In this edition of Litigation Roundup, a Houston firm gets a $9.8 million verdict in a workplace fatality case while the Texas Supreme Court agrees to decide both if a libel suit brought against a newspaper by a prosecutor should be tossed and if a $25.9 million product liability jury verdict against Honda can stand.
Have a development you think is worthy of a mention in the next Litigation Roundup? Please let us know at tlblitigation@texaslawbook.net.
Reeves County
Jury Unanimously Sides with Owner, Operator in Well Damage Suit
The owner and operator of oil wells in Reeves County who alleged neighboring owners and operators were responsible for the increased amount of water and decreased amount of oil being produced from their wells were recently vindicated by a jury that unanimously agreed with them.
Reeves County District Judge Mike Swanson on May 12 entered final judgment awarding PPC Energy and Priest Petroleum Corporation $10.6 million in actual damages, $2.5 million in prejudgment interest and post-judgment interest of 7.5 percent until the judgment is paid.
A jury determined Basic Energy Services was 60 percent responsible, NGL Water Solutions Permian was 30 percent responsible and APC Water Holdings was 10 percent responsible. The jury also found defendant Goodnight Midsteam Permian was not at all responsible.
PPC and Priest reached settlements with NGL, APC and Goodnight prior to trial. In a second amended petition PPC and Priest filed in March 2021, they alleged problems began in August 2019, when some of their wells began “flowing water at the service,” which forced them to “kill one of their wells to prevent imminent environmental damage and contamination of the surface.”
That increase in water meant oil production slowed “and even ceased” at its wells, PPC and Priest alleged. PPC and Priest told the court they asked Basic to shut-in the well they believed was causing the problem but Basic refused.
“By allowing injected water to permanently drown plaintiffs’ wells and productive intervals, Basic committed gross negligence,” PPC and Priest alleged. “Among other reasons, Basic’s conduct involved an extreme degree of risk considering the probability and magnitude of the potential harm to others and Basic had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of plaintiffs.”
PPC and Priest are represented by James E. Key and Michael K. Reer of Harris Finley & Bogle and Greg M. Holly of Monahans, Texas.
Counsel information for the defense wasn’t available Monday.
The case number is 20-01-23355-CVR.
Leflore County, Mississippi
Abraham Watkins Gets $9.8M Win in Fatal Boom Lift Trial
A jury recently found that Genie Industries defectively designed a piece of equipment used to lift workers into the air and that there were safer design alternatives the company was aware of that could have prevented the death of a county employee who crashed 30 feet to the ground and later died.
The jury deliberated for about 90 minutes before unanimously determining the TZ-34/20 Trailer Mounted Boom Lift was manufactured without a critical safety part in the lawsuit brought by the family of Leroy Anthony. The jury assigned 90 percent of the responsibility for the fatal incident to Genie.
At trial, jurors heard that a safety mechanism that is designed to prevent excessive friction at the boom lift’s assembly joint was missing on the model Anthony was using, which allowed the boom’s lift arms to separate and allowed the work platform to fall.
Genie had argued that Leflore County failed to maintain and inspect the piece of equipment and that warnings and instructions were not followed.
Circuit Court Judge Carol White-Richard presided over the trial that ended May 23.
The Anthony family is represented by Benny Agosto Jr., Lena Laurenzo and Jon Agosto of Abraham Watkins Nichols Agosto Aziz & Stogner and Edward Blackmon Jr. of Blackmon & Blackmon.
Genie Industries is represented by Paul Cassisa and Beau Cole of Butler Snow.
The case number is 2019-0074.
Northern District of Texas
Parties in Oversight Board Authority Case Ask for Magistrate Mediator
The parties in a lawsuit challenging the authority of the U.S. Public Company Accounting Oversight Board have asked U.S. District Judge Karen Gren Scholer to appoint a magistrate judge to oversee mediation, citing financial constraints of the John Doe plaintiff that make the $4,000-per-side fee for private mediation before retired Judge Royal Furgeson unaffordable.
In reports filed with the court May 30, both John Doe and the Board said they were agreeable to having Judge Furgeson preside, but Doe told the court he’s being represented in this lawsuit pro bono and can’t afford the former Western District of Texas judge’s fee.
Doe, who identifies himself as an accountant who previously worked as an auditor at a firm in Colombia, filed suit in January, asking the court to stop the Board “from continuing its unlawful and unconstitutional prosecution of him in secret disciplinary proceedings” on grounds that it violates the constitution.
He alleges he became the target of a Board investigation in 2019 stemming from his alleged failure to cooperate with an audit of an unnamed company’s 2015 financial statements.
Doe has until June 13 to file a motion in opposition to the Board’s April 14 motion to dismiss the suit.
Doe is represented by Katherine Addleman and Ronald Breaux of Haynes Boone, Russell Ryan of New Civil Liberties Alliance and Ian Roffman of Nutter McClennen & Fish.
The Board is represented by Donald Verrilli Jr., Elaine J. Goldenberg, Ginger D. Anders, Dahlia Mignouna and Elissa A. Walter of Munger Tolles & Olson, Paul Watler, Marc Fuller and Hannah Walsh of Jackson Walker and Jeffrey Lamken of MoloLamken. The United States is represented by Richard Guiltinan of the Department of Justice.
The case number is 3:23-cv-00149.
District of North Dakota
Kirkland Beats Class Claims, Gets Dismissal in Royalty Payment Spat
Whiting Oil and Gas won’t have to face a proposed class action lawsuit alleging it had made untimely interest payments to oil and gas royalty owners, after U.S. District Judge Daniel L. Hovland signed an order May 15 dismissing the claims brought by Hystad Ceynar Minerals.
Hystad had alleged in the suit filed in August 2022 that Houston-based Whiting — which has since merged with Chord Energy — had been violating a North Dakota statute with the untimely payments since 2016. But Whiting argued, and Judge Hovland agreed, that the allegations of the class members were too individualized to be handled in a class action lawsuit.
Whiting Oil and Gas is represented by Anna Rotman, Kenny Young and Ragan Naresh of Kirkland & Ellis and Paul Forster and Zachary R. Eiken of Crowley Fleck.
Hystad Ceynar Minerals is represented by George A. Barton, Stacy Burrows and Seth K. Jones of Barton and Burrows and Joshua A. Swanson and Robert B. Stock of Vogel Law Firm.
The case number is 1:22-cv-00138.
Texas Supreme Court
Justices to Hear Newspaper’s Bid to End Libel Suit
An East Texas newspaper will get review of lower court decisions not to dismiss a libel suit filed by a prosecutor against the newspaper that linked him to the notorious wrongful conviction of Michael Morton.
Tommy Lamar Coleman alleges he was defamed by an article that tied him to Morton’s case from a time when he worked as an assistant district attorney in Williamson County. Coleman was later hired as an assistant prosecutor in Polk County.
He was the subject of an article in the Polk County Enterprise published in 2020 as part of an ongoing series about the need for criminal justice reform. Valerie Reddell, an editor at the twice-weekly paper, described Coleman as assisting “with the prosecution of Michael Morton.”
Coleman argues the statement is false because he was 17 years old at the time Michael Morton’s case was prosecuted in 1987. Coleman says he was employed by the Williamson County DA’s office from 2008 to 2012, when Morton’s conviction was overturned, but said he never appeared as counsel for the State of Texas in any of the post-conviction proceedings.
The article stated that Coleman was seen in a courtroom mocking Morton’s effort to obtain DNA testing on a bloody bandana found near the home where Morton’s wife was murdered. The bandana was tested and DNA found in the blood exonerated Morton and identified the actual killer.
Morton’s exoneration was national news in 2011, and the district attorney who had opposed the testing, John Bradley, was defeated for reelection. According to briefs filed in the case, Coleman was one of the prosecutors terminated by the new DA.
The newspaper published a correction that Coleman was not involved in the Morton trial and prosecution.
The trial court denied Polk County Publishing Company’s motion to dismiss the libel suit under the Texas Citizens Participation Act. The Ninth Court of Appeals affirmed, holding that the average reader would have understood from the article that Coleman was involved in Morton’s initial prosecution, not the post-conviction habeas proceedings.
Reddell and the newspaper argued in its petition for review that the article was substantially true, and that Coleman failed to meet his TCPA burden as a limited-purpose public figure. Coleman argued in his response that his affidavit and the publication’s correction are evidence of the statement’s falsity.
Polk County Publishing Company is represented by Ryan Gertz of Beaumont and Reddell is represented by K. Susie Adams of Livingston.
Coleman is represented by Tanner G.M. Franklin of Etoile.
The case is number 22-0103.
Honda Gets Review in $25.9M Product Liability Case
American Honda Motor Co. will get a chance to argue before the state’s high court that a Dallas County jury’s $25.9 million award against it, in a product liability suit brought by a woman who alleges a seatbelt design left her quadriplegic, should be wiped out.
Sarah Milburn sued the automaker after she was involved in a 2015 rollover accident while she was a passenger in the third-row middle seat of a 2011 Honda Odyssey. That model, according to court documents, is equipped with a ceiling-mounted detachable anchor seatbelt system. It differs from traditional designs because the detachable anchor allows the seat belt to disengage from the seat and retract into the ceiling, and if the belt isn’t latched into the anchor it leaves the passenger’s lap unbelted.
Milburn hung upside down by the shoulder strap portion of her seat belt after the car was struck by a pickup truck and rolled over during an Uber ride. The other passengers left the vehicle unassisted, and Milburn suffered quadriplegia paralysis.
After a jury trial, Dallas County Judge Tonya Parker entered judgment in favor of Milburn.
Honda filed its petition for review with the high court in March 2022, challenging the Fifth Court of Appeals’ November 2021 decision upholding the award. On appeal, the automaker alleges it is shielded from liability under Texas Civil Practice and Remedies Code section 82.008.
Honda alleges Milburn was required to present expert testimony from a “regulatory expert” to rebut the presumption of nonliability on regulatory inadequacy grounds found in section 82.008 but failed to do so. The federal government “considered and authorized the design Honda chose,” it argued in briefing.
“The Legislature has provided that a car manufacturer is presumptively ‘not liable’ under a products-liability theory if the product’s design complied with mandatory federal safety standards, which the design at issue here indisputably does,” Honda argued.
A date for oral arguments was not set as of Monday.
Honda is represented by Wallace B. Jefferson, Rachel A. Ekery and William J. Boyce of Alexander Dubose & Jefferson, Kurt C. Kern and Yesenia E. Cardenas-Colenso of Nelson Mullins and Scott P. Stolley of Stolley Law.
Milburn is represented by Jeffrey S. Levinger of Dallas, James L. Mitchell of Payne Mitchell Law Group and Charla G. Aldous and Brent R. Walker of Aldous\Walker.
The case number is 21-1097.
Editor’s note: Janet Elliott contributed to this report.