I have personally handled more than fifty appeals in a wide range of state and federal courts. I did not win them all, regrettably, but I greatly relish those I did win. In particular, the most gratifying have been those that succeeded in the face of “accepted wisdom,” ingrained assumptions, and established practices to the contrary. A few examples:
Guardian ad litem fees. See Ford Motor Company v. Stewart, Cox, and Hatcher, P.C., 390 S.W.3d 294 (Tex. 2013); Ford Motor Company v. Garcia, 363 S.W.3d 573 (Tex. 2012); Ford Motor Company v. Chacon, 370 S.W.3d 359 (Tex. 2012); Land Rover U.K. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006). Each of these decisions reversed an award of fees the defendant had been ordered to pay to the court-appointed guardian ad litem for his review of a proposed settlement on behalf of a minor plaintiff. In each case, the lower courts had held the award fully supported by the evidence and entirely justified by long-established custom and practice. In each case, the Texas Supreme Court disagreed and, through these decisions, placed significant restrictions on the freedom of trial courts to order defendants to pay such fees – a practice that was once essentially unreviewable.
Punitive damages. See Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012). Reversed and rendered entire punitive damage award in an employment wrongful discharge case. Both lower courts thought this award fully justified because it had been supported by evidence purporting to show that the defendant (the employer) had directed the plaintiff (the employee) to engage in conduct that would have put people at risk on the public highways – although no one was ever injured by that conduct. In short, those courts thought it sufficient that there was evidence the defendant had done something “bad.” The Texas Supreme Court disagreed, holding that a civil court judgment cannot be used to punish conduct that caused no actual harm.
“Secondary exposure” to asbestos. See Campbell v. Ford Motor Company, 206 Cal. App. 4th 15, 141 Cal. Rptr.3d 390 (Cal. App. 2012). Reversed and rendered judgment against premises owner in an asbestos-exposure case. In the first reported decision on this issue in that state, the California Court of Appeals held that a premises owner owes no legal duty to the family members of workers on its property to protect those family members from asbestos fibers the workers may carry home on their clothing.
See also Ford Motor Company v. Miller, 260 S.W.3d 515 (Tex. App. – Houston [14th Dist.] 2008, no pet.). This reversed and rendered a $10 million judgment against the premises owner in another asbestos-exposure case. The central issue was whether, under Michigan law, the premises owner owed any legal duty to a plaintiff who was never on the property but who developed mesothelioma purportedly caused by asbestos fibers carried home on the clothing of a family member who worked on that property. The Houston Court of Appeals certified that question to the Michigan Supreme Court, which, in the first reported decision on the issue in that state, answered the question in the negative. See In re Certified Question from the Fourteenth District Court of Appeals of Texas, 740 N.W.2d 206 (Mich. 2007).
Widely-used evidence that was legally meaningless. At least two appeals resulted in decisions rejecting the central evidence on which plaintiffs had been routinely basing their claims against product manufacturers. See Ford Motor Company v. Wiles, 353 S.W.3d 198 (Tex. App. – Dallas 2011, pet. denied). This reversed and rendered a $7.3 million judgment. The court of appeals agreed that the evidence of an alleged defect in the vehicle, a theory developed and presented by a widely-used plaintiffs’ engineering expert witness, was so lacking in underlying scientific support that, as a matter of law, it could not support a jury verdict against the defendant — even where that evidence was admitted without objection at trial.
See also Smith v. Kelly-Moore Paint Company, Inc., 307 S.W.3d 829 (Tex. App. – Fort Worth 2010, no pet.) This affirmed a summary judgment for the product manufacturer in an asbestos-exposure case. The plaintiff, a professional drywall worker, claimed that exposure to asbestos in the defendant’s joint compound had caused his mesothelioma. The court of appeals held that, as a matter of law, the collection of epidemiological studies and expert opinions the plaintiffs’ asbestos bar had been routinely using as evidence for many years could not meet the legal standards necessary to establish causation and did not raise a fact question worthy of a jury trial on that issue.
Discovery into potential juror misconduct. See Ford Motor Company v. Castillo, 279 S.W.3d 656 (Tex. 2009). Reversed lower courts’ refusal to allow discovery into peculiar circumstances under which the jury foreman had sent a note that provoked settlement during deliberations by asking “what is the maximum amount that can be awarded.” The jury had not yet reached the damage questions and instead appeared headed to a take-nothing verdict with which the foreman disagreed. Both lower courts denied discovery on the ground that it would improperly invade jury deliberations. The Texas Supreme Court disagreed, noting that the integrity of the jury process would be served by finding out whether there had been a manipulation of that process to prevent the jury from reaching a verdict.
Court’s instructions to the jury. See Ford Motor Company v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Reversed judgment against product manufacturer in strict liability case. The Texas Supreme Court declared erroneous the definitions of “manufacturing defect” and “producing cause” that had been officially endorsed by the Texas Pattern Jury Charges decades earlier. The Court agreed that, although trial judges and legal practitioners in Texas had routinely used these definitions without question for many years, they did not – in fact — accurately tell the jury what the law required the plaintiff to prove.
Trade secrets. See In re Ford Motor Company, 211 S.W.3d 295 (Tex 2006). Obtained a writ of mandamus to preserve the confidentiality of Volvo Car Company vehicle design and testing procedures. The lower courts had held those materials “non confidential” because they had been inadvertently released to the public by a court official in Florida and then quickly posted on an Internet website by a plaintiffs’ advocate. The Texas Supreme Court held this disclosure did not waive trade secret protection because the disclosure had been done by those beyond Volvo’s control and despite its strenuous efforts to protect the secrets.
Evidence of other accidents. See Nissan v Armstrong, 145 S.W.3d 131 (Tex. 2004). In this case, I submitted an amicus brief for the Product Liability Advisory Council. That brief asserted the position, ultimately adopted in the decision of the Texas Supreme Court, that the plaintiffs’ evidence of a large collection of other allegedly-similar incidents of sudden acceleration was inadmissible hearsay not within any recognized exception. Consistent with widely-accepted practice, both lower courts held the evidence fully admissible because it was not being offered to prove the statements in the evidence were true, but only to prove that the defendant had received “notice” of those statements. The Texas Supreme Court explained that the hearsay rule cannot be so easily evaded; the relevance of this alleged “notice,” after all, would depend on the assumption that the statements in the evidence were true — precisely what the hearsay rule was meant to prohibit.
Plaintiffs’ standing to assert a decedent’s claim. See Ford Motor Co. v. Cammack, 999 S.W.2d 1 (Tex. App. – Houston [14th Dist.] 1998, pet denied). Reversed punitive damage claim against product manufacturer in strict liability wrongful death case. By law, the named plaintiffs could pursue such a claim only on behalf of the estate of the girl who had died in the accident. Although the plaintiffs had followed what had become the common practice in asserting such a claim, the Court of Appeals held that the plaintiffs had not, in fact, complied with the steps necessary to represent the estate.
Attorney-client communications. See Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995). Obtained writ of mandamus to protect the confidentiality of communications between corporate officers and their counsel in Michigan. The lower courts had held the communications discoverable because they would not have been protected under the law of Texas, where the legal proceeding was underway in which the discovery was being sought. The Texas Supreme Court disagreed, recognizing that each state has the right to determine the scope of the privilege for attorney-client communications occurring within its borders.