Indivisible injury and joint trial
INTRODUCTION
This memorandum seeks to explain whether a Plaintiff injured in an auto accident , hurts the same area of his body in a second accident, before his healthcare providers have had an opportunity to properly evaluate the injury, can try his case jointly with the defendants having the burden of proof of their percentage of contribution to the injury.
ANALYSIS
While “indivisible injury” is not specifically formally defined, the former rule in Texas was that there could be no joint liability where two or more persons caused an indivisible injury unless there was concert of action or unity of design. Burns v. Lamb 312 S.W.2d 730, 731 (Tex.Civ.App.1958) citing to Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713. This changed with the Texas Supreme Court’s decision in Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 254 (1952). The court noted that [w]here the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.” Id. at 256. Causes of an occurrence can be concurrent when they act contemporaneously to produce a given result. Rodriguez v. Moerbe, 963 S.W.2d 808 , 819 (Tex.App.-San Antonio 1998) pet. denied. A “new and independent cause” is an act or omission of separate and independent agency that destroys causal connection between negligent act or omission of defendant and injury complained of, and thereby becomes immediate cause of such injury. Id at 810. Nevertheless, where the tortious acts of two or more wrongdoers join to produce an indivisible injury all wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed against any one separately or against all in one suit. Landers, 151 Tex. at 256.
The Rules of Civil Procedure bestow upon trial courts broad discretion in the matter of consolidation and severance of causes, and the trial court's action in such procedural matters will not be disturbed on appeal except for abuse of discretion. Womack v. Berry 156 Tex. 44, 50 (1956). Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). The three part test employed by Texas trial courts in determining whether to grant a severance are whether: (1) controversy involves more than one cause of action; (2) severed claim is one that could be asserted independently in separate lawsuit; and (3) severed actions are not so interwoven with other claims that they involve same facts and issues. Hamilton v. Hamilton, 154 Tex. 511, 514 (1955); see also TEX. R. CIV. P. 41. The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience. Liberty Nat. Fire Ins. Co. v. Akin , 927 S.W.2d 627, 629 (Tex.1996). For example, in In re Martin, 147 S.W.3d 453, 453 (Tex. App. Beaumont 2004), leave of court, for swimming pool owners to file third-party petition against a three-year-old child's uncle, who allegedly had been responsible for supervising the child when child wandered away, fell into pool, and drowned, was warranted, in the mother's tort action against pool owners. Id. at 453 The Court noted that considerations of efficiency and consistency suggested liability of all responsible parties should be determined in one lawsuit with one jury considering appropriate percentage of responsibility for each party's conduct, and it did not appear the third-party petition would cause unreasonable delay or expense. Id. at 457 Finally, severance is proper only where the suit involves two or more separate and distinct causes of action and each cause into which action is severed must be such that it might properly be tried and determined as if it were only claim in controversy. Kansas University Endowment Ass'n v. King, 350 S.W.2d 11 (Tex.1961).
A “new and independent cause” is defined as an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. Young v. Massey, 128 Tex. 638, 639 (1937). For example, in Rodriguez v. Moerbe, 963 S.W.2d 808, 819 (Tex.App.1998), the court looked at the injury and found that because the injury was contemporaneous, the cases were to be tried together. The Rodriguez court noted that “new and independent cause and superseding cause are sometimes used interchangeably. Id. at 820 n. 11. The Roddriguez court referred to six criteria it deemed useful in determining whether an act is a concurring or a new and independent cause. Id. at 820. The criteria are as follows:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operations;
(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, it is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
Id. at 820.
In CTTI Priesmeyer, Inc. v. K & O Ltd. Partnership, 164 S.W.3d 675 (Tex. App. 2005) it was stated that defendant can be held jointly and severally liable in tort claims on the basis of the conduct of the defendants and the nature of the injury caused to the plaintiff. Id. at 684. “If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct.” Id.
In Phillips v. Gulf & South Am. S.S. Co., the plaintiff contended that the separate injuries to his back sustained as the result of the separate acts of negligence by the separate defendants on separate occasions caused one indivisible injury. 323 S.W.2d 631 (Tex.Civ.App.1959). The court noted the importance of producing a singular injury out of the separate acts, stating that “though it is true that the separate acts of offending parties need not occur simultaneously, we believe that it must be shown that they joined together to produce one and the same injury.” Id. at 635. The court held that this was not the case and that there were in fact two distinct injuries—the original injury and the aggravating injury and they were not so related that defendants could not sever the two. Id. at 635-36.
In Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), the court had held that the defendants could be held jointly and severally liable for the total damages suffered by the plaintiff. Id. at 1095. Plaintiff, an industrial insulation worker, had filed a suit against defendants who were manufacturers of insulation materials which contained asbestos. Id. at 1081. Plaintiff alleged that the defendants had breached their duty by failing to warn plaintiff of the dangers involved in handling asbestos. Id. Plaintiff suffered from the diseases of asbestosis and mesothelioma due to being exposed to defendants products for over a period of 33 year beginning in 1936 and ending in 1969. Id. The court took note of the difficulty of determining exactly what particular exposure to asbestos caused the injury and that exposure was probably collective and that each exposure could have caused an individual or separate injury. Id. at 1094. The court held that each defendant was the cause in fact for some injury caused to plaintiff. Id. The court concluded that each defendant was liable to the plaintiff. Id. The Court also considered the apportionment of damages among the defendants and, applying the principles of Lander, held that the defendants could be held jointly and severally liable for the total damages. Id. at 1096.
It appears that a court will not sever if the injuries do not produce a singular injury. Phillips dealt with an individual injury followed by an aggravating one. 323 S.W.2d at 635. Borel dealt with a singular injury—asbestosis—which was resulted from the multiple acts (or omissions) of multiple defendants. Borel, 493 F.2d at 1096. It appears, as long as the injury is a singular one, and its cause could stem from either or both of the possible causations, that severance is improper. However if the first action caused the injury and the second one was an aggravation, then a court should sever the cases as per Phillips.
The test really isn’t in terms of time between accidents but in the practical ability of a health care provider to make a reasonable diagnosis before the second event. Assume that a client is involved in a wreck and presents to the Emergency Room. He receives meds and told to see his doctor. Before his visit to the doctor he is in a second accident. Later an MRI reveals a significant rupture of a disc of recent origin but the radiologist can not determine which wreck might have caused the rupture. In my career I have had several cases in which a definitive diagnosis of my client was not made before a second injury to the same area of the back. If I had tried them separately, each defense attorney would have argued that the other wreck caused the injury and that I had the burden of proof. Of course, I could argue that the injuries were either caused or aggravated by the second incident. The cleaner and easier way to approach the case is in a joint trial with the judge instructing the jury that it is the burden of the defendants to prove share or they are jointly and severally liable.
CONCLUSION
Time does not necessarily become the deciding factor as to whether the defendants may be joined. It is, rather, the nature of the injury and the ability, or inability, to prove exact causation. If in fact multiple causes produced an injury, a case may not be severed and each party would be jointly and severally liable. The three part test used by the Womack court would be applicable. To put it bluntly, the more confusing a mess is, the more likely a court will allow joinder of defendants. www.bailey-law.com
Areas of Law Practice
Personal Injury Trial Law
Injury can occur as a result of someone's negligence, for example, a drunk driving a car or truck. Anyone violating traffic law or being reckless can be the fault of injuries to another. The law recognizes damages for pain, anguish, physical impairment, loss of earning capacity, medical expenses and disfigurement. Also, in the event of death or serious bodily injury, family members have the right to recover for the loss of the love and support caused by the fault of another. I am board certified in personal injury trial law and have tried close to 200 jury trial to verdict.
Products Liability
A specialized area of personal injury trial law involves products that are unreasonable dangerous by the nature that they are designed, manufactured or marketed and cause injury to a consumer or bystander. This is a complex area of litigation that requires an attorney capable of building a technical case against corporations well equipped to avoid their legal responsibility. Products can range from pharmaceuticals to automobiles. All manufacturers owe a duty to make their products reasonably safe especially if any defect is not one easily recognizable by the consumer. Many times companies worry too much about beating competition in getting out a new product and worry too much about marketing and profit to take the time they need to properly explore potential dangers or risks to which their customers might be exposed. One only needs to look at the recalls posted by consumer groups to realize this is a current and on-going problem.
Constitutional Law
The United States Constitution guarantees rights that are common to all citizens. Discrimination based upon race color or creed is against our national laws and our courts protect individuals who have been victims of such practices. Also, certain statues such as the American Disabilities Act provide protection for those of us who have handicaps. Large employers must provide work duties to those who have become disable if they exist. Laws protect workers who are discriminated against because of age.
Toxic Pollution and Disease
Companies that emit pollution in the air, water or soil can cause serious injury and disease. Not only can workers be exposed to emissions at work, but neighbors can as well. The most vulnerable, pregnant women, children and the elderly have been sacrificed in the name of profit and production. The right to be free from toxic waste is one that should be guarded and a handful of lawyers have fought for these rights. The federal government is sadly too under funded and the task falls, many times, on the families exposed to fight back. This requires a lawyer willing to undertake such a monumental task on a contingent fee basis. Some companies add to their profits by using private and public land and waters rather than take responsibility for the costs of disposing of the wastes from their production. Landowners discover that under their land or in their streams lies storage for the worst pollutants the companies simply chose to let run free. Many of us become unwitting garbage collectors of wastes that will remain on or under our land for centuries. The law has remedies for these transgressions both for disease caused and desecration of the private and public lands we own.
General Civil Litigation
Attorneys can resolve disputes by filing or defending civil lawsuits. The type of lawsuits besides civil is criminal. Lawyers with different specialties try criminal cases in which the State is seeking penalties for a criminal violation. Besides personal injury litigation, the courts are used to resolve other civil disputes. Examples are: contract disputes; failure of an insurance company to pay its insured for a loss; consumer protection if a product or service doesn’t live up to its warranty.
One notable experience consumers have is suffering damage to their home or business because of a storm or fire, yet the insurance company that has taken premiums over the years takes no interest in putting their insureds back as they were before the loss. Many times, because of financial hardships and just plain weariness, the consumer gives up and the insurance company wins.
Sellers of cars and other expensive items call the shots many times for consumers and get away with not providing the quality product or service they promise.
Railroad Law (FELA)
Special federal law entitled Federal Employer's Liability Act. Employees of the railroad are protected by law that is more liberal than local state law regarding injury or death. If the railroad’s negligence is at fault at all in the injury then it is liable for damages. This law was first created in the early years of the industrial revolution when many railroaders were killed or maimed without any hope of compensation for them or their families. The unusually dangerous nature of railroad work has been offset to some degree by this law providing financial security for the workers.
Medical Malpractice
Doctors, nurses and other health care providers owe the same duty to be prudent. Bad outcome does not necessarily equal bad medicine, but when it is proven that a health care provider violated the trust a patient has given them, they should be responsible for the damages. Unfortunately, the Texas legislature and Texas Supreme Court has crippled the ability of those with legitimate claims from receiving a recovery that will protect them from the harm that was done. Most trial lawyers won’t handle Medical Malpractice claims because of the expense in bringing an action and the limitations on recovery. A few lawyers still review these claims as a matter of principal and refusal to dismiss the rights of an injured person.
Business Litigation
Business litigation covers many areas of law. Businesses find themselves in dispute that cannot be resolved without litigation. Issues of fact and law can reach dizzying complexity. The tools used by a personal injury lawyer can give a business an advantage. Plaintiff’s trial lawyers are used to going against multi-billion dollar insurance companies while representing a client with little or no resources. Dogged discovery and trial experience prepares him for the conflict between large and small businesses. Contracts, licenses, territories, patents, copy writes, representations…the list is endless of the issues that a company may find itself in need of a litigation specialist.
Appellate Law
This refers to legal research and argument in higher courts. In Texas courts a decision by a district judge can be appealed to the Court of Appeals and then to the Texas Supreme Court. If a case is in federal court, a decision by the federal district court can be appealed to the 5th Circuit and then the United States Supreme Court. Blake Bailey is licensed to practice in all of these courts. It is a distinct advantage for the trial lawyer to also be schooled in appellate law. This gives him the advantage of trying a case while carefully avoiding error that might get a judgment reversed on appeal. It also puts him in position to keep the opposing counsel from improperly presenting his or her argument.
Maritime Law
The law concerning negligence causing injury. Maritime law covers seamen while assigned to an ocean going ship. This becomes complicated since some offshore drilling rigs qualify as ships. The law for sailors is similar to that of FELA for railroad workers. Work on ships can often be even more dangerous than railroad work. Like FELA this type of litigation has its own unusual terminology and unique law so many attorneys are not well equipped to handle such cases.
Pharmaceutical Deaths or Illnesses
The lawsuits have been in the public consciousness more of late. Most recent news describes how the Federal Food and Drug Administration is under-funded and can not possibly keep up with all the new drugs being pushed to market by the giant pharmaceutical companies such a Merck and Pfizer. Because it is so under-funded and understaffed, it must rely upon the companies pushing the drugs to do the basic research to determine effectiveness and safety. The FDA also has no effective way to follow-up on the drugs once on the market. So, if a dangerous drug is pushed through the FDA approval process, then begins to harm patients, there is really no governmental response.
But for the efforts of plaintiff’s trial lawyers many of the dangerous drugs would continue to harm patients.
Even if a drug is one that has a reasonable use, patients and their doctors must be warned of side-effects and dangerous characteristics. All effective drugs have their downside. The companies reaping the profits of their drugs are not motivated to tell the world of all the complications and the government is impotent to do so. Patients must look out for themselves; keep up with the latest news and consult with their doctors.
If someone gets sick from the medicine that is suppose to help them, they should seek the advice of a trial lawyer who is sophisticated in the science of pharmaceutical litigation.
Nursing Home and Elder Abuse
Taking care of our parents and, someday, us is a big industry. Nursing Homes are health care providers so are protected by the outrageous legislation protecting insurance companies, hospitals, doctors and nursing homes who commit negligent acts, but the rights of a nursing home patient can still be protected by a lawyer willing to fight the system.
The right of the elderly to rely upon the management and staff of a nursing home is as important a right as there is. There should be no compromise in protecting the residents of nursing homes and no nursing home should ever feel it has a license to treat the most vulnerable of us as it wishes.
