San Antonio Injury Attorney Blog

A life-long printer worker. A paint factory worker. An aviation gas refueler. What do these occupations have in common ? These are occupations in which workers are exposed to carcinogenic chemicals on a daily basis. They often work for companies who do not value personal safety of their workers. Companies express their lack of concern by refusing to invest in safety programs and issuing Personal Protective Equipment (PPE) such as masks and gloves to their workers.

Many of the solvents that such workers use on a daily basis contain carcinogens. These chemicals such as benzene, toluene, xylene, and naptha cause cancers that do no manifest themselves until 20-30 years after exposure. These types of illnesses are known as "latency injuries". To illustrate, chronic myelogenous leukemia (CML) is associated with an exposure to benzene that can occur 25 years prior to the first manifestations of the symptoms.

Often times, a Material Safety Data Sheet (MSDS) accompanies these chemicals. However, industrial companies are lax in educating their workers about the risks of such chemicals from the information on the MSDS. The MSDSs contain explicit warnings on the carcinogenic effects as well as pulmonary and respiratory dangers. There are several international organizations which issue warnings on carcinogenic effects, including the National Toxicology Program (NTP), IARC (International Agency for Research on Cancer), OSHA (Occupational Safety Health Administration), and ACGIH (American Conference Of Governmental Industrial Hygienists) . The MSDS will often cite these organizations when discussing the classification of the particular components of a product.

During a Texas toxic tort suit , a product liability attorney will examine the type of illness, and look to establish causation between exposure to particular chemicals over time and the disease in question. Usually, workers compensation laws would usually bar a plaintiff from suing his employer for injuries on account of hazardous chemicals in the workplace, unless the employer's negligence was so gross and brazen as to overcome the presumption of no negligence. The injured worker can however go after the manufacturers of industrial chemicals on a falure to warn theory, especially if the MSDSs did not adequaely warn of particualr dangers associated with exposure.

Other inquiries by a San Antonio toxic injury lawyer will focus on the adequacy of personal protective equipment provided to the worker. The paint worker who suffers cancer many years after leaving the factory is often the worker who was provided a cheap paper mask rather than a true respirator with filters. The Texas toxic tort investigation will also focus on the core principles of Time, Duration, and Exposure amount. When was the worker exposed ? How long was he exposed to the material in question ? How much contact did he have with the chemical ? Chemical exposure has many avenues including the breathing of toxic vapors, skin contact, and rarely ingestion. Finally, was the chemical in question capable of causing the disease in question ?

If you suspect that industrial exposure has caused a terminal illness in you, a friend , or a family member, you must consult with a Texas toxic injury lawyer without delay as statutes of limitation are strictly upheld.

The Texas Family Code recognizes two types of marriages : ceremonial and common law. Although Texas recognizes common law or informal marriage, there is a great deal of confusion about what constitutes a Texas common law marriage . The elements of an informal / common law marriage are that a man and woman (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) in Texas represented to others that they were married. Tex. Fam.Code Ann. Section 2.401. All three elements must be in place at the same time for common law marriage to occur.

According to the courts, the agreement to be married means that the man and woman had an immediate agreement to be married as husband and wife, and they intended to have a permanent marital relationship. Simply becoming engaged does not constitute an agreement to be married.

There are certain examples that would tend to support agreements to be married. For example, a couple may purchase property such as a home and refer to each other in legal documents as “husband” or “wife”. Each party may include the other in their health plan.

The second element is cohabitation or the act of living together as husband and wife after the agreement to be married. This element is usually easy to prove. However, if couples sleep in separate bedrooms and do not have sexual relations, then an argument can made that there was no cohabitation.

The final element of common law marriage is the acting of "holding out" to the public that the couple is married. Both parties must make representations to the public that they are married. For example, does the man refer to the woman as his wife in front of family and friends and vice-versa ? The element of representation means more than occasional references to each other as husband and wife. The couple's reputation in the community must be as husband and wife.

Other evidence includes legal documents. For example, does either party designate their status on loan applications as being "single”? When the man or woman files tax returns, do they each file separate tax returns as single, under penalty of perjury ? The IRS does in fact consider common-law marriages to be valid. Does the couple possess joint bank accounts or credit cards? Positive responses to such questions would tend to support the third element of common law marriage.

Filing for common-law divorce requires proof that the parties were married in the first place. It is very common for one of the parties to deny that they were in a common law marriage. A strong San Antonio family law attorney is needed to flesh out the evidence to prove up any Bexar County divorce claim.

The Texas Family Code outlines specific grounds for the modification of child support. Bexar County and greater San Antonio judges have the authority to modify a prior child support order, including amounts set aside for health care coverage under Section 156.401 of the Texas Family Code.

The grounds under which child support may be modified include whether the circumstances of the child have "materially and substantially changed". To determine material and substantial change, trial judges compare the circumstances of the parents and the children at the time of the initial order with current circumstances. Current and historical evidence of a person's financial situation is the key to such an analysis. Without the ability to compare 2 distinct sets of financial data, the court will not modify the order. Bexar County courts are given broad discretion in setting child support and revising the payments.

For example, in one case, the children no longer lived with the mother during the week and she was no longer providing the same level of services to the children as she did at the time of the divorce. However, the father was providing a greater level of services to the children now than he did when the divorce occurred. Such a change in circumstances represented a material and substantial change that obviated a modification of child support.

The other grounds for modifying a San Antonio child support order is if the order to be modified is greater then three (3) years old and the monthly amount under the revised order differs by 20% or $100 from the amount that would be awarded under the child support guidelines.

When dealing with out of state child support orders and where both parties have moved to Texas with the child, the ideal situation is for both parties to consent to venue in Bexar County. If the parties agree on allocation of child support and health insurance, a San Antonio family law attorney can submit a consent order without either party having to appear.

The Office of the Attorney General of Texas puts out tax charts for computation of net monthly income so that courts can calculate the amounts in a child support order. One starts with the obligor's annual gross income, which can be calculated from income tax returns from the last two years. The number is divided by 12 to get the average monthly gross income. Subtracting the amount paid for the child's health insurance if applicable, yields a monthly gross wages. The tax charts allow you to calculate net monthly income or net resources after deducting federal income taxes and insurance taxes like Medicare.

The net monthly income is then multiplied by a percentage based on the number of children to determine the monthly child support. For example, for support for only 1 child with no other dependents, the percentage is 20% of the net monthly income to determine the amount of the monthly child support.

For modifications of Texas child support, contact a Bexar County family lawyer or San Antonio child support attorney today.

A Texas product liability lawyer must be very mindful of House Bill (HB) 4, which has preempted the rights of personal injury victims. The purpose of this blog entry is to review some of the major changes associated with HB4 in Texas product liability law.

HB 4 had several major changes. First, it created a presumption of no liability in particular areas. It created a 15 year statute of repose. A statute of repose is similar to a statute of limitations, but usually the deadlines are enforced more strictly . For example, the statute of limitations would be tolled or delayed based on the discovery rule, which states that the clock on bringing a claim does not run until the injury could reasonably have been discovered, A statute of repose would not normally be tolled by the discovery rule. HB4 also created immunity for passive sellers.

The Texas Civil Practice and Remedies Code (CPRC) codifies these changes, including a presumption of no design or marketing defects in certain areas; a presumption of no marketing defects in specific Texas medical device / pharmaceutical drug injury cases; the creation of the 15 year statute of repose; and the establishment of passive seller immunity.

CPRC 82.008 created a presumption of no liability for the formulation, labeling, or design of a product if the manufacturer or sellers follow mandatory federal regulations / safety standards. If the seller or manufacturer demonstrates that he complied with the mandatory standards or regulations, then the Texas product liability lawyer must overcome a presumption that the manufacturer / seller is not liable for any injury caused by some aspect of the formulation, labeling, or design of the product.

The seller /manufacturer must show that the presumption of no liability is applicable. Keep in mind that the presumption is limited to formulation, labeling, or design. If a Texas citizen claims serious personal injury based on a marketing defect other than the labeling, than the presumption of no liability is not applicable. In addition, the mandatory safety standard or regulation must have been in effect at the time of the manufacture and be applicable to the risk that created harm.

To illustrate, Federal Motor Vehicle Safety Standard 207 governs seat back strength. The purpose of this federal law was to protect a passenger from injuries from a seat back failure and certain Texas seat belt injury cases. However, the regulation is not applicable to protect passengers who sustained injuries from a front passenger seat back failure. It is absolutely essential for a Texas personal injury lawyer to engage in a careful analysis of the federal safety standards in order to combat any rebuttable presumptions that may be created by Texas product liability laws.

Do you remember the OJ Simpson criminal and civil trials of the 1990s? In that case, in June 1994, Nicole Simpson and Ronald Goldman were found stabbed to death. Criminal charges were filed shortly thereafter against OJ Simpson for murder. What people fail to remember is that in May 1995, a wrongful death civil lawsuit was filed against OJ Simpson on behalf of the Goldmans. However, the civil suit trial did not commence until after the criminal trial ended in the acquittal of Simpson in October 1995. The civil trial commenced in October 1996 and resulted in a jury finding of liability against Simpson with compensatory damages of $8.5 million.

People often wonder about the disparate results between the civil and criminal cases. The answer lies in the standard of proof. The criminal case required a standard of proof of beyond a reasonable doubt, while the civil case requires the lesser standard of preponderance of evidence , which means a greater than 51% chance that Simpson killed Goldman. So it would be much easier to obtain a finding of liability in the civil matter than in the criminal one.

The law allows a Texas civil action for assault by infliction of bodily injury if the defendant acted intentionally, knowingly, or recklessly; made contact with the plaintiff; and caused bodily injury to the plaintiff. The action of personal injury assault can also be brought against the employer if the assault was committed by the employee within the course and scope of his employment. This type of situation is known as vicarious liability under the doctrine of respondeat superior. A defendant can also be held liable for assault under the theory of participatory liability if the defendant aided and abetted another to commit the assault or participated in a conspiracy to commit the assault.

The type of contact needed to prove assault can be direct or indirect. Indirect contact examples can be a police officer who crashes his patrol car into the plaintiff's car or a defendant who shoots a plaintiff with a gun.

To prove injury, a San Antonio personal injury lawyer must demonstrate the plaintiff suffered some pain, illness, or impairment due to the contact per Texas Penal Code Section 1.07(a)(8). The type of contact must be greater than mere offensive touching.

In a civil action for assault, the plaintiff can recover actual damages including damages for physical pain, mental anguish, medical care, loss of earning capacity, physical impairment, and disfigurement. The plaintiff can also recover exemplary or punitive damages. Plaintiff can also recover prejudgment and postjudgment interest as well as court costs. Generally, attorney fees are not recoverable in an assault action.

There is a 2 year statute of limitations in Texas civil assault claims regardless of whether there is an ongoing criminal investigation / trial. The statute of limitations for sexual assault is 5 years. The clock begins running when the assault occurs. There are various defenses to a claim for assault damages, including consent to the defendant's conduct and self defense provided the use of deadly force is used to defend against unlawful deadly force. The defendant does not have a duty to retreat if he had a right to be at the location, did not provoke the plaintiff, and was not engaged in criminal activity. A defendant can assert the defense of justified force to protect a third party or protect his property.

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries.

In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child's death. Any expenses must also be reasonable in order to have recovery.

In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions.

When an adult child has died, the parents are entitled to pecuniary damages relating to care and maintenance that the parent would have received from the adult child if he had not died. /for example, in the Ledezma case, the jury awarded $215,000 in pecuniary losses to the mother of an adult child who had supported his family since the age of seven.

Under the Texas Wrongful Death Act, the beneficiary may assert damages for loss of inheritance. The loss of inheritance damages are determined by estimating the amount the decedent would have left the beneficiaries if not for the premature death or accident. If for some reason, the deceased injured party would have outlived the beneficiary, then inheritance damages would be denied. There must also be enough evidence in the record to place a dollar figure on the likely estate value at the end of a normal life as well as the present value if the estate in order for such inheritance damages to be awarded.

Wrongful death claimants and survival beneficiaries are also entitled to lost earnings. A loss of earnings capacity damages claim is not limited by the deceased's salary prior to injury. For example, a plaintiff has been found entitled to loss of earnings capacity damages when the deceased was unemployed at the time of injury.

There is a distinction between loss of earnings capacity damages and loss of earnings damages. In contrast to loss of earnings capacity, to obtain loss of earnings damages, the wrongful death plaintiff must demonstrate with reasonable certainty that actual amount of lost past earnings. It must also be shown that the plaintiff who was killed had capacity to work prior to the injury and the injury seriously hurt that capacity. Moreover, any past employment that can illuminate what the plaintiff's future earnings could have been can be introduced. Evidence of the weaknesses and degenerative nature that resulted from personal injury and plaintiff's work-life expectancy are additional factors.

Medical and funeral expenses, pecuniary losses, loss of inheritance, loss of earning capacity, and loss of earnings are some of the economic damages a Texas wrongful death lawyer will pursue for you in a San Antonio serious personal injury accident or malpractice claim.

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman's breast.

Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider's failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury's common sense and general experience. Even the defendants' expert testified that the plaintiff required an escort to prevent falling.

In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor's opinion.

Rule 702 of the Texas Rules of Evidence governs the admission of expert testimony. First the expert must be qualified. Second, his proposed testimony must have scientific or technical foundation. The trial court has the discretion to apply such standards to determine the admission of expert testimony.

In Robinson, a Texas product liability case , the plaintiff sued a pesticide manufacturer for a product that damaged their pecan trees. Initially, despite the plaintiff's expert credentials, the plaintiff's expert was not allowed to testify due to alleged unreliable testimony. The Texas Supreme Court in response adopted the Daubert standard indicating that both relevancy and reliability were needed for admissibility of an expert's testimony. The Court cited such factors as the extent of scientific testing of the expert's theory, the amount of subjective expert interpretation, peer review of the theory, potential rate of error, acceptance of the theory by the scientific community, and non-judicial uses of the theory.

As you can see, a Texas personal injury lawsuit begins and ends with the quality of the expert. The expert's theory must be relevant and reliable. If you can overcome the hurdles involved and get the expert's testimony admitted, a Texas medical malpractice or San Antonio wrongful death attorney can recover what you deserve.

The lost chance of survival doctrine in medical malpractice cases does not exist in Texas. Ultimately, Texas medical malpractice laws state that a plaintiff's ability to recover monetary and punitive damages for personal injury is barred where the medical practitioner's negligence deprived the plaintiff of only a 50% or less chance of survival.

To illustrate, in the Milo matter, the patient underwent a hernia operation. Soon thereafter, he began to complain greatly of pain. It turned out that the surgeon's sutures had rotted, leading to sepsis and shock. Milo was placed on a respirator. A different doctor tried to take Milo off the respirator and after several attempts, Milo went into sudden cardiac and respiratory arrest, causing brain damage and her death 4 months later. The ultimate question before the court was whether Milo would have survived if the other doctor had not tried to take her off the respirator. The plaintiff's expert testified that before the debacle with the respirator, Milo only had a 40% chance of surviving her pre-existing condition with the sutures. Because the negligence dealing with the respirator reduced the plaintiff's already less than even chance of survival, the Texas Supreme Court barred recovery for the respirator negligence as a matter of law.

In Rodriguez, parents of a baby brought a Texas medical malpractice claim for failure to give the mother antibiotics to the mother and infant, resulting in the baby's death. The defendants argued that the plaintiffs failed to provide an expert who testified that an earlier provision of the antibiotic would have saved the infant. The court barred recovery because the experts could not testify that the baby's chance of survival would have been greater than 50% had he been administered the antibiotics.

In Hawley, plaintiff sued a hospital for failure to timely inform her of a colon cancer diagnosis known as "Duke's C" cancer. By the time she learned of the diagnosis a year later, she had developed an inoperable liver tumor. The defendant doctors and hospital argued that there was no evidence to prove that Hawley had a greater than 50% chance of survival with a Duke's C diagnosis. However, Hawley's medical providers indicated that with a Duke's C diagnosis, she had a 60-65% chance for survival as opposed to a Duke's D diagnosis in which she had a 0-30% chance of survival. The jury's verdict in favor of the plaintiff was upheld.

If you have been a victim of misdiagnosis or medical negligence that has caused a Texas wrongful death or personal injury, contact a wrongful death San Antonio and greater Texas lawyer today!