Appeals

November 7, 2023 in Case Summaries

In a published opinion touching on numerous aspects of Texas products liability jurisprudence, a panel led by Judge Patrick E. Higginbotham upheld a $5.0 million jury verdict in favor of Su Min Kim, a passenger in a Honda CR-V who suffered severe brain damage when a side impact caused the driver to slip out of his seat belt and crash his head against Su Min’s.  The Fifth Circuit first rejected Honda’s Daubert challenges to the testimony of the plaintiffs’ liability experts, Mariusz Ziejewski and Neil Hannemann.  Next, the Court held that the evidence was sufficient to support the jury’s finding that either of two alternative designs—a front center airbag and a reverse geometry seatbelt—would have significantly reduced the risk of Su Min’s injury without substantially impairing the vehicle’s utility.  Finally, the Fifth Circuit upheld the district court’s refusal to submit a jury instruction on Texas’s rebuttable presumption of nonliability, holding that no federal regulation governed the product risk of a far-side impact injury in a side-impact collision.  Su Min Kim and Ji Hun Kim v. American Honda Motor Co., Inc., 86 F.4th 150 (5th Cir. 2023).

Courts:  Federal Courts of Appeals

Subject Matter:  Products Liability & Personal Injury; Procedural & Evidentiary Issues

October 31, 2023 in Case Summaries

Levinger PC represented John Kawcak, a former executive of Antero Resources, in an effort to overturn a judgment of over $11.5 million arising from a claim that he had steered drillout service contracts to companies owned by a friend in breach of his fiduciary duty to his employer.  Although the Fifth Circuit upheld the jury’s finding of damages based on alleged overcharges by the drillout companies, it held in a published opinion that the district court erred by not allowing post-verdict discovery of the employer’s settlement with the drillout companies.  The Court remanded the case for consideration of whether Kawcak should be allowed discovery of, and a credit for, the amount of the third-party settlement.  Antero Resources Corp. v. Kawcak, 85 F.4th 741 (5th Cir. 2023).

Courts:  Federal Courts of Appeals

Subject Matter:  Business Litigation, Procedural & Evidentiary Issues

March 2, 2022 in Case Summaries

In a long-running and procedurally-complex child custody dispute between two physicians, Levinger PC successfully represented the father in persuading the Dallas Court of Appeals to uphold the trial court’s order refusing to modify the parent-child relationship.  The Court first rejected the mother’s contention that the parties had not agreed to arbitrate their dispute, holding that a 2010 order included a consensual arbitration clause and a 2012 order did not revoke that agreement.  The Court also rejected the mother’s procedural challenges to the award, including her attack on the arbitrator’s decision concerning her effort to present testimony from out-of-state witnesses.  In the Interest of K.B., No. 05-20-00123-CV, 2022 WL 611208 (Tex. App.—Dallas Mar. 2, 2022, no pet.) (mem. op.).

Courts:  Texas Intermediate Courts

Subject Matter:  Procedural & Evidentiary Issues

May 3, 2022 in Case Summaries

Jeff Levinger teamed with Locke Lord partners David Swanson  and Tom Loose to obtain the reversal of a judgment of over $18 million in a long-running partnership dispute between their client, Craig Power, and his brother and business partner, Braden Power.  In an opinion authored by Justice Erin Nowell and joined by Justices Ken Molberg and Bonnie Goldstein, the Dallas Court of Appeals held that the trial court had abused its discretion in admitting evidence of document spoliation and instructing the jury on spoliation without the requisite findings of duty and intent.  And because the harm from the erroneous admission of the evidence and the spoliation instruction was “substantial,” the Court remanded the case for a new trial on all issues.  After Levinger filed a petition for review in the Texas Supreme Court challenging the court of appeals’ failure to address several rendition issues, the case settled on terms favorable to Craig Power.  Power v. Power, No. 05-19-01557-CV, 2022 WL 1314944 (Tex. App.—Dallas May 3, 2022, pet. dism’d by agr.) (mem. op).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Business Litigation; Procedural and Evidentiary Issues

November 21, 2021 in Case Summaries

Sarah Milburn obtained a $25 million judgment following a Dallas County jury’s verdict that a defective seat belt system in a Honda Odyssey in which she was riding as an Uber passenger rendered her a quadriplegic in a side-impact collision.  Working with trial lawyers Charla Aldous, Jim Mitchell, and Brent Walker, Jeff Levinger authored the appellate briefing and persuaded the Dallas Court of Appeals to affirm the judgment in.  Reviewing an extensive record from the three-week trial, the court of appeals held that: (1) sufficient evidence supported the jury’s finding that Sarah had rebutted the statutory presumption of non-liability in Tex. Civ. Prac. & Rem. Code § 82.008; (2) Sarah’s human factors expert was qualified and provided sufficient evidence to support the jury’s finding of a design defect; (3) the evidence was sufficient to support the jury’s findings that a safer alternative design for the seat belt system existed; (4) Honda’s negligence in designing the seat belt system was the proximate cause of Sarah’s injuries; and (5) the trial court correctly refused to submit a proportionate responsibility question that included Uber.  The Texas Supreme Court has granted review and heard oral argument in September 2023.  American Honda Motor Co., Inc. v. Milburn, 668 S.W.3d 6 (Tex. App.—Dallas 2021, pet. granted).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Products Liability & Personal Injury