San Antonio Injury Attorney Blog

Texas Civil Practice and Remedies Code (CPRC) 82.008 creates a rebuttable presumption of no liability in certain Texas product liability personal injury cases. However, section 82.008(d) makes exceptions for certain manufacturing flaws o defects from the rebuttable presumption.

If the seller has properly demonstrated the presumption, then it is up to the Texas personal injury lawyer to demonstrate that the standard / regulation was not strong enough to safeguard the public from unreasonable risk of injury or damage. The other option is to prove that the manufacturer, either before or after he commenced marketing the product, kept information or misrepresented information to the federal government. Such withholding or misrepresentation of information would have altered the federal government's creation of a proper safety standard.

In almost every Texas products liability case, the defense attorney premises his defense on his client's compliance with government standards. Counsel will claim that ultimately the government gave the seller a de facto seal of approval. In response, the Texas personal injury lawyer will counter that the federal government’s standard has always been a minimum floor and is often outdated and incapable of creating safety.

Another tactic is to attack how the manufacturer communicated with the government about the adequacy of a safety regulation. Such a tactic will open up a tremendous amount of discovery about not only the product itself, but exactly what the manufacturer told the government about how to construct its standard. It is a somewhat confusing wording on the legislation, because it almost puts the manufacturer in a type of watchdog role on the government’s standards.

Under the bill, there is no exception to the presumption of no liability if the manufacturer misleads or omits key information about its products under the applicable regulations. This key provision allows plaintiff's counsel to obtain all communication between the manufacturer and government as to all information the manufacturer gave the government as well as any communication related to the government's regulation in general. You may recall that during the Vioxx litigation, there were allegations that Merck withheld key research data from the government that reflected an increased incident of serious cardiac injury.

CPRC 82.008(c) also creates a presumption of no liability if the formulation, labeling, and design of the products had to acquire a pre-market licensing or approval from the federal government. Provided the federal government gave pre-market licensing / approval of the product's design, risks, and benefits, then there would be a presumption of no liability.

A Texas serious personal injury attorney would attack this presumption by demonstrating that the standards of pre-market licensing could not have protected society from unreasonable risk of serious personal injury. Another option is to show the manufacturer withheld information from the government that was material to the product's performance and caused the plaintiff's injury. Withholding information must be relevant to the product's performance and causally related so that you may be successful in a Texas product liability lawsuit.

In a Texas pharmaceutical injury or medical device lawsuit, where the lawsuit centers on a failure to warn, TX Civil Practice and Remedies Code (CPRC) creates a presumption of no liability if the warnings associated with the product were not approved by the Food and Drug Administration (FDA) .

There are several ways a Texas medical device injury lawyer can overcome the presumption of no liability, First, he can show that the manufacturer deceived the FDA by omitting or distorting required information needed for pre-market government endorsement and licensing. Any deception in the withholding or distortion of information must be material to the Texas serious personal injury claim and the element of causation is present.

Another way to overcome the presumption of no liability is to demonstrate continued sale of the drug or medical device after the FDA mandated market removal or no longer endorsed the product.

Another way to overcome the presumption of no liability is to demonstrate "off label" use. An off label use occurs when doctors and drug companies begin using a pharmaceutical to treat a problem for which it did not originally receive government approval. If in fact, there was off label use, the presumption of no liability disappears. There are elements of proof associated with off label use. The injured plaintiff must prove that the healthcare provider and / or drug company promoted, advertised, or prescribed the off label use; the injured party used the product as it had been recommended, promoted, advertised, or prescribed; and there was a causal connection between the injury and the recommendations, promotion, advertisement, or prescription of the product.

Another way to overcome the presumption of no liability given compliance with the FDA requirements is that the defendant, either before or after pre-market government approval / licensing, bribed a public official in violation of 18 U.S.C. Section 201 and such conduct precipitated FDA warnings of the product to be substandard.

There has been some controversy over whether a State District Court judge can determine if material information was withheld from the FDA so that plaintiffs can overcome the presumption of no liability. One district court judge granted summary judgment in a Texas Vioxx case on the basis that the FDA is the only entity that can make a determination about whether a manufacturer was deceptive in the warnings information it provided. There have been several follow up cases which have criticized the decision.

In San Antonio and greater Texas, under the Texas Business and Commerce Code, the courts will not enforce a contract for the sale of real estate unless such an agreement is in writing and signed by the parties to the agreement or their agents. Tex. Bus.& Com. Code § 26.01. Such a requirement is an essential legal concept known as the Statute of Frauds, which requires certain agreements such as those for the sale of land to be in writing.

In order for the courts to enforce specific provisions of a real estate contract for sale, the written agreement must be such that the terms are expressed with a reasonable certainty. Also, the courts will require that the party demanding the contract be enforced show that it in fact has complied with all his or her obligations under the contract.

Sometimes, a party will claim fraud on an oral contract for sale of real estate. The courts however reject this legal theory on the basis that the alleged contract was inherently unenforceable under the statute of frauds.

Another legal theory a plaintiff may use is the theory of quantum meruit. The elements of an action for quantum meruit require that the injured party provided valuable services or materials for the defendant. The defendant must have accepted such services and materials. The most important final element is that the plaintiff reasonably notified the defendant that the plaintiff expected compensation for such services or materials. For example, a claim for quantum meruit will fail where the defendant did not have reasonable notice that the plaintiff expected payment where the plaintiff failed to submit a bill years after providing service and not until the suit was filed.

The statute of limitations for an action for quantum meruit is four (4) years. The time when the clock starts ticking for bringing suit hinges on whether the work performed had a definite stopping point, or whether the work was an ongoing arrangement with an undefined stopping point. For ongoing work, the statute of limitations begins when the services were performed (daily, weekly, or monthly).

For San Antonio real estate litigation and quantum meruit claims, you should contact a San Antonio business litigation attorney as soon as possible.

In our last blog entry on Texas police chase personal injury accidents , we focused on some of the factors that would point to a finding of negligence on the part of police officers who did not abandon the chase of a suspect in consideration of public safety.

There have been several cases throughout the country that have given some clues as to how the courts interpret police behavior, especially when it is the suspect and not the police themselves who directly causes a collision. In a case in Sacramento CA, the court found that there was some evidence to suggest that the officers had created a dangerous situation in their pursuit of the suspect. For example, the police failed to turn their red lights on and the injured plaintiff indicated that he never heard any police sirens despite the fact that he had his windows rolled down and the radio was off.

In an action against the city of Pasadena CA, the court ruled that under the circumstances, there was enough evidence to bring a cause of action for wrongful death against the city. In that case, the officers pursued a suspect solely for a traffic infraction on city streets in excess of 100 miles per hour.

In another case against the city in Compton CA, officers stopped a motorist without identifying themselves as law enforcement and began brandishing guns, causing the motorist to flee in panic and collide with the plaintiff's vehicle.

In a Connecticut case, contrary to their pursuit policy, the police chased a suspect at high speeds the wrong way down a one-way street causing the pursued vehicle to strike the plaintiff's vehicle.

In some cases, the question becomes whether the driver of the pursued car was driving in a reckless manner and endangering the public before the police began to chase him. In such a situation, the failure of the police to engage in a chase would have presented a substantial threat to public safety. The other question is whether the pursuit in itself was exceptionally hazardous under the circumstances. A chase in a rural area with no businesses or residences where the police are traveling only 5-15 miles per hour over the speed limit would not fit under the category of exceptionally hazardous. In a case against the City of New Orleans, the court ruled that driving over the speed limit in the pursuit of a suspect was not considered negligence per se (i.e. automatically negligence).

However, in a case against the city of West MS, the court ruled that officers chasing a suspect through residential neighborhoods at speeds in excess of 80 to 100 miles per hour and where a plaintiff's residence was damaged by the suspect's out of control vehicle was enough to state a cause of action against the city.

In an upstate NY case, the key question for the court was whether officers acted in reckless disregard for the safety of others. Some key questions are how far police officers were from the fleeing suspects; the conditions of traffic (heavy or light); whether police tried to overtake the suspect's vehicle or force it from the roadway; and how close the police were from the collision and the speed of the officers at the time.

Another key question is whether the city / municipality had properly trained its police force as to high-speed police pursuit and the alternative use of warrant arrest procedure.

If you or a family member have suffered serious personal injury or Texas wrongful death from a San Antonio police chase , immediately contact a San Antonio personal injury lawyer .