Preview
I
DALLAS COUNTY
2/19/2018 2:45 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-04449
PAMELA EVANS AND DOMINIC JONES, IN THE DISTRICT COURT OF
Plaintiffs,
Vv. DALLAS COUNTY, TEXAS
PRIMORIS SERVICES CORPORATION,
JAMES CONSTRUCTION GROUP, LLC,
UNITED RENTALS NORTH AMERICA,
INC., & HNTB CORPORATION,
Defendanis. 191st JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANT JAMES CONSTRUCTION GROUP, LLC’S
TRIAL BRIEF ON VICE-PRINCIPAL AND GROSS NEGLIGENCE
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs Pamela Evans and Dominic Jones file their Trial Brief in Response to
Defendant James Construction Group, LLC’s Trial Brief on Vice-Principal and Gross
Negligence and would respectfully show the Court the following.
I
ARGUMENT AND AUTHORITIES
Defendant begins its argument with a string of misstatements of law. It is not true, as
Defendant claims, that a corporation can act only through its agents, such that an individual must
be named in the jury question for gross negligence. Nor is it true that a plaintiff must prove that a
vice principal was grossly negligent or approved of the negligent act.
Most fundamentally, the authorities cited by Defendant do not support Defendant's
position because Plaintiffs did not seek to “impute” the grossly negligent conduct of any
particular employee to Defendant. Instead, Plaintiffs based their punitive damages case on
Defendant's grossly negligent acts and policies, a theory embraced by the Texas Supreme Court
two decades ago in Mobil Oil Corp. v. Ellender:
Evidence that Mobil had a policy of monitoring and protecting its own employees
but chose not to do the same for contract workers provides additional facts and
circumstances for the jury to infer that Mobil knew the risks of benzene exposure
yet proceeded with conscious indifference toward the rights, safety or welfare of
contract workers vis-a-vis that risk.
968 S.W.2d 917, 925 (Tex. 1998).
The Texas Supreme Court has continued to recognize that “[clorporate safety policies, or
the lack of them, can serve as the basis for a gross negligence finding.” Louisiana-Pacific Corp.
vy. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also Brown & Root, Inc. v. Shelton, 446 S.W.
3d 386, 394-5 (Tex. App.— Tyler 2003, no pet. hist.); Seminole Pipeline v. Broadleaf Partners,
Inc., 979 S.W.2d 730, 749-750 (Tex. App.— Houston [14th Dist.] 1998, no pet.). In 2008, for
example, the Texas Supreme Court upheld a reduced punitive damages award in Columbia
Medical Center of Las Colinas, Inc. v. Hogue after holding that evidence of Columbia Medical's
corporate policies was sufficient to support that award:
[T]here is sufficient evidence to support the jury's conclusion that Columbia
Medical acted with conscious indifference to an extreme risk of serious injury
when it 1) elected to outsource echo services without a guaranteed response time
while providing emergency services; and 2) failed to communicate this limitation
to its medical staff so they could consider other treatment options to treat critical
care patients, and 3) delayed obtaining the echo in spite of the serious risk to
Hogue's health.
271 S.W.3d 238, 253, 245 (Tex. 2008).
Since proof of grossly negligent corporate policies is sufficient to support a punitive
damages award, claimants are not required to prove the factors necessary to impute an
employee's conduct to the corporation - that is, that the grossly negligent conduct was performed
by a vice-principal of the company or was ratified by the corporation or a vice-principal. Texas
Patten Jury Charges 10.14(C) and 85.2(C) recognize this rule; each contains an identical
comment exempting cases like this one from the requirement of proving that the corporation or a
vice principal ratified or committed the acts in question:
PJC 85.2 [or 10.14] may be used if the plaintiff seeks to impute the gross
negligence or malice of a defendant employee to his corporate employer....PJC
10.14/85.2 is not designed for use when the plaintiff seeks to establish corporate
liability for exemplary damages based on corporate policies.
Comment, PJC 10.14C; Comment, PJC 85.2C (emphasis added).
Defendant urges this Court to adopt PJC 10.14C, which by its plain terms applies only
when a plaintiff seeks to hold a defendant corporation grossly negligent through the acts of its
employee. A companion Pattern Jury Charge, 85.2C, governs Imputing Gross Negligence to a
Corporation for actions filed on or after September 1, 2003. Defendant does not direct this Court
to that pattern charge, because it is fatal to Defendant’ s argument. Specifically, the first comment
to PJC 85.2C, which works hand-in-hand with Defendant's proposed charge, PJC 10.14C, states:
When to use. PJC 85.2 may be used if a plaintiff seeks to impute the gross
negligence or malice of a defendant employee to his corporate employer. The
grounds listed in this instruction are alternatives, and any of the listed grounds
that are not applicable to or supported by sufficient evidence in the case should be
omitted. Regarding broadform submission, see Introduction 4(a). If imputation is
not required, see PJC 85.1 and substitute ABC Corporation for Don Davis.
PJC 85.2C (emphasis added).
Plaintiffs, of course, are the master of their lawsuit and empowered to sue who has
wronged them and for the reasons they have been wronged. Here, Plaintiffs sued James
Construction for its grossly negligent acts as a corporation. Thus, the proper charge, substituting
“ABC Corporation” for “Don Davis” as instructed by the first comment to PJC 85.2C, reads as
follows:
PJC 85.1C Standard for Recovery of Exemplary Damages — Gross
Negligence— Actions Filed on or after September 1, 2003
Answer the following question regarding ABC Corporation only if you
unanimously answered “Yes” to Question —--- [applicable liability question]
regarding ABC Corporation. Otherwise, do not answer the following question
regarding ABC Corporation.
To answer “Yes” to [any part of] the following question, your answer
must be unanimous. Y ou may answer “No” to [any part of] the following question
only upon a vote of ten or more jurors. Otherwise, you must not answer [that part
of] the following question.
QUESTION —-----
Do you find by clear and convincing evidence that the harm to Paul Payne
resulted from gross negligence?
“Clear and convincing evidence” means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegations sought to
be established.
“Gross negligence” means an act or omission by ABC Corporation,
1. which when viewed objectively from the standpoint of ABC
Corporation at the time of its occurrence involves an extreme degree of risk,
considering the probability and magnitude of the potential harm to others; and
2. of which ABC Corporation has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the rights,
safety, or welfare of others.
Answer “Y es” or “No.”
Answer: --- a
Further, it bears noting that even if Plaintiffs were required to prove that the conduct
relied upon to support the punitive damages finding in their favor was committed by a vice-
principal, or was ratified by a vice-principal or the corporation, the corporate policy evidence can
suffice:
Whether the corporation's acts can be attributed to the corporation itself... is
determined by reasonable inferences the factfinder can draw from what the
corporation did or failed to do...
[Defendant's] program recognized that long-term benzene inhalation is the most
likely source of benzene intoxication and that continuous exposure to benzene
affects the formation of red-blood cells in bone marrow. This circumstantial
evidence is legally sufficient evidence that Mobil vice principals knew that not
providing protective gear, not monitoring and not warming workers about benzene
exposure was an extreme risk to contract workers...
Ellender, 968 S.W.2d at 922, 924-5 (emphasis added).
Based on the facts set forth to the jury, Defendant engaged in acts and omissions that
created an extreme risk of harm to those, like Mr. Davis, who encountered its construction sites.
Defendant's acts and omissions, and responses to its knowledge of the risks, subjected it to
claims of gross negligence. Further, these were not the acts of isolated employees, but rather
policy decisions made at the highest levels of a corporation.
These were not isolated employees or even managers. The rank and file cannot force
Defendant to deviate from a TxDOT-approved construction project to proceed out-of-sequence
on a major highway project with potentially fatal consequences to the lay public using one of the
nation’s busiest Interstates—these are policy decisions made at the highest levels of a
corporation. These are Defendant’s policy decisions, made by high-level officials with full
knowledge of the danger that this gross deviation presents. Under Texas law, such grossly
negligent policies can subject a corporation to liability for punitive damages.
Il.
PRAYER
For the foregoing reasons, Plaintiffs respectfully pray that this Court reject Defendant's
proposed jury charge and utilize the charge proposed by Plaintiffs.
Respectfully submitted,
BARON & Bupp, P.C.
By: /s/ Bryan A. Green
Bryan A. Green
Texas Bar No. 24062496
bgreen@ baronbudd.com
Kathryn A. Pryor
Texas Bar No.
kpryor@ baronbudd.com
3102 Oak Lawn Avenue
Suite 1100
Dallas, TX 75219
214-521-3605
214-520-1181 FAX
Attorneys for Plaintiffs Pamela Evans and
Dominic J ones
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served
on counsel of record, pursuant to the Texas Rules of Civil Procedure, on this 19th day of
February, 2018.
Via Electronic Filing Via Electronic Filing
Wayne B. Mason Keith R. Taunton
wayne.mason@ dbr.com ktaunton@ tsslawfirm.com
David C. Kent Norm Snyder
david.kent@ dbr.com nsnyder@ tsslawfirm.com
Ryan C. Brown Taunton, Snyder& Slade, P.C.
tyan.brown@ dbr.com 580 Westlake Park Blvd., Suite 1120
Drinker Biddle & Reath LLP Houston, Texas 77079
1717 Main Street, Suite 5400
Dallas, Texas 75201 Counsel for Defendants J ames Construction
Group, LLC and Primoris Services
Counsel for Defendant HNTB Corporation Corporation
Via Electronic Filing Via Electronic Fil
Andrew M. Johnson Patrick F. Madden
amjohnson@ polsinelli.com pmadden@ macdonalddevin.com
Polsinelli, P.C. Jacob M. Borchers
2501 N. Harwood Street, Suite 1900 jborchers@ macdonalddevin.com
Dallas, TX 75201 MacDonald Devin, P.C.
3800 Renaissance Tower
Counsel for Defendant United Rentals North 1201 Elm Street
America, Inc. Dallas, Texas 75270
Counsel for Defendants Einer Julian Lares
d/b/a Lares Trucking and Valentin Martinez
Via Electronic Filing Via Electronic Filing
Justin Hancock Mark S. Scudder
justin@ danglawgroup.com mark.scudder@ strasburger.com
Dang Law Group Annie J. Jacobs
11442-A NIH 35 annie.jacobs@ strasburger.com
Austin, Texas 78753 Strasburger & Price LLP
901 Main Street, Suite 6000
Attorney for Intervenor Chuong Nguyen Dallas, TX 75202
Attorney for Intervenor C.R. England, Inc.
Via Electronic Filing Via Electronic Filing
R. William Wood Larry Henke
bill@ wtwlawfirm.com larry@ brownfoxlaw.com
Grace Weatherly Brown Fox, PLLC
grace@ wtwlawfirm.com 750 N. St. Paul Ave., Suite 1320
Wood Weatherly Dallas, TX 75201
3541 Teasley Lane, Suite 100
Denton, Texas 76210 Via Electronic Filing
Christopher Kratovil
Via Electronic Filing ckratovil@ dykema.com
Ricky Perritt Gavin Hill
rbperritt@ aol.com ghill@ dykema.com
218 North Elm John C. Sokatch
Denton, Texas 76201 jsokatch@ dykema.com
Dykema Cox Smith
Counsel for Intervenor Roberto Zambrano Comerica Bank Tower
1717 Main Street, Suite 4200
Dallas, TX 75201
Counsel for Defendant U.S. Logistics, LLC
Via Electronic Filing Via Electronic Filing
Bryan D. Pope Sean Russell
bpope@ thecochranfirmdallas.com sean.russell@ libertymutual.com
The Cochran Firm Law Offices of Kilpatrick, White & Deas
3400 Carlisle St., Suite 550 9601 McAllister Freeway, Suite 220
Dallas, TX 75204 San Antonio, Texas 78216
Attorney for Plaintiff Patrice Anderson as Attorney for Intervenor Liberty Mutual
Next Friend of Paris Davis Insurance Corporation
Via Electronic Filing
Michael Ratliff
michael. ratliff@ oag.texas.gov
Office of the Attorney General
PO Box 12548
Austin, Texas 78711-2548
Attorney for Plaintiff Patrice Anderson as Next
Friend of Paris Davis
/s/ Bryan A. Green
Bryan A. Green
Preview
I DALLAS COUNTY 2/19/2018 2:45 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-04449 PAMELA EVANS AND DOMINIC JONES, IN THE DISTRICT COURT OF Plaintiffs, Vv. DALLAS COUNTY, TEXAS PRIMORIS SERVICES CORPORATION, JAMES CONSTRUCTION GROUP, LLC, UNITED RENTALS NORTH AMERICA, INC., & HNTB CORPORATION, Defendanis. 191st JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANT JAMES CONSTRUCTION GROUP, LLC’S TRIAL BRIEF ON VICE-PRINCIPAL AND GROSS NEGLIGENCE TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs Pamela Evans and Dominic Jones file their Trial Brief in Response to Defendant James Construction Group, LLC’s Trial Brief on Vice-Principal and Gross Negligence and would respectfully show the Court the following. I ARGUMENT AND AUTHORITIES Defendant begins its argument with a string of misstatements of law. It is not true, as Defendant claims, that a corporation can act only through its agents, such that an individual must be named in the jury question for gross negligence. Nor is it true that a plaintiff must prove that a vice principal was grossly negligent or approved of the negligent act. Most fundamentally, the authorities cited by Defendant do not support Defendant's position because Plaintiffs did not seek to “impute” the grossly negligent conduct of any particular employee to Defendant. Instead, Plaintiffs based their punitive damages case on Defendant's grossly negligent acts and policies, a theory embraced by the Texas Supreme Court two decades ago in Mobil Oil Corp. v. Ellender: Evidence that Mobil had a policy of monitoring and protecting its own employees but chose not to do the same for contract workers provides additional facts and circumstances for the jury to infer that Mobil knew the risks of benzene exposure yet proceeded with conscious indifference toward the rights, safety or welfare of contract workers vis-a-vis that risk. 968 S.W.2d 917, 925 (Tex. 1998). The Texas Supreme Court has continued to recognize that “[clorporate safety policies, or the lack of them, can serve as the basis for a gross negligence finding.” Louisiana-Pacific Corp. vy. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also Brown & Root, Inc. v. Shelton, 446 S.W. 3d 386, 394-5 (Tex. App.— Tyler 2003, no pet. hist.); Seminole Pipeline v. Broadleaf Partners, Inc., 979 S.W.2d 730, 749-750 (Tex. App.— Houston [14th Dist.] 1998, no pet.). In 2008, for example, the Texas Supreme Court upheld a reduced punitive damages award in Columbia Medical Center of Las Colinas, Inc. v. Hogue after holding that evidence of Columbia Medical's corporate policies was sufficient to support that award: [T]here is sufficient evidence to support the jury's conclusion that Columbia Medical acted with conscious indifference to an extreme risk of serious injury when it 1) elected to outsource echo services without a guaranteed response time while providing emergency services; and 2) failed to communicate this limitation to its medical staff so they could consider other treatment options to treat critical care patients, and 3) delayed obtaining the echo in spite of the serious risk to Hogue's health. 271 S.W.3d 238, 253, 245 (Tex. 2008). Since proof of grossly negligent corporate policies is sufficient to support a punitive damages award, claimants are not required to prove the factors necessary to impute an employee's conduct to the corporation - that is, that the grossly negligent conduct was performed by a vice-principal of the company or was ratified by the corporation or a vice-principal. Texas Patten Jury Charges 10.14(C) and 85.2(C) recognize this rule; each contains an identical comment exempting cases like this one from the requirement of proving that the corporation or a vice principal ratified or committed the acts in question: PJC 85.2 [or 10.14] may be used if the plaintiff seeks to impute the gross negligence or malice of a defendant employee to his corporate employer....PJC 10.14/85.2 is not designed for use when the plaintiff seeks to establish corporate liability for exemplary damages based on corporate policies. Comment, PJC 10.14C; Comment, PJC 85.2C (emphasis added). Defendant urges this Court to adopt PJC 10.14C, which by its plain terms applies only when a plaintiff seeks to hold a defendant corporation grossly negligent through the acts of its employee. A companion Pattern Jury Charge, 85.2C, governs Imputing Gross Negligence to a Corporation for actions filed on or after September 1, 2003. Defendant does not direct this Court to that pattern charge, because it is fatal to Defendant’ s argument. Specifically, the first comment to PJC 85.2C, which works hand-in-hand with Defendant's proposed charge, PJC 10.14C, states: When to use. PJC 85.2 may be used if a plaintiff seeks to impute the gross negligence or malice of a defendant employee to his corporate employer. The grounds listed in this instruction are alternatives, and any of the listed grounds that are not applicable to or supported by sufficient evidence in the case should be omitted. Regarding broadform submission, see Introduction 4(a). If imputation is not required, see PJC 85.1 and substitute ABC Corporation for Don Davis. PJC 85.2C (emphasis added). Plaintiffs, of course, are the master of their lawsuit and empowered to sue who has wronged them and for the reasons they have been wronged. Here, Plaintiffs sued James Construction for its grossly negligent acts as a corporation. Thus, the proper charge, substituting “ABC Corporation” for “Don Davis” as instructed by the first comment to PJC 85.2C, reads as follows: PJC 85.1C Standard for Recovery of Exemplary Damages — Gross Negligence— Actions Filed on or after September 1, 2003 Answer the following question regarding ABC Corporation only if you unanimously answered “Yes” to Question —--- [applicable liability question] regarding ABC Corporation. Otherwise, do not answer the following question regarding ABC Corporation. To answer “Yes” to [any part of] the following question, your answer must be unanimous. Y ou may answer “No” to [any part of] the following question only upon a vote of ten or more jurors. Otherwise, you must not answer [that part of] the following question. QUESTION —----- Do you find by clear and convincing evidence that the harm to Paul Payne resulted from gross negligence? “Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established. “Gross negligence” means an act or omission by ABC Corporation, 1. which when viewed objectively from the standpoint of ABC Corporation at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and 2. of which ABC Corporation has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. Answer “Y es” or “No.” Answer: --- a Further, it bears noting that even if Plaintiffs were required to prove that the conduct relied upon to support the punitive damages finding in their favor was committed by a vice- principal, or was ratified by a vice-principal or the corporation, the corporate policy evidence can suffice: Whether the corporation's acts can be attributed to the corporation itself... is determined by reasonable inferences the factfinder can draw from what the corporation did or failed to do... [Defendant's] program recognized that long-term benzene inhalation is the most likely source of benzene intoxication and that continuous exposure to benzene affects the formation of red-blood cells in bone marrow. This circumstantial evidence is legally sufficient evidence that Mobil vice principals knew that not providing protective gear, not monitoring and not warming workers about benzene exposure was an extreme risk to contract workers... Ellender, 968 S.W.2d at 922, 924-5 (emphasis added). Based on the facts set forth to the jury, Defendant engaged in acts and omissions that created an extreme risk of harm to those, like Mr. Davis, who encountered its construction sites. Defendant's acts and omissions, and responses to its knowledge of the risks, subjected it to claims of gross negligence. Further, these were not the acts of isolated employees, but rather policy decisions made at the highest levels of a corporation. These were not isolated employees or even managers. The rank and file cannot force Defendant to deviate from a TxDOT-approved construction project to proceed out-of-sequence on a major highway project with potentially fatal consequences to the lay public using one of the nation’s busiest Interstates—these are policy decisions made at the highest levels of a corporation. These are Defendant’s policy decisions, made by high-level officials with full knowledge of the danger that this gross deviation presents. Under Texas law, such grossly negligent policies can subject a corporation to liability for punitive damages. Il. PRAYER For the foregoing reasons, Plaintiffs respectfully pray that this Court reject Defendant's proposed jury charge and utilize the charge proposed by Plaintiffs. Respectfully submitted, BARON & Bupp, P.C. By: /s/ Bryan A. Green Bryan A. Green Texas Bar No. 24062496 bgreen@ baronbudd.com Kathryn A. Pryor Texas Bar No. kpryor@ baronbudd.com 3102 Oak Lawn Avenue Suite 1100 Dallas, TX 75219 214-521-3605 214-520-1181 FAX Attorneys for Plaintiffs Pamela Evans and Dominic J ones CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served on counsel of record, pursuant to the Texas Rules of Civil Procedure, on this 19th day of February, 2018. Via Electronic Filing Via Electronic Filing Wayne B. Mason Keith R. Taunton wayne.mason@ dbr.com ktaunton@ tsslawfirm.com David C. Kent Norm Snyder david.kent@ dbr.com nsnyder@ tsslawfirm.com Ryan C. Brown Taunton, Snyder& Slade, P.C. tyan.brown@ dbr.com 580 Westlake Park Blvd., Suite 1120 Drinker Biddle & Reath LLP Houston, Texas 77079 1717 Main Street, Suite 5400 Dallas, Texas 75201 Counsel for Defendants J ames Construction Group, LLC and Primoris Services Counsel for Defendant HNTB Corporation Corporation Via Electronic Filing Via Electronic Fil Andrew M. Johnson Patrick F. Madden amjohnson@ polsinelli.com pmadden@ macdonalddevin.com Polsinelli, P.C. Jacob M. Borchers 2501 N. Harwood Street, Suite 1900 jborchers@ macdonalddevin.com Dallas, TX 75201 MacDonald Devin, P.C. 3800 Renaissance Tower Counsel for Defendant United Rentals North 1201 Elm Street America, Inc. Dallas, Texas 75270 Counsel for Defendants Einer Julian Lares d/b/a Lares Trucking and Valentin Martinez Via Electronic Filing Via Electronic Filing Justin Hancock Mark S. Scudder justin@ danglawgroup.com mark.scudder@ strasburger.com Dang Law Group Annie J. Jacobs 11442-A NIH 35 annie.jacobs@ strasburger.com Austin, Texas 78753 Strasburger & Price LLP 901 Main Street, Suite 6000 Attorney for Intervenor Chuong Nguyen Dallas, TX 75202 Attorney for Intervenor C.R. England, Inc. Via Electronic Filing Via Electronic Filing R. William Wood Larry Henke bill@ wtwlawfirm.com larry@ brownfoxlaw.com Grace Weatherly Brown Fox, PLLC grace@ wtwlawfirm.com 750 N. St. Paul Ave., Suite 1320 Wood Weatherly Dallas, TX 75201 3541 Teasley Lane, Suite 100 Denton, Texas 76210 Via Electronic Filing Christopher Kratovil Via Electronic Filing ckratovil@ dykema.com Ricky Perritt Gavin Hill rbperritt@ aol.com ghill@ dykema.com 218 North Elm John C. Sokatch Denton, Texas 76201 jsokatch@ dykema.com Dykema Cox Smith Counsel for Intervenor Roberto Zambrano Comerica Bank Tower 1717 Main Street, Suite 4200 Dallas, TX 75201 Counsel for Defendant U.S. Logistics, LLC Via Electronic Filing Via Electronic Filing Bryan D. Pope Sean Russell bpope@ thecochranfirmdallas.com sean.russell@ libertymutual.com The Cochran Firm Law Offices of Kilpatrick, White & Deas 3400 Carlisle St., Suite 550 9601 McAllister Freeway, Suite 220 Dallas, TX 75204 San Antonio, Texas 78216 Attorney for Plaintiff Patrice Anderson as Attorney for Intervenor Liberty Mutual Next Friend of Paris Davis Insurance Corporation Via Electronic Filing Michael Ratliff michael. ratliff@ oag.texas.gov Office of the Attorney General PO Box 12548 Austin, Texas 78711-2548 Attorney for Plaintiff Patrice Anderson as Next Friend of Paris Davis /s/ Bryan A. Green Bryan A. Green