Texas Vol. 16 Issue 21 • May 16, 2016

Workplace safety

Ironworker drowned when boom lift fell in river

$17,720,000

Suarez v. Austin Bridge & Road LP

Harris County District Court, 151st

Plaintiff Counsel Vuk S. Vujasinovic, Lena Laurenzo and Kenneth B. Fenelon, Jr., VB Attorneys, Houston

Defense Counsel Larry G. Black, Larry G. Black Attorney at Law, Kingsland

Full report on page 5

employment – Race Discrimination – Wrongful Termination Harris County Machinist fired for well-known safety violation, company argued . . . . . 7

Motor Vehicle – Lane Change – sideswipe – Truck Anderson County Defendant changed lanes and then plaintiff crashed in ditch . . . . . . . . . . 9

Motor Vehicle – Rear-ender – Lane Change – Intersection Dallas County Driver claimed concussion and soft-tissue injuries in rear-ender . . . . . . 10

Motor Vehicle – Rear-ender – Truck – Multiple Vehicle Dallas CountyNo clear-cut evidence for any accident scenario: defense . . . . . . . . . . . . 11

employment – Retaliation – Discrimination – Wrongful Termination Dallas CountyAssembly worker fired for disciplinary problems: company . . . . . . . . . . 13

Motor Vehicle – Rear-ender – Multiple Impact – Multiple Vehicle Denton CountyPlaintiff claimed brain injury from rear-ender on freeway . . . . . . . . . . . 15

Motor Vehicle – Rear-ender – alcohol Involvement Hidalgo County Drunken driver hit sedan on causeway to South Padre . . . . . . . . . . . . . 17

employment – Race Discrimination – National Origin Discrimination FederalBakery predominantly hired Hispanic applicants . . . . . . . . . . . . . . . . . . 18

Breach of Contract – Fraud – Fraudulent Inducement – Conspiracy Federal Dispute arose between owners of YouTube channel . . . . . . . . . . . . . . . . 19

Cases of Note

hotsheetInsurance Disputes . . . . . . . . . . . .4

SoutheaSt

SoutheaSt harriS Count y

featured verdict

workplaCe SafetyWrongful Death — Products Liability

Ironworker drowned when boom lift fell in riverMixed VerdiCt $17,720,000

CaSe Raquel Soto Castillo Suarez, Lucia Suarez, Raquel Suarez and Ruben Dario Suarez individually and as the heirs and representatives of the Estate of Jose Dario Suarez, deceased v. Austin Bridge & Road LP, Derr & Isbell Construction LLC, Genie Industries Inc., Austin Commercial LP, Flintco LLC, Terex Corp., Baylor University, Robshaw Engineering Inc. and Core Safety Inc., No. 2014-11694

Court Harris County District Court, 151st, TXJudge Michael Engelhartdate 4/14/2016

plaintiffattorney(S) Vuk S. Vujasinovic (lead), VB Attorneys,

Houston, TX Lena Laurenzo, VB Attorneys, Houston, TX Kenneth B. Fenelon, Jr., VB Attorneys,

Houston, TX

defenSeattorney(S) Darrell L. Barger, Hartline Dacus Barger

Dreyer LLP, Corpus Christi, TX (Austin Commercial LP)

Larry G. Black, Larry G. Black Attorney at Law, Kingsland, TX (Austin Bridge & Road LP)

Mark Deaton, Munsch Hardt Kopf & Harr, P.C., Houston, TX (Genie Industries Inc., Terex Corp.)

Stephen B. Edmundson, Cozen O’Connor, LLP, Houston, TX (Derr & Isbell Construction LLC)

Lane Farley, Fletcher, Farley, Shipman & Salinas LLP, Dallas, TX (Baylor University)

Adam Gutmann, Cozen O’Connor, LLP, Houston, TX (Derr & Isbell Construction LLC)

Clifford L. Harrison, Munsch Hardt Kopf & Harr, P.C., Houston, TX (Genie Industries Inc., Terex Corp.)

Christopher Jordan, Munsch Hardt Kopf & Harr P.C., Austin, TX (Flintco LLC)

R. Scott Mayo, Fletcher, Farley, Krueger, Shipman & Salinas, LLP, Dallas, TX (Baylor University)

Gregory C. Noschese, Munsch Hardt Kopf & Harr, P.C., Dallas, TX (Flintco LLC)

John M. Ribarits, Preis PLC, Houston, TX (Robshaw Engineering Inc.)

Amanda Simpson, Hartline Dacus Barger Dreyer LLP, Corpus Christi, TX (Austin Commercial LP)

John W. Slates, Slates Harwell, LLP, Dallas, TX (Core Safety Inc.)

Kenneth H. Tribuch, Preis PLC, Houston, TX (Robshaw Engineering Inc.)

faCtS & allegationS On Jan. 28, 2014, plaintiff’s decedent Jose Suarez, 55, a journeyman ironworker, was an employee of Derr & Isbell, a subcontractor of Austin Bridge & Road LP on a project to construct a pedestrian bridge across the Brazos River on the campus of Baylor University. The project was part of a larger stadium project overseen by Flintco LLC and Austin Commercial LP, which contracted the bridge construction to Austin Bridge & Road. Baylor University contracted Core Safety Inc. to perform safety audits in the overall project. While Suarez was tied off to the basket of a boom lift manufactured by Genie Industries Inc., which was on a barge manufactured by Robshaw Engineering Inc. in the river below the bridge, the boom lift fell off the barge and into the water. Suarez was unable to free himself from the basket and drowned.

Suarez’s wife and children, individually and on behalf of his estate, sued Austin Bridge & Road, Austin Commercial, Flintco, Derr & Isbell, Baylor University and Core Safety, claiming negligence and gross negligence; and Genie Industries (and parent company Terex Corp.) and Robshaw Engineering, claiming negligence under a products liability theory.

Baylor was dismissed in a summary judgment in 2015. Core Safety was dismissed in a directed verdict after the plaintiff rested. Robshaw was nonsuited by the plaintiffs following the close of defense arguments. And the case against Austin Bridge & Road, Austin Commercial, Flintco, Derr & Isbell, Terex and Genie proceeded to the jury.

Plaintiffs’ counsel argued that the boom lift was brought onto the barge and left unsecured in violation of site safety rules and written instructions provided by Genie Industries and Robshaw Engineering directly to Austin Bridge & Road.

Plaintiffs’ counsel argued that Derr & Isbell had been using the lift on the barge for weeks prior to the accident with no intervention by any of the defendants. None of the defendants attempted to train the Derr & Isbell workers on these safety rules, counsel argued.

May 16, 2016 5 www.verdictsearch.com

VerdictSearch texaS

SoutheaSt

Under cross-examination, Austin Bridge & Road’s safety expert testified that the defendants had not met industry safety standards. Plaintiffs’ counsel maintained that marketing defects on both the lift and the barge contributed to the accident. Plaintiffs’ counsel said they made a general claim of defective marketing in their initial pleadings but didn’t find enough evidence to make more specific claims. While never formally dropping Terex and Genie, plaintiffs’ counsel didn’t make any arguments and presented no evidence against them at trial.

Defense counsel denied negligence and gross negligence.Austin Bridge & Road argued that design defects in

the boom were the sole proximate cause of the accident, maintaining a poor control design caused workers to move the boom in the wrong direction, unbalancing the boom and the barge.

The defense design expert for Austin Bridge & Road testified that the controls consisted of three knobs of identical shape beside each other; that this arrangement would have made control difficult; and that a safer alternative design was feasible.

Counsel for Austin Commercial, Flintco and Baylor denied they exercised control over the bridge site.

Counsel for Derr & Isbell maintained that the company was never told of the safety rules involving the lift and barge.

Counsel for Genie Industries and Robshaw Engineering denied design defects and maintained that Austin Bridge & Road was solely liable for bringing the boom onto the barge in violation of safety rules and equipment instructions.

inJurieS/daMageS death Suarez was tied off to the basket of the boom lift when

it fell into the water and dragged him to the bottom of the river. He was declared dead on the scene after his body was recovered later that day. The cause of death was determined to be drowning.

The plaintiffs’ forensic expert testified that Suarez would have remained conscious for a minimum of two to three minutes after being dragged underwater and may have remained conscious for longer. A second worker who was operating the lift at the time of the accident and survived testified that he was conscious underwater for approximately two minutes before he was able to get free and reach the surface. The expert testified that Suarez would have experienced extreme terror and emotional distress prior to death. The surviving worker testified he did experience severe emotional distress prior to escaping the lift. The witness described the river as both dark and freezing cold and the experience as terrifying.

Suarez is survived by his wife, three adult children and three grandchildren. Two of the children testified at trial. A third is a resident of Mexico and did not appear at trial.

The plaintiffs’ economics expert testified that Suarez’s past lost earnings were $366,237, and the expert valued his past lost household services to his wife at $301,109.

The plaintiffs sought $27.7 million for Suarez’s pre-death pain and suffering and his wife and children’s past and future

lost income, loss of household services, loss of society and companionship, emotional distress and punitive damages.

reSult The jury found Austin Bridge & Road solely liable. The plaintiffs were awarded $17.72 million.

eState of JoSe dario Suarez $5,000,000 past pain and suffering $2,000,000 punitive damages $7,000,000

luCia Suarez $250,000 past loss of society companionship

$250,000 future loss of society companionship

$250,000 past mental anguish $250,000 future mental anguish $1,000,000

raquel Suarez $250,000 past loss of society

companionship $250,000 future loss of society

companionship $250,000 past mental anguish $250,000 future mental anguish $1,000,000

raquel Soto CaStillo Suarez $20,000 past lost house hold services $300,000 future lost house hold services $2,000,000 past loss of society

companionship $1,500,000 future loss of society

companionship $60,000 past loss of pecuniary contribution $340,000 future loss of pecuniary

contribution $2,000,000 past mental anguish $1,500,000 future mental anguish $7,720,000

ruben dario Suarez $250,000 past loss of society

companionship $250,000 future loss of society

companionship $250,000 past mental anguish $250,000 future mental anguish $1,000,000

deMand $4,000,000 to $10,000,000 high-low agreement

offer $3,000,000 to $7,000,000 high-low agreement at trial

6 May 16, 2016www.verdictsearch.com

VerdictSearch texaS

SoutheaSt

inSurer(S) Chubb Group of Insurance Cos. for Austin Bridge & Road, Austin Commercial LP, Baylor University, Core Safety Inc., Derr & Isbel Construction LLC, Flintco LLC, Robshaw Engineering Inc., Terex Corp.

trial detailS Trial Length: 10 days Trial Deliberations: 6 hours Jury Vote: 10-2 on negligence, 12-0 on gross

negligence

plaintiffexpert(S) Vincent J. M. DiMaio, M.D., forensic

pathology, San Antonio, TX Thomas H. Mayor, Ph.D., economics,

Houston, TX

defenSeexpert(S) Dean Bernal, workplace safety,

Arlington, VA Thomas Ferris, design, College Station, TX

editor’S note This report is based on information that was provided by plaintiff’s counsel and counsel for Robshaw, Baylor, Derr & Isbell and Core. Counsel for the remaining defendants did not respond to the reporter’s phone calls.

–Rick Archer

eMployMentRace Discrimination — Wrongful Termination

Machinist fired for well-known safety violation, company arguedVerdiCt defense

CaSe Dale L. Johnson v. National Oilwell Varco L.P., No. 2013-62983

Court Harris County District Court, 152nd, TXJudge Robert Schafferdate 2/10/2016

plaintiffattorney(S) Ceola McDonald, Law Offices of Ceola

McDonald, Humble, TX Victoria Plante-Northington, Plante Law

Firm, P.C., Houston, TX

defenSeattorney(S) Mark Holden, Ahmad, Zavitsanos,

Anaipakos, Alavi & Mensing P.C., Houston, TX

John Zavitsanos, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., Houston, TX

faCtS & allegationS In June 2013, plaintiff Dale Johnson, a machinist in his mid-50s, was terminated from his employment at National Oilwell Varco L.P., of Houston.

Johnson, who is black and who had worked for the company for about 23 years, claimed that his termination was due to racial discrimination. Johnson claimed that the reason for his termination — a safety violation regarding a piece of machinery — was pretext for race discrimination, since he did not commit a safety violation. Moreover, other non-black employees who committed safety violations were not terminated without some form of progressive discipline.

Johnson sued National Oilwell on claims of violating state and federal employment law, including Title VII of the Civil Rights Act of 1964.

Video that allegedly supported the alleged safety violation was destroyed by National Oil prior to trial. This was not disclosed to the jury per the instructions of the court. After an evidentiary hearing, the court found that National Oil had destroyed material evidence, but it did not order that a spoliation instruction be given to the jury. The court also found that the destruction of the video prejudiced Johnson’s case.

Johnson maintained that he did not commit a safety violation.

Johnson’s counsel cited a National Oilwell safety-violation document detailing another employee’s use of a piece of machinery. The employee, who is white, was not terminated for committing the same safety violations as Johnson did, his counsel asserted.

Multiple current and former employees testified that a Hispanic employee was not terminated after committing a safety violation. The employees testified the National Oilwell was looking for a reason to terminate Johnson, although it was undisputed that Johnson had a good work record and was a good employee.

The defense maintained that Johnson was solely terminated for committing a well-known company safety violation and not for any alleged discriminatory reasons. Johnson improperly used a piece of machinery that was “tagged out” for maintenance, which was legitimate grounds for termination, the defense argued.

Two supervisors and a human resources manager testified about Johnson’s wrongdoing and why it prompted his termination.

According to the defense, the instance detailed in the company document that Johnson cited was not comparable, since it contrasted Johnson’s circumstances.

The defense cited Johnson’s admission that he did not think he had suffered discrimination until his attorney convinced him that he had.

inJurieS/daMageS anxiety; emotional distress Johnson, who was able to find a machinist job within a

couple weeks of his termination, sought to recover about $200,000 in past and future lost earnings.

Johnson claimed that his termination caused him to experience unhappiness and anxiety, resulting in difficulty

May 16, 2016 7 www.verdictsearch.com

VerdictSearch texaS