driver Solomun Weldekeal Araya, whom the lawsuit alleges was “impaired by drugs” at the time of the crash.
“Ahead of him, traffic had come to a complete stop — cars lined up, drivers waiting patiently. Yet Araya did not brake. He did not slow,” the lawsuit alleges. “With absolute disregard for human life, he plowed forward at full speed, turning a busy stretch of highway into a scene of carnage. The impact was catastrophic.”
Jonard lost consciousness after the crash and was taken to a hospital where he was diagnosed with several broken bones, a dissected artery in his neck that required surgery, a herniated disc and deep lacerations to his head, legs and feet.
Austin police charged Araya with five counts of intoxication manslaughter and two counts of intoxication assault. Araya, who was delivering a load for Amazon, had been employed by ZBN for four months at the time of the crash.
Jonard is seeking more than $100 million in damages in the negligence lawsuit.
The lawsuit, filed March 20, has been assigned to Travis County District Judge Laurie Eiserloh.
Jonard is represented by Brad Beckwith, Trey Duck, Drew Pate, Elecia Byrd, Rachel Cross and Matthew Guerra of Nix Patterson and Brent Goudarzi of Goudarzi & Young.
The case number is D-1-GN-25-002009.
Washington State Superior Court, Pierce County
Dallas-Based DOBS Gets Another Asbestos Win
Earlier this month, a judge determined the family of a man who died of lung cancer is entitled to $16.2 million in damages from asbestos mining company Asbestos Corporation Ltd.
Judge TaTeasha Davis issued her findings of fact and conclusions of law in favor of the family of Steven Kotzerke on March 18 after presiding over a damages-only bench trial that began March 3. Prior to the bench trial, the judge had previously entered an order of default against 3M subsidiary Asbestos Corporation, according to court documents, was found in contempt of court after the company failed to comply with discovery orders and “failed to make any argument” in opposition to the motion for default.
Steven Kotzerke died in September 2022 of lung cancer. He was 67. The lawsuit alleged the source of asbestos that caused his cancer was traced to “asbestos and asbestos-containing products that had been mined, manufactured, produced and/or placed into the stream of commerce by the defendants.” Specifically, the suit alleges that Kotzerke’s father’s work at a paper mill exposed Steven Kotzerke to the harmful asbestos fibers and dust that caused his death.
Judge Davis’ award includes $1.7 million in economic damages for Steven Kotzerke, $5 million for his pain and suffering, $7.5 million for his widow, Jolene Kotzerke’s loss of emotional support and companionship, and $1 million each for his two adult daughters.
For “willfully violating” the court’s discovery orders, Judge Davis hit Asbestos Corp. with a $68,000 sanction.
The Kotzerke family is represented by Trey Branham and Sarah E. Gilson of Dean Omar Branham Shirley and Alexandra B. Caggiano, Brian D. Weinstein and Dylan J. Johnson of Weinstein Caggiano.
Counsel information for Asbestos Corp. wasn’t available Monday afternoon.
The case number is 23-2-05287.
Western District of Missouri
Trademark Warrior Buc-ee’s Sues Missouri’s Barc-ee’s
Two companies using the name Barc-ee’s to sell and advertise a variety of products at a store in Marshfield, Missouri, have found themselves in Buc-ee’s crosshairs.
Buc-ee’s filed suit March 19 against Home Away From Home Dog Training and EJL Acquisitions, bringing claims for trademark infringement, trademark dilution, unfair competition, misappropriation and unjust enrichment.
“EJL uses the name ‘BARC-EE’S’ in connection with at least food products, drink products, pet products, travel stop services such as providing dog parks, EV charging stations, and board game play areas, as well as retail store services featuring convenience store items,” Buc-ee’s claims in its 45-page lawsuit. “Home Away uses the Barc-ee’s mark in connection with at least food products, drink products, pet products, travel stop services such as providing dog parks, EV charging stations, and board game play areas, as well as retail store services featuring convenience store items.”
The convenience store giant alleges that the “curving word style” of the Barc-ee’s mark is a “colorable imitation” of Buc-ee’s mark and that the name itself “mimics important aspects” of its trademark. Buc-ee’s also takes issue with the companies’ use of “an anthropomorphic and cartoon representation of a smiling brown animal with a red tongue and black nose wearing a hat on a yellow circle with a black circular outline” which is used in branding of its food, drink, pet products and more.
Buc-ee’s is also seeking relief in the form of an injunction that would bar Barc-ee’s from “further infringement and dilution” and a court order that would require the destruction of all infringing products and award to Buc-ee’s any profits Barc-ee’s received from the allegedly infringing products.
The case has been assigned to Chief U.S. District Judge for the Western District of Missouri Beth Phillips.
Buc-ee’s is represented by C. Bradley Tuck of Evans & Dixon and Joseph J. Berghammer, Eric J. Hamp and Anthony J. Denis of Banner & Witcoff.
Counsel for Home Away and EJL Acquisitions had not filed an appearance as of Monday.
The case number is 6:25-cv-03060.
Southern District of Texas
Delta Faces Suit in Houston Over Flight 4819 Crash
A man who alleges he lost consciousness when a Delta Airlines flight from Minneapolis-St. Paul to Toronto crash-landed last month and awoke “drenched in jet fuel, suspended upside down in a smoke-filled cabin” has sued the airline.
Tomas Eugenio Salvador Stamm filed suit March 11 against Delta Airlines and Endeavor Air. He was sitting in seat 19A, a rear window seat on the left side of the plane. The Bombardier CRJ 900 aircraft “violently slammed onto the runway,” Stamm alleges, breaking off the right wheel and tearing off the right wing before the aircraft “careened upside down across the runway.”
Stamm said in the lawsuit he had to unbuckle his seat belt and crawl toward the front of the plane to jump onto the runway, where he was “showered with fire suppression foam.” Stamm alleges he suffered “serious, permanent and debilitating physical and psychological injuries.”
“The crash occurred due to the negligence and recklessness of the Delta and/or Endeavor flight crew on Flight 4819, in violation of numerous international and United States airline industry standards and established flight rules,” the suit alleges. “Specifically, the Flight 4819 flight crew failed to observe the most fundamental procedures for a landing approach into [Toronto], failed to appropriately monitor flight conditions on approach, and failed to communicate and react in the cockpit to those flight conditions.”
The case has been assigned to U.S. District Judge George C. Hanks Jr., who has scheduled an initial conference for June 27.
Stamm is represented by Nomaan K. Husain of Husain Law Associates.
Counsel for Delta had not filed an appearance as of Monday.
The case number is 4:25-cv-01145.
Pro Se $107M Suit Filed Against Death Row Records
Death Row Records is one of more than a dozen defendants named in a concise, five-page lawsuit filed by a pro se litigant alleging she’s owed $107 million
Lydia Harris, who identifies herself as the cofounder of Death Row Records, filed her lawsuit March 18 alleging she’s entitled to the funds pursuant to a “court-ordered judgment issued by the Los Angeles Superior Court in March 2005.”
Harris, a resident of Sugar Land, also named Suge Knight, Snoop Dogg, Interscope Records, Interscope Communications, Jimmy Iovine, Ted Field, Time Warner, David Cohen, Universal Music Group, Lucian Grainge, David Kenner and Mickey Shapiro as defendants. As of Monday, counsel for the defendants had not filed an appearance.
The lawsuit alleges Harris was “legally awarded” the $107 million judgment after the defendants named in this lawsuit “willfully obstructed judicial discovery, refused to comply with court orders, and engaged in fraudulent legal maneuvers to evade accountability.”
“Defendants’ refusal to participate in court-mandated discovery led directly to the court issuing a default judgment against them,” Harris told the court.
She is accusing the defendants of fraud, civil conspiracy, obstruction of justice and abuse of process.
The case has been assigned to U.S. District Court David Hittner
The case number is 4:25-cv-01266.
Northern District of Texas
CBS Says Trump’s Lawsuit is ‘An Affront to the First Amendment’
Earlier this month, Paramount Global and CBS Broadcasting hit back against a lawsuit filed by President Donald Trump accusing the media companies of violating the Texas Deceptive Trade Practices Act, saying the lawsuit is “an affront to the First Amendment and is without basis in law or fact.”
Trump filed the lawsuit seeking $10 billion in damages in October after CBS ran a story on its 60 Minutes and Face the Nation news programs that featured an interview with Vice President Kamala Harris. Trump alleged the footage of the interview was improperly edited to make her answer to Bill Whitaker’s question less “incoherent” and more “succinct.” The question related to Israeli Prime Minister Benjamin Netanyahu and the Israel-Hamas war.
CBS has released an unedited transcript of the entire interview and argued in its motion to dismiss the lawsuit that the unedited transcript proves and plaintiffs have conceded that “CBS did not manufacture an answer or substitute in the answer to a different question, but simply aired different ‘part[s] of a single answer’ to a single question on Face the Nation and 60 Minutes.”
“If the First Amendment means anything, it means that public officials like plaintiffs cannot hold news organizations like CBS liable for the simple exercise of editorial judgment,” the motion reads.
U.S. District Judge Matthew Kacsmaryk is presiding over the case and has given Trump until April 28 to respond to the motion to dismiss.
Trump is represented by Edward A. Paltzik of Bochner PLLC in New York, Daniel Z. Epstein of America First Legal and Chris D. Parker of Farris Parker & Hubbard in Amarillo.
CBS and Paramount are represented by Thomas C. Riney and C. Jason Fenton of Underwood Law Firm, Marc. A. Fuller of Jackson Walker and Elizabeth A. McNamara, Jeremy A. Chase and Alexandra Perloff-Giles of Davis Wright Tremaine.
The case number is 2:24-cv-00236.
U.S. Court of Appeals for the Fifth Circuit
Coast Guard Members’ Covid Vaccine Suit Not Moot
In a 2-1 opinion issued March 20, a panel determined U.S. District Judge Mark Pittman got it wrong when he dismissed as moot a lawsuit challenging a Covid-19 vaccine mandate brought by members of the U.S. Coast Guard.
The federal government had argued that the lawsuit brought by lead plaintiff Eric Jackson should be tossed because it had rescinded the policy being challenged. In issuing its opinion, the Fifth Circuit pointed to a declaration from a retired Coast Guard Vice Admiral claiming that “the mandate’s rescission will not halt the harm” faced by servicemembers who refused vaccination.
Judge Leslie H. Southwick authored the court’s opinion, referencing the retired admiral’s declaration that “service reputation is important for promotions.”
“Because the Coast Guard continues to consider the vaccination mandate a ‘lawful order,’ the service reputation of those who refused to follow it is tarnished.,” Judge Southwick wrote. “The Vice Admiral explained, however, based on his experience, this harm could be remedied by a court order declaring the mandate unlawful. Taking the plaintiffs’ well-pled facts as true, we conclude it is still possible for a court to grant effectual relief.”
Judge James L. Dennis dissented, writing that “the plaintiffs no longer face any cognizable injury redressable by this court, rendering their suit moot.” Additionally, he wrote there was no evidence that any of the plaintiffs have been denied promotions based on their refusal to get vaccinated.
“These concerns are hypothetical and are belied by the fact that the Coast Guard has already promoted plaintiff Marcenelle, and recommended plaintiff Stone for promotion,” he wrote. “Thus, the case is moot and should be dismissed according to our normal practice.”
Judge James C. Ho wrote in a one-paragraph concurrence that he was “pleased” the court didn’t make the same mistake he believes it made in dismissing as moot “a challenge by a group of Navy SEALS to the Navy’s mandatory COVID-19 vaccination policy.”
“I agree that our decision in Navy SEALs is distinguishable and thus does not compel dismissal here (and the dissent does not contend otherwise),” he wrote. “Accordingly, I concur.”
The plaintiffs are represented by Michael G. McHale, Stephen M. Crampton, Mary Catherine Hodes and Nathan Loyd of Thomas More Society, Charles Fillmore of Fillmore Law Firm, Adam Hochschild of Hochschild Law Firm and Paul M. Jonna of LiMandri & Jonna.
The federal government is represented by Sarah Griffin and Cody T. Knapp of the Department of Justice.
The case number is 23-11038.