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June, 2021

Properly Seeking To Dismiss or Stay A Federal Lawsuit When An Arbitration Agreement Between the Parties Exists

 

Senior Partner Howard J. Klatsky has co-authored a legal article titled “Responding To A Federal Court Complaint When There Is An Agreement To Arbitrate: Courts Are All Over The Map”, published in the Summer 2021 issue of USLAW Magazine. The number of employers and employees who are parties to agreements containing mandatory arbitration provisions has more than doubled over the last several years and, as noted in this article, federal courts throughout the country differ dramatically on the mechanics of how defendants can properly seek to dismiss or stay cases and compel arbitration. Read the article.

 

 

 

June, 2021

Senior Partner William Toles has been selected to join the International Society of Barristers (ISOB).

 

The ISOB was created in 1965 and is dedicated to preserving trial by jury, the adversary system and an independent judiciary. Membership is by invitation only which is proceeded by a rigorous screening process that considers the lawyer’s ability, experience, accomplishments and ethical standards as assessed by trial lawyers and judges.

 

 

 

May, 2021

FeeSmith gets a Big Win for General Contractors at the Texas Supreme Court!

 

On May 7, 2021, the Texas Supreme Court issued an opinion in favor of an FSSV client in a case of great concern to general contractors throughout the State of Texas — JLB Builders, LLC v. Hernandez.  The Court reversed an 8-5 en banc opinion from the full Dallas Court of Appeals that may have significantly broadened general contractor liability for injuries to subcontractor employees.

 

Briefly, FSSV’s client was the general contractor on a high-rise construction project when the employee of a concrete subcontractor, Hernandez, fell from a collapsing “rebar tower” while the subcontractor was engaged in erecting a concrete column, which landed on top of him.  Hernandez sued JLB for negligence and gross negligence, alleging that JLB was responsible for his injuries because it retained contractual and actual control over the subcontractor’s work, and thus owed him a duty of care.  In the trial court, FSSV Senior Partners Brett Smith and Daniel Karp successfully obtained a summary judgment in favor of JLB arguing that, under Texas case law, JLB did not owe any duty to an employee of an independent contractor absent contractual or actual control over the means, methods, or details of the employee’s work.

 

Hernandez appealed to the Dallas Court of Appeals, where FSSV attorneys Smith and Karp, joined by Senior Appellate Counsel Timothy George, successfully defended and upheld the trial court’s judgment.  Thereafter, however, following an election that significantly changed the composition of the appellate court, Hernandez moved for reconsideration en banc and the entire Dallas Court of Appeals, in an opinion split 8-5, decided to overrule the panel and reverse the trial court’s judgment.  The majority concluded that a “cluster of factors” suggested that JLB had enough control over the work to be found liable, including such things as having the ability to schedule work, requiring the use of safety harnesses, performing safety inspections, and perhaps being able to stop the use of a crane on what may have been a “windy day.”

 

FSSV then took the case to the Texas Supreme Court, who agreed to hear JLB’s petition for review on the basis of briefing by Senior Appellate Counsel Timothy George and Appellate Counsel Nathan Winkler, and then heard oral argument from FSSV Senior Partner Brett Smith.  In its subsequent opinion, issued today, the Texas Supreme Court has clarified and emphasized what has long been the law in Texas — a general contractor cannot be liable for injuries to subcontractor employees on the basis of mere general supervisory authority, but must instead have controlled the work or had the right to control the work down to the level of operative detail over the work being performed so as to be truly responsible, at least in part, for the injury that occurred.  By upholding this basic principle, FSSV has come to the aid of general contractors throughout the State of Texas, who should not now be afraid that simply scheduling work, conducting inspections or requiring basic safety precautions can lead to unwarranted liability.

 

 

 

May, 2021

FEE SMITH congratulates Tom Fee and William Toles for being selected as D Magazine Best

Lawyers.

 

FEE SMITH is a Texas trial firm that provides legal representation for companies and individuals in high-exposure and high-profile cases in federal and state courts throughout the United States. The attorneys of FEE SMITH have served as litigation and lead trial counsel for clients in a broad range of matters, including personal injury torts involving catastrophic injury or death, professional liability, construction defect matters, and commercial business litigation. The firm litigates and arbitrates lawsuits involving major transportation accidents, construction accidents and defects, premise liability, products liability, and matters involving commercial and business disputes. FEE SMITH attorneys regularly serve as lead trial counsel for companies and individuals facing multi-million-dollar exposures.

 

FEE SMITH maintains offices in Dallas, Austin, and Houston. The firm has extensive experience in litigating cases in Texas arising from major commercial transportation accidents involving allegations of Federal Motor Carriers Safety Regulations violations, construction accidents involving allegations of OSHA violations, highway construction accidents involving issues concerning the Manual on Uniform Traffic Control Devices, and accidents arising from the installation and operation of various private and public utilities, including electric, gas, and water. FEE SMITH has tried numerous large exposure cases across Texas involving products, professional and premise liability matters. FEE SMITH also is regularly retained as lead trial counsel for a number of the firm's corporate clientele to represent them in various commercial business and labor/employment matters. FEE SMITH’s practice and philosophy to assess the value of a case in the early stages of litigation and to implement an aggressive strategy in order to litigate the case at the time of trial or to force a reasonable settlement is appreciated by its clientele.

 

 

 

April, 2021

FSSV Lawyers Zoom Into A Zero Damages Verdict

 

Bryan Reese and James Johnson received a zero damages verdict after a 2 week Zoom jury trial in District Court in San Antonio, Bexar County, Texas.

 

The case stemmed from a parking lot collision wherein our client’s tractor-trailer backed into another 18-wheeler at a truck stop in Tennessee. It was alleged both Plaintiffs were injured and/or thrown from their bunks in the sleeper berth upon impact.

 

The Plaintiffs were represented by Arnold & Itkin of Houston, Texas and the Gamez Law Firm of San Antonio, respectively. The case was one of clear liability and special damages alleged were in excess of $2.5 Million with more than $1.0 million in combined past medical expenses. Both Plaintiffs  underwent spine surgery prior to trial and had additional surgery recommendations, including life care plans for each.

 

The Plaintiffs requested over $4.5 million from the jury. While the 12 person jury found 100% liability on the trucking company and driver, the  award was zero on each element of damages. This trial was one of the first virtual jury trials in Texas, and it was likely the longest ZOOM jury trial to date at 2 weeks in length.

 

Congratulations on a job well done Bryan and James.

 

 

 

April, 2021

FeeSmith Partners, Jennifer Lee and Tom Fee circled the wagons at the courthouse
in West Texas.

 

Fee Smith Partners, Jennifer Lee, and Tom Fee traveled to San Angelo, Texas this week and obtained a successful result for their clients, Leo Gamboa and L&M Transportation.

 

The case was tried before legendary Federal Judge, Sam Cummings, of the Northern District. The West Texas jury awarded plaintiff Brendan Smith only $75,000 in this stipulated liability case for his past and future pain, suffering, mental anguish, and impairment. Plaintiff did not seek recovery for his past medical expenses and lost wages at the time of trial. Defendants purchased his $80,000 worker’s compensation lien prior to trial. Mr. Smith sustained a fractured hip and fractured left fibula in the accident basis of the suit. He also sustained a concussion and his attorney claimed he had a TBI at the time of trial. Defendants initially offered $250,000 in an attempt to negotiate a fair and reasonable settlement since this was a clear liability case against the defendant driver Gamboa and the crash was a major impact collision that resulted in plaintiff Smith being careflighted to the ER in San Angelo. Negotiations ended at that point as plaintiff’s counsel Eric Neilsen out of Houston took the position: “The 1 mil policy limit will be paid to settle this case and if not we will be going to trial”. He even requested the court to waive any requirement that the parties attend mediation before trial since there would be no further negotiations other than his 1 mil policy limits demand. Mr. Nielsen asked the jury to award a total of $3 mil to Mr. Smith in his closing argument. Great job by Jennifer Lee as lead counsel on this one who returned to her old stomping grounds in San Angelo where she was formally an Assistant District Attorney. Special thanks and respect to Travis Ginest of CTCM for not giving in to the plaintiff counsel’s demands and allowing us the opportunity to try this case.

 

 

 

February, 2021

Congratulations to the newest Rising Stars Honorees.

 

Travis M. Casey, Ross A, Darville, Ryan Funderburg and Heather L. Winkles

 

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.

 

 

 

October, 2020

Texas Courts Restarting Jury Trials, FSSV Lawyers Among First Involved.

 

On October 19, 2020, FSSV partners Michael Sharp and Robyn Wise tried one of the first, live jury trials in the State of Texas since the Supreme Court of Texas issued Emergency Orders Regarding the COVID-19 State of Disaster.  The trial took place in the United Stated District Court, Western District of Texas, Waco Division with the Honorable Alan D. Albright presiding.  Prior to jury selection, counsel were advised that a jury of 7 would be impaneled, and a unanimous verdict would be required.  Federal courts must begin with a minimum of 6 and a maximum of 12 jurors in a civil case. The court called down a relatively small number of venire men and women in order to allow for distancing during voir dire.  Judge Albright required all parties to submit their questions in advance and conducted most of the voir dire himself, allowing each party only 15 minutes to follow up.  This, coupled with mask requirements, made for a challenging voir dire process and left limited opportunities to strike jurors for cause.  Each party was given 4 peremptory strikes.  Once impaneled, the 7 jurors were seated in the traditional jury box, again with enough space to maintain a safe distance from one another.  Once trial commenced, witnesses took the stand behind a plexiglass enclosure and screens were installed for purposes of presenting exhibits or impeachment testimony.  Counsel were not permitted to approach witnesses or the bench.  Side bar conferences were held during breaks.  Counsel were not required to wear masks while questioning witnesses or while sitting at counsel table, but were required to wear masks elsewhere in the courthouse.  Jurors were required to wear a mask at all times making it difficult to gauge their reactions to arguments, witnesses and evidence.

 

The trial involved the defense of a national motor carrier who stipulated to the negligence of their driver while challenging medical causation, the reasonableness and necessity of medical care, and non-economic damages, including alleged past and future impairment, disfigurement, pain and mental anguish.  The two Plaintiffs alleged spinal injuries with one receiving surgical intervention to the lumbar spine.  In addition to the parties, medical and biomechanical experts testified live.  The jury ultimately awarded only a portion of the damages requested by Plaintiffs at closing, and significantly less than Plaintiffs’ pre-trial demand.

 

After trial was complete, Judge Albright enthusiastically thanked the jurors, the parties, and counsel for resuming their civic duties and participating in the trial process.  We anticipate this particular court will continue to conduct live trials with the protocols referenced above.  With the Texas Supreme Court lifting the ban on jury trials, we anticipate and have reports of, other courts in certain venues resuming trials either live, virtually, or a hybrid combination.  Dallas County initially indicated that it would not resume trials until 2021.  More recently, certain Dallas County judges have announced a plan to begin jury trials sooner while expressing some concern about juror turnout and virtual accessibility.

 

We continue to monitor ever changing data on COVID-19 cases throughout Texas.  In the meantime, assume that trials will resume albeit in varying forms.

 

 

 

 

September, 2020

Congratulations to the newest Texas Super Lawyers Honorees.

 

Thomas W. Fee, Brian G. Cano, Daniel M. Karp, Howard J. Klatsky, Bret A. Sanders and William M. Toles

 

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.

 

 

 

 

 

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