Abraham Watkins Blog
For 57 years, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend has practiced personal injury law and business litigation in Texas.
Abraham Watkins has stayed on the leading edge of litigation skills, demonstrative results and current technology, and we are proud to be one of the first personal injury firms to develop a blog to help educate those individuals who suffer an injury usually though no fault of their own. It is our fervent hope this blog will assist people by providing education, information and answers to questions in their time of need.
We hope others contribute to this blog so that it serves as a resource not just to one or two individuals, but to many people who are suffering the adverse affects of a senseless injury.
Please tell us what you think; what information you would like to know more or less about; and what would keep you coming back. Please email us your feedback and questions. We look forward to hearing from you.
New Study on Birth Injuries
Posted by: Chelsie Garza
June 26, 2009
Topic: Individual Legal Resources
A new government study found some interesting results and disparities in injuries to women and babies during childbirth. From the study, released this month by the Agency for Healthcare Research and Quality, it appears that poor women are less likely to be injured during deliver, but their babies are at higher risk.
According to the government study, women covered by Medicaid were less likely to be injured in childbirth than those women with private insurance. Their babies, however, were more likely to experience complications, such as broken collar bones, head injuries and infections. A similar result was also found when researchers compared births in urban and rural hospitals. Researchers found that mothers had fewer complications in rural hospitals while their babies suffered greater risk.
Overall, however, the news from the study was positive. Researchers observed that childbirth complications have declined in the years between 2000 and 2006. For this study, researchers scrutinized data from 1,000 hospitals that are part of a national database. Included in the study were 158,000 injuries that could potentially have been prevented. Although researchers were not able to compare injuries to babies from 2000 to 2006 because hospitals changed the way that they computed those statistics in 2003, they were still able to determine that there were 32 injuries per 10,000 deliveries.
Despite the decline in birth related injuries, there are still those that can be avoided with proper care. The results of this study lead some to wonder where the cause of the disparity lies, but without further research it is difficult to determine.
For more information, see a full report at the Women's Health section of msnbc.com or go to http://www.ahrq.gov/news/nn/nn061709.htm to read the study results.
It is About Helping Our Clients
Posted by: Brant Stogner
June 26, 2009
Topic: Attorney Perspectives
Today, Johnny Garza and I left the office to drive out to meet one of our clients. This particular client was severely injured as a result of the clear gross negligence of his employer. In fact, this client is now quadriplegic and will never be able to walk again, hold his wife, or be able to feed himself again. The only limited movement that the client still has is the ability to speak, move his head and neck, and the ability to move his right arm a bit. The client spends all day in his electric wheelchair with his wife at his side 24/7. While this client cannot use his right hand to grip anything, he can use it to move the joystick on his wheelchair with his palm and a tool that he has tied around his right hand. This is his only means of independent movement.
This client called last night to let us know that his electric wheelchair is no longer working properly and that he has been confined to his bed. Without his electric wheelchair, this client will be forced to remain in his bed staring at the ceiling and not be able to interact with the family he once provided for. Mr. Garza and I went to the client's home and transported his wheelchair to a repair facility here in Houston. This type of commitment to the client is the reason that I wanted to join Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. At no other firm have I seen, or even heard of, this type of mentality towards the client.
At the end of the day, most attorneys work hard for their clients. The attorneys at Abraham, Watkins, work hard to improve the lives of their clients - not to improve an insurance company's bottom line. We all strive to make a positive impact in the lives of our clients. It truly is about helping our clients.
UNITED STATES SUPREME COURT RULES IN FAVOR OF BIG BUSINESS
Posted by: Muhammad Aziz
June 24, 2009
Topic: Legislative Issues
In a 5/4 decision that announced yesterday, the U.S. Supreme Court restricted the rights of employees to sue their employer under the Age Discrimination in Employment Act (ADEA). The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
The Supreme Court ruling makes is much more difficult (if not almost impossible) for an employee to prove their case under the ADEA. Justice Clarence Thomas, writing for the majority stated: "a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons."
He went on to write: ""We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision."
Chief Justice Roberts and Justices Scalia, Kennedy and Alito joined Thomas' opinion, while Justices Breyer, Ginsburg and Souter joined Stevens' dissent.
Texas Supreme Court Protects Religious Freedom
Posted by: Clyde Jackson
June 24, 2009
Topic: Legislative Issues
In an opinion issued last Friday, the Texas Supreme Court used a Texas statute to protect the free exercise of religion which a city attempted to curtail by an ordinance.
The case was Pastor Rick Barr and Philemon Homes, Inc. v. City of Sinton, ___ S.W.3d ___ (Tex. 2009) (6/19/09). In it, a resident of Sinton had opened a halfway house offering "free housing and religious instruction in two homes he owned. In response, the city passed a zoning ordinance that not only precluded the use of the homes for that purpose but effectively banned the ministry from the city." The Supreme Court ruled that the city had violated the Texas Religious Freedom Restoration Act (TRFRA).
The ministry had a statement of faith and offered Christian counseling and study; it did not accept violent offenders, and had no contract with any governmental organization. When the city passed a certain zoning ordinance, it included distance requirements that virtually eliminated any location for the ministry in the city.
The U.S. Supreme court case of "Smith had held that under the Free Exercise Clause of the First Amendment, neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest". "(In Smith, it was peyote consumption.) Congress therefore provided more protection by statute (RFRA), which applied to states as well as the federal government, but "City of Boerne held that in extending RFRA to the States, Congress exceeded its enforcement authority under Section 5 of the Fourteenth Amendment."
"Smith's construction of the Free Exercise Clause does not preclude a state from requiring strict scrutiny of infringements on religious freedom, either by statute or under the state constitution," So, Texas passed TRFRA, a similar statute, which provides that "government 'may not substantially burden a person's free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that interest.'" The protection of TRFRA is in addition to federal statutory and constitutional law as well as the Texas Constitution. Since TRFRA was passed in the "spirit of protection of religious freedom, we will consider decisions applying the federal statutes germane in applying the Texas statute."
"[Z]oning laws cannot be used to exclude churches from all residential districts in some circumstances." "Schad held that a borough could not use zoning laws to prohibit all live entertainment, including live adult entertainment, within its borders. Surely the free exercise of religion is entitled to no less protection than adult entertainment." In particular, zoning ordinances are included within the purview of TRFRA. So, strict scrutiny will apply.
Here, while the Court "must accept the trial court's fact findings supported by the evidence, the ultimate answers determine the legal rights protected by the Act and are thus matters of law."
A court cannot "'determine the 'centrality' of religious beliefs before applying a 'compelling interest' test.'" "Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application, but TRFRA imposes the requirement by statute."
In this case, the "record easily establishes that Barr's ministry was 'substantially motivated by sincere religious belief' for purposes of the TRFRA."
The phrase "substantially burden" is not defined. "Absent any special meaning, we use ordinary meanings in common parlance. . . . Thus defined [by Webster's], 'substantial' has two basic components: real vs. merely perceived, and significant vs. trivial." So, "the focus is on the degree to which a person's religious conduct is curtailed and the resulting impact on his religious expression. . . [measured] from the person's perspective, not from the government's." This requires a "case-by-case" analysis. Here, because alternate locations were almost non-existent, the zoning ordinance "substantially burdened Barr's ministry." The five "pre-Smith" cases cited by the city "illustrate that the existence and degree of a zoning restriction's burden on religious exercise are practical matters to be determined based on the specific circumstances of a particular case. A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely restricted."
The city claimed that zoning "'is a compelling state interest.' That position . . . has been rejected by this Court and by the Supreme Court." It is a legitimate interest, but is not "superior to fundamental, constitutional rights, such as the free exercise of religion. . . ." The balancing test must be applied "'to the person.'" While "TRFRA places the burden of proving a substantial burden on the claimant, it places the burden of proving a compelling state interest on the government." Here, there were no complaints regarding the halfway house, and the city did not try to enforce the ordinance for more than one year. The city therefore failed to establish "a compelling interest." This does not mean that "government never has a compelling interest in zoning for religious use of property or in regulating halfway houses operated for religious purposes." But in this case the city failed to carry its burden.
Finally, the city "made no effort to show" that its ordinance was "the least restrictive means of furthering [a compelling] interest." So, "applied to Barr's ministry, [the ordinance] violates TRFRA."
Case Law Update ? Responsible Third Parties (RTPs)
Posted by: Brant Stogner
June 16, 2009
Topic: Legislative Issues
In Texas, defendants are able to shift liability to responsible third parties (RTPs) by merely filing a motion for leave to designate. Although, the term RTP is really a misnomer, as a RTP will never be held responsible for any of the inured victim's damages. The only way to ever truly hold a RTP responsible is for the injured victim to add that RTP as a proper defendant in the litigation. Of course, this will not solve all problems, as plaintiffs still cannot recover damages from immune employers protected by the Texas Workers Compensation Act, bankrupt parties, and unknown parties. In short, RTP practice allows defendants to shift liability and to avoid joint and several liability with greater frequency.
One of the few advantages given to plaintiffs by the RTP statute (CPRC §33.004) is the ability to sue a RTP as a defendant, even after the limitations period has expired with regards to that particular party. Essentially, the injured victim (plaintiff) must file suit against a party within the limitations period (this may not even be required). That defendant then designates some other party as a RTP. Even if the limitations period has expired against that particular RTP, the plaintiff can join the RTP as a defendant and defeat any limitations defense by the newly added defendant, provided that the plaintiff joined that defendant within 60 days of the designation as a RTP.
In a recent case, the San Antonio Court of Appeals considered the application of the RTP statute and the limitations savings provision in the context of an agreement between the plaintiff and the defendant. Flack v. Hanke, 2009 Tex. App. LEXIS 3639 (Tex. App.--San Antonio May 27, 2009, no pet. h.). In Flack, the plaintiff (Flack) sued the defendant (Hanke) within the 2 year limitations period. After 2 years had expired from the date of the injury, Flack and Hanke entered a settlement agreement. The agreement provided that Hanke would designate two other parties as RTPs and that Flack would then file suit against those two parties (A and B) to make them defendants in the lawsuit. After Flack and Hanke did this, Hanke was dismissed from the case.
The two new defendants each filed motions for summary judgment based on limitations. One of the defendants (A) also filed a motion to strike its own designation as a RTP. The trial court granted all the motions and Flack appealed. On appeal, the court held that Flack timely filed suit against the two RTPs (A and B) within the 60 window allowed by the RTP statute. The court held that this joinder was proper, even after the limitations period had expired against A and B. The court held the joinder as proper, even in light of the agreement between Flack and Hanke. Thus, according to this court, the plaintiff and the defendant may reach a settlement agreement that allows the plaintiff to institute suit against parties outside the limitations period, provided plaintiff complies with the RTP statute. The court also held that although Hanke was a "settling person" at the time of the designation of A and B, Hanke was also still a "defendant" and was allowed to designate RTPs. The court noted that nothing in the definitions of "settling person" or "defendant" made the definitions mutually exclusive.
With regards to A's argument that its limitations defense should prevail, given that it was struck as a RTP, the court held that only a party can move to strike the designation of a RTP. The court noted that A was in fact a party at the time that it moved to strike its own designation as a RTP. However, the court held that once Flack had joined A as a defendant in the suit, A lost its status as a RTP and, thus, A could not move to strike its designation as a RTP because it was no longer a RTP. A had become a defendant and had lost RTP status. In the end, the court remanded the case to the trial court to allow Flack to proceed to trial against A and B. Thus, those representing plaintiffs should be aware of the possibilities in adding defendants after limitations. The plaintiff can even make it a condition of a settlement agreement with a defendant.