Preview
CAUSE NO. 2007-75537
Pele
BILLY JACK McDANIEL, A’LETA §IN THE DISTRICT COURT
McDANIEL INDIVIDUALLY AND AS §
NEXT FRIEND OF CARNEY §
McDANIEL, A MINOR § we
vs §615" JUDICIAL DISTESCT
§
SMITH INTERNATIONAL, INC., SONERRA § v
RESOURCES CORPORATION, HARBOR § ve aa
PRODUCTS, INC., KIRKHILL MANUFACTURING §
COMPANY A/K/A KMC RUBBER PRODUCTS,
ADVANCED POLYMER TECHNOLOGIES, LLC
§ EE
§HARRIS COUNT, TEXAS
23)
INTERVENORS’ MOTION TO
QUALIZE PEREMPTORY STRIKES
TO THE HONORABLE JUDGE OF SAID COURT
NOW COMES Intervenor, NEW HAMPSHIRE INSURANCE COMPANY, and files
this its Motion to Equalize Peremptory Strikes, and in support thereof would respectfully
show the Court as follows
I
BACKGROUND
This lawsuit involves an explosion which took place on an oil rig on March 3, 2006
Billy Jack McDaniel, an employee of Helmerich and Payne International Drilling Co
sustained serious burn injuries as a result of this explosion. Thereafter, Billy Jack McDaniel
and his family filed suit against Smith International, Inc., the manufacturer of a rotating
control device and component stripper element which allegedly failed on the rig causing the
explosion. The Plaintiff also sued Sonerra Resources Corp., the operator of the drilling rig.
Further, Harbor Products, Inc., the molder of the stripper element, was also sued. Intervenor
is the workers’ compensation carrier for Helmerich and Payne International Drilling Co. and
Billy Jack McDaniel which has paid workers’ compensation benefits to and on behalf of Mr.
McDaniel as required by the Texas Labor Code/Texas Workers’ Compensation Act.
Intervenor filed its Plea in Intervention in this lawsuit immediately after the lawsuit was
filed, and has been an active participant during the discovery process of this lawsuit. In fact,
Intervenor has hired oil field experts who will testify at trial.
Intervenor’s claims are not entirely aligned with the clams being asserted by
Plaintiffs. It is Intervenor’s position that the explosion made the basis of this lawsuit
occurred as a result of a product defect, although the Plaintiff's are also taking the position
that the explosion occurred as a result of operating issues significant to Sonerra Resources
Corporation. Additionally, there has been disagreement between Plaintiffs and Intervenor
with respect to Billy Jack McDaniel’s medical and nursing care issues. As such, both
Plaintiff's and Intervenor have different opinions regarding the liability and damages aspects
of this case making them antagonistic to each other.
Il.
ARGUMENT & AUTHORITIES
While Intervenor’s claims are derivative to the Plaintiff's claims, Intervenor and
Plaintiff's are not entirely aligned in this lawsuit and antagonism does exist between
Plaintiff's and Intervenor.
Ina case in which there are multiple parties on the same side who are antagonistic to
each other, a party may file a motion to equalize the peremptory strikes. Van Allen v.
Blackledge, 35 S.W.3d 61, 64 (Tex. App.—Houston ti4® Dist.} 2000, pet denied). In
deciding whether to equalize the peremptory strikes, the issue is whether the parties on one
side of the case are antagonistic to each other on an issue that will be submitted to the jury.
Id. The purpose of equalizing strikes based on antagonism is to ensure that no party or “side”
has an unfair advantage because of its peremptory challenges. Tex.R.Civ.P. 233; Patterson
Dental Co. v. Dunn, 592 914, 919 (Tex. 1979). The antagonism must be between the
litigants on the same side vis-a-vis each other, not because they each have differing conflicts
with the opposing party. See Patterson Dental, 592 8.W.2d at 918.
Whether there is antagonism between litigants on the same side of a lawsuit is a
question of law. See Garcia v. Central Power & Light Co. 704 S.W.2d 734, 736 (Tex. 1986).
To determine antagonism, the Court must consider the parties’ pleadings, the pretrial
discovery, all statements made during voir dire examination, and any other information
brought to the court’s attention. See Scurlock Oil co. v. Smithwick, 724 S.W.2d 1, 5 (Tex.
1986); Garcia, 737; Tex.R.Civ.P. 233. When antagonistic parties on the same side are
required to share six strikes, it is error amounting to a violation of the basic rights to trial by
jury. See Patterson Dental at 918.
U1.
In this case, Smith International, Inc. and Sonerra Resources Corp. have filed cross-
claims against each other and will contend that they are antagonistic to each other. It is
expected that both Smith International, Inc. and Sonerra Resources Corp. will request six
peremptory strikes a piece, and attempt to limit Plaintiff's and Intervenor with a total of only
six peremptory strikes. Intervenor contends that such an allotment of peremptory strikes
would be unfair to Intervenor and Plaintiff's considering that they are antagonistic to each
3
other. As such, Intervenor would request that the Court also allot Intervenor six peremptory
strikes if in fact Smith International, Inc. and Sonerra Resources Corp. are allowed six
peremptory strikes a piece at trial.
WHEREFORE, PREMISES CONSIDERED, Intervenor respectfully requests that the
Court grant Intervenors Motion to Equalize Peremptory Strikes. Intervenor would also pray
for such other and further relief to which it may be just and entitled, at law or in equity.
Respectfully submitted,
ADAMI, SHUFFIELD, SCHEIHING & BURNS
9311 San Pedro Avenue, Suite 900
San Antonio, Texas 78216
Telephone: (210) 344-0500
Telecopier: (210) 344-7228
Be SNe De
State Bar No. 18316390
ATTORNEYS FOR INTERVENOR,
NEW HAMPSHIRE INSURANCE COMPANY
CERTIFICATE OF SERVICE
Thereby
ae
served on this the 24
counsel of record:
tha it a true and correct copy of the above and foregoing document has been
ry of July, 2009, certified mail, retum receipt requested, to the following
Chris McDaniel CM:RRR 7008 3230 0001 3387 4371
Hortman Harlow Martindale
Bassi Robinson & McDaniel, PLLC
P.O. Drawer 1409
Laurel, Mississippi 39441
Attorneys for Plaintiffs
Douglas Ketterman CM:RRR 7008 3230 0001 3387 4364
Ketterman Rowland & Westlund
16500 San Pedro, Suite 302
San Antonio, Texas 78232
Attorneys for Plaintiffs
Jeffrey S. Davis CM:RRR 7008 3230 0001 3387 4357
Geoffrey H. Bracken.
Peter Scaff
Gardere Wynne Sewell LLP
1000 Louisiana, Suite 3400
Houston, Texas 77002
Attorneys for Defendant, Smith International, Inc.
J. Chad Parker CM:RRR 70083230 0001 3387 4340
W. Todd Parker
The Parker Firm, P.C.
3808 Old Jacksonville Road
Tyler, Texas 75701
Attorneys for Defendant, Sonerra Resources Corporation
Andrew McKinney CM: RRR7008 3230 0001 3387 4333
McKinney & Cooper, L.L.P.
Three Riverway, Ste. 500
Houston, Texas 77056
Attorneys for Defendant, Sonerra Resources Corporation
John C. Kilpatrick CM:RRR 7008 3230 0001 3387 4326
Law Offices of Kilpatrick & White
2777 Allen Parkway, Suite 622
Houston, Texas 77019
Attorneys for Kirkhill Manufacturing Company a/k/a KMC Rubber products
5
Ronald Max Raydon CM:RRR 7008 3230 0001 3387 4319
Law Offices of Ronald Max Raydon
1718 Fry Road, Suite 450
Houston, Texas 77084
Attorney for Defendant Advanced PolymerTechnologies, LLC
Joe Grady Tuck CM:RRR 7008 3230 0001 3387 4302
Law Office of Joe Grady Tuck
1404 Pine Street
Bastrop, Texas 78602
Attorney for Defendant Harbor Products
Derek R. Van Gilder CM:RRR 7008 3230 0001 3387 4296
Law Office of Derek R. Van Gilder
916 Main Street
Bastrop, Texas 78602
Attorney for Defendant Harbor Products
Chris Evans CM: RRR 7008 3230 0001 3387 4289
Adams and Reese
One Houston Center
1221 McKinney, Ste. 4400
Houston, Texas 77010
Attorney for Helmerich and Payne International Drilling Co.
Emest P. Geiger, Jr. CM: RRR 7008 3230 0001 3387 4272
Gieger, Laborde & Laperouse, L.L.C.
1177 West Loop South, Ste. 750
Houston, Texas 77027
Forrest J. Wynn CM: RRR 7008 3230 0001 3387 4265
Beirne, Maynard & Parsons, L.L.P.
1300 Post Oak Blvd., 25" Floor
Houston, Texas 77056
E. WAYNI Ss) ‘LD
Preview
CAUSE NO. 2007-75537 Pele BILLY JACK McDANIEL, A’LETA §IN THE DISTRICT COURT McDANIEL INDIVIDUALLY AND AS § NEXT FRIEND OF CARNEY § McDANIEL, A MINOR § we vs §615" JUDICIAL DISTESCT § SMITH INTERNATIONAL, INC., SONERRA § v RESOURCES CORPORATION, HARBOR § ve aa PRODUCTS, INC., KIRKHILL MANUFACTURING § COMPANY A/K/A KMC RUBBER PRODUCTS, ADVANCED POLYMER TECHNOLOGIES, LLC § EE §HARRIS COUNT, TEXAS 23) INTERVENORS’ MOTION TO QUALIZE PEREMPTORY STRIKES TO THE HONORABLE JUDGE OF SAID COURT NOW COMES Intervenor, NEW HAMPSHIRE INSURANCE COMPANY, and files this its Motion to Equalize Peremptory Strikes, and in support thereof would respectfully show the Court as follows I BACKGROUND This lawsuit involves an explosion which took place on an oil rig on March 3, 2006 Billy Jack McDaniel, an employee of Helmerich and Payne International Drilling Co sustained serious burn injuries as a result of this explosion. Thereafter, Billy Jack McDaniel and his family filed suit against Smith International, Inc., the manufacturer of a rotating control device and component stripper element which allegedly failed on the rig causing the explosion. The Plaintiff also sued Sonerra Resources Corp., the operator of the drilling rig. Further, Harbor Products, Inc., the molder of the stripper element, was also sued. Intervenor is the workers’ compensation carrier for Helmerich and Payne International Drilling Co. and Billy Jack McDaniel which has paid workers’ compensation benefits to and on behalf of Mr. McDaniel as required by the Texas Labor Code/Texas Workers’ Compensation Act. Intervenor filed its Plea in Intervention in this lawsuit immediately after the lawsuit was filed, and has been an active participant during the discovery process of this lawsuit. In fact, Intervenor has hired oil field experts who will testify at trial. Intervenor’s claims are not entirely aligned with the clams being asserted by Plaintiffs. It is Intervenor’s position that the explosion made the basis of this lawsuit occurred as a result of a product defect, although the Plaintiff's are also taking the position that the explosion occurred as a result of operating issues significant to Sonerra Resources Corporation. Additionally, there has been disagreement between Plaintiffs and Intervenor with respect to Billy Jack McDaniel’s medical and nursing care issues. As such, both Plaintiff's and Intervenor have different opinions regarding the liability and damages aspects of this case making them antagonistic to each other. Il. ARGUMENT & AUTHORITIES While Intervenor’s claims are derivative to the Plaintiff's claims, Intervenor and Plaintiff's are not entirely aligned in this lawsuit and antagonism does exist between Plaintiff's and Intervenor. Ina case in which there are multiple parties on the same side who are antagonistic to each other, a party may file a motion to equalize the peremptory strikes. Van Allen v. Blackledge, 35 S.W.3d 61, 64 (Tex. App.—Houston ti4® Dist.} 2000, pet denied). In deciding whether to equalize the peremptory strikes, the issue is whether the parties on one side of the case are antagonistic to each other on an issue that will be submitted to the jury. Id. The purpose of equalizing strikes based on antagonism is to ensure that no party or “side” has an unfair advantage because of its peremptory challenges. Tex.R.Civ.P. 233; Patterson Dental Co. v. Dunn, 592 914, 919 (Tex. 1979). The antagonism must be between the litigants on the same side vis-a-vis each other, not because they each have differing conflicts with the opposing party. See Patterson Dental, 592 8.W.2d at 918. Whether there is antagonism between litigants on the same side of a lawsuit is a question of law. See Garcia v. Central Power & Light Co. 704 S.W.2d 734, 736 (Tex. 1986). To determine antagonism, the Court must consider the parties’ pleadings, the pretrial discovery, all statements made during voir dire examination, and any other information brought to the court’s attention. See Scurlock Oil co. v. Smithwick, 724 S.W.2d 1, 5 (Tex. 1986); Garcia, 737; Tex.R.Civ.P. 233. When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic rights to trial by jury. See Patterson Dental at 918. U1. In this case, Smith International, Inc. and Sonerra Resources Corp. have filed cross- claims against each other and will contend that they are antagonistic to each other. It is expected that both Smith International, Inc. and Sonerra Resources Corp. will request six peremptory strikes a piece, and attempt to limit Plaintiff's and Intervenor with a total of only six peremptory strikes. Intervenor contends that such an allotment of peremptory strikes would be unfair to Intervenor and Plaintiff's considering that they are antagonistic to each 3 other. As such, Intervenor would request that the Court also allot Intervenor six peremptory strikes if in fact Smith International, Inc. and Sonerra Resources Corp. are allowed six peremptory strikes a piece at trial. WHEREFORE, PREMISES CONSIDERED, Intervenor respectfully requests that the Court grant Intervenors Motion to Equalize Peremptory Strikes. Intervenor would also pray for such other and further relief to which it may be just and entitled, at law or in equity. Respectfully submitted, ADAMI, SHUFFIELD, SCHEIHING & BURNS 9311 San Pedro Avenue, Suite 900 San Antonio, Texas 78216 Telephone: (210) 344-0500 Telecopier: (210) 344-7228 Be SNe De State Bar No. 18316390 ATTORNEYS FOR INTERVENOR, NEW HAMPSHIRE INSURANCE COMPANY CERTIFICATE OF SERVICE Thereby ae served on this the 24 counsel of record: tha it a true and correct copy of the above and foregoing document has been ry of July, 2009, certified mail, retum receipt requested, to the following Chris McDaniel CM:RRR 7008 3230 0001 3387 4371 Hortman Harlow Martindale Bassi Robinson & McDaniel, PLLC P.O. Drawer 1409 Laurel, Mississippi 39441 Attorneys for Plaintiffs Douglas Ketterman CM:RRR 7008 3230 0001 3387 4364 Ketterman Rowland & Westlund 16500 San Pedro, Suite 302 San Antonio, Texas 78232 Attorneys for Plaintiffs Jeffrey S. Davis CM:RRR 7008 3230 0001 3387 4357 Geoffrey H. Bracken. Peter Scaff Gardere Wynne Sewell LLP 1000 Louisiana, Suite 3400 Houston, Texas 77002 Attorneys for Defendant, Smith International, Inc. J. Chad Parker CM:RRR 70083230 0001 3387 4340 W. Todd Parker The Parker Firm, P.C. 3808 Old Jacksonville Road Tyler, Texas 75701 Attorneys for Defendant, Sonerra Resources Corporation Andrew McKinney CM: RRR7008 3230 0001 3387 4333 McKinney & Cooper, L.L.P. Three Riverway, Ste. 500 Houston, Texas 77056 Attorneys for Defendant, Sonerra Resources Corporation John C. Kilpatrick CM:RRR 7008 3230 0001 3387 4326 Law Offices of Kilpatrick & White 2777 Allen Parkway, Suite 622 Houston, Texas 77019 Attorneys for Kirkhill Manufacturing Company a/k/a KMC Rubber products 5 Ronald Max Raydon CM:RRR 7008 3230 0001 3387 4319 Law Offices of Ronald Max Raydon 1718 Fry Road, Suite 450 Houston, Texas 77084 Attorney for Defendant Advanced PolymerTechnologies, LLC Joe Grady Tuck CM:RRR 7008 3230 0001 3387 4302 Law Office of Joe Grady Tuck 1404 Pine Street Bastrop, Texas 78602 Attorney for Defendant Harbor Products Derek R. Van Gilder CM:RRR 7008 3230 0001 3387 4296 Law Office of Derek R. Van Gilder 916 Main Street Bastrop, Texas 78602 Attorney for Defendant Harbor Products Chris Evans CM: RRR 7008 3230 0001 3387 4289 Adams and Reese One Houston Center 1221 McKinney, Ste. 4400 Houston, Texas 77010 Attorney for Helmerich and Payne International Drilling Co. Emest P. Geiger, Jr. CM: RRR 7008 3230 0001 3387 4272 Gieger, Laborde & Laperouse, L.L.C. 1177 West Loop South, Ste. 750 Houston, Texas 77027 Forrest J. Wynn CM: RRR 7008 3230 0001 3387 4265 Beirne, Maynard & Parsons, L.L.P. 1300 Post Oak Blvd., 25" Floor Houston, Texas 77056 E. WAYNI Ss) ‘LD