|
Liability |
|
Joint and
Several |
|
Economic
Damages |
Limited |
Joint liability is limited
to where the defendant is more than 50% at fault
or committed an enumerated felony in concert with
another person. Defendants can designate (as
opposed to join) other responsible third parties
whose fault contributed to causing plaintiff’s
harm.
Tex. Civ. Prac. & Rem.
Code Ann.
§ 33.013. |
|
Non-Economic
Damages |
Limited |
See
above |
|
May a
Jury Allocate Fault Among All Persons Contributing
to an Injury? |
Yes |
Tex. Civ. Prac. & Rem.
Code Ann. § 33.003. |
|
Market
Share Liability |
Undecided |
The Texas Supreme Court
has stated that theories of liability based on
market share are neither approved nor disapproved
in product liability cases.
Gaulding v. Celtex
Corp., 772 S.W.2d 66 (Tex.
1989). |
|
Defenses |
|
Comparative
Negligence |
Yes,
modified |
Claimant may recover only
if his percentage of responsibility is less than
or equal to 50%.
Tex. Civ. Prac. & Rem.
Code Ann.
§§ 33.001,
33.012(a). |
|
Assumption
of Risk |
No |
Assumption of risk is
subsumed into comparative
negligence.
Tex. Civ. Prac. & Rem.
Code Ann.
§§ 33.003; Duncan v. Cessna
Aircraft Co., 665 S.W.2d 414 (Tex. 1984). |
|
Product
Misuse |
No |
Product misuse is
considered in determining comparative negligence;
it is not a distinct defense.
Hernandez v. Tokai
Corp., 2 S.W.3d 251 (Tex.
1999). |
|
Compliance
With Government Standards |
Yes, rebuttable
presumption |
In a products liability
action, there is a rebuttable presumption that the
product manufacturer or seller is not liable for
any injury to a claimant caused by some aspect of
the formulation, labeling, or design of a product
if the product's formula, labeling, or design
complied with mandatory safety standards or
regulations adopted and promulgated by the federal
government, or an agency of the federal
government, that were applicable to the product at
the time of manufacture and that governed the
product risk that allegedly caused
harm.
The same standard is
applicable to compliance with the
government's or agency's procedures and
requirements with respect to pre-market licensing
or approval.
Tex. Civ. Prac. & Rem.
Code Ann. §
82.008. |
|
Statute
of Repose |
Yes |
A claimant must commence a
products liability action against a manufacturer
or seller of a product before the end of 15 years
after the date of the sale of the product by the
defendant, unless the manufacturer or seller
expressly warrants in writing that the product has
a useful safe life of longer than 15
years.
The statute of repose does
not apply where: (1) the claimant was
exposed to the product that is the subject of the
action before the end of 15 years after the date
the product was first sold; (2) the
claimant's exposure to the product caused the
claimant's disease that is the basis of the
action; and (3) the symptoms of the claimant's
disease did not, before the end of 15 years after
the date of the first sale of the product by the
defendant, manifest themselves to a degree and for
a duration that would put a reasonable person on
notice that the person suffered some
injury.
Tex. Civ. Prac. & Rem.
Code Ann.
§ 16.012. |
|
Government
Contractor Defense |
Military equipment
only |
Recognizes a government
contractor defense for design defects in military
equipment.
Torrington Co. v.
Stutzman, 46 S.W.3d 829 (Tex.
2000).
Rejects a
government-contractor defense as a matter of Texas
state law.
Hansen v.
Johns-Manville Prods. Corp., 734 F.2d 1036
(5th Cir.), cert. denied, 470 U.S. 1051
(1984); Augustine v. Bell Helicopter
Textron, 922 S.W.2d 287 (Tex. Ct. App.
1996). |
|
McLawsuits
Permitted?
Can a food manufacturer,
distributor, seller, or retailer be sued based on
an individual's weight gain, obesity, or
obesity-related health
condition? |
No |
|
|
Compensatory
Damages |
|
Is there a statutory limit
on economic damages? |
Yes, in medical
malpractice actions |
In a wrongful death or
survival action on a health care liability claim
where final judgment is rendered against a
physician or health care provider, damages are
limited to $500,000 for each claimant, regardless
of the number of physicians or health care
providers against whom the claim is asserted or
the number of separate causes of action on which
the claim is based.
Tex. Civ. Prac. & Rem.
Code Ann.
§ 74.303. |
|
Is there a statutory limit
on non-economic damages? |
Yes, in medical
malpractice actions |
In an action on a health
care liability claim where final judgment is
rendered against a physician or health care
provider other than a health care institution,
noneconomic damages are limited to $250,000 for
each claimant, regardless of the number of
defendant physicians or health care providers
other than a health care institution against whom
the claim is asserted or the number of separate
causes of action on which the claim is
based.
In an action on a health
care liability claim where final judgment is
rendered against a single health care institution,
noneconomic are limited to $250,000 for each
claimant.
In an action on a health
care liability claim where final judgment is
rendered against more than one health care
institution, noneconomic damages for each health
care institution, are limited to $250,000 for each
claimant and noneconomic damages for all health
care institutions are limited to $500,000 for each
claimant.
Tex. Civ. Prac. & Rem.
Code Ann.
§ 74.301.
The Texas Supreme Court
ruled that a statute limiting liability to
$500,000 for damages in medical malpractice
actions violated the open courts provision of the
Texas Constitution in Lucas v. United
States, 757 S.W.2d 687 (Tex. 1988). The
court also overturned a $500,000 cap on
noneconomic damages (adjusted annually) as applied
to cases other than wrongful death in Rose v.
Doctors Hospital, 801 S.W. 2d 841 (Tex.
1990). |
|
Is recovery for
medical monitoring permitted without physical
injury? |
Uncertain |
|
|
Punitive
Damages |
|
Is there a statutory
limit? |
Yes |
Punitive damages are
limited to the greater of (1) two times economic
damages plus amount equal to noneconomic damages
up to $750,000; or (2)
$200,000. Tex. Civ. Prac. & Rem.
Code Ann.
§ 41.008. |
|
Is there any restriction
on imposing
multiple punitive damage awards for same
conduct? |
No |
|
|
Does the state receive a
portion of the punitive damage
award? |
No |
|
|
What standard is
used? |
Clear and convincing
evidence |
Tex. Civ. Prac. & Rem.
Code § 41.003. |
|
Procedures |
|
|
|
Venue |
|
|
|
Conducive to Abuse
-
Does the statute permit forum
shopping? |
No* |
Lawsuits may be filed
only:
(1) in the county in
which all or a substantial part of the events or
omissions giving rise to the claim
occurred;
(2) in the county of defendant's
residence at the time the cause of action
accrued if defendant is a natural person;
(3)
in the county of the defendant's principal
office in this state, if the defendant is not a
natural person; or
(4) if Subdivisions
(1), (2), and (3) do not apply, in the county in
which the plaintiff resided at the time of the
accrual of the cause of
action.
A court may transfer jurisdiction if there is a better forum for the
suit, upon defendant's motion.
Tex. Civ. Prac. & Rem.
Code Ann § 15.002. (modified by H.B. 4
(Tex 2003)).
Every plaintiff must
establish venue independently of every other
plaintiff.
A court must dismiss or transfer the
case of any plaintiff who cannot establish venue
except upon exception
showing.
Allows interlocutory de
novo appellate review of order granting or denying
transfer or dismissal.
Tex. Civ. Prac. & Rem.
Code Ann.
§ 15.003 (modified by H.B. 4
(Tex. 2003)). |
|
Class
Actions |
|
|
|
Is there a right to an
immediate appeal of class
certification? |
Yes |
Tex. Civ. Prac. & Rem.
Code Ann.
§ 51.014(a)(3). |
|
Appeal
Bonds |
|
|
|
Does the amount of the
required bond place undue pressure on the
defendant to settle rather than
appeal? |
No |
The appeal bond necessary
to stay a judgment is limited to the lesser of 50%
of the judgment debtor's net worth or $25
million.
Tex. Civ. P. & Rem. §
52.006(b). |
|
Evidence |
|
|
|
Has the state adopted
Daubert, which requires the judge to
act as a "gatekeeper" against unreliable expert
testimony? |
Yes |
In 1992, prior to
Daubert, the Texas Court of Criminal
Appeals concluded that Frye was no longer
controlling in Texas. Kelly v. State,
824 S.W.2d 568, 572 (Tex. Crim. App.
1992).
Kelly holds that,
to be admissible under Rule 702, scientific
evidence must be relevant and reliable. To
be reliable, the underlying scientific theory must
be valid, the technique or method applying the
theory must be valid, and the technique or method
must have been properly applied on the occasion in
question. These criteria must be proved to
the trial court by clear and convincing evidence
outside the presence of the jury. Additionally,
Kelly set forth a list of seven
nonexclusive factors for a trial court to consider
in determining
reliability.
In 1995, the Texas Supreme
Court adopted both Kelly and Daubert
and held that, in addition to showing that an
expert is qualified, Rule 702 also requires the
proponent to demonstrate by clear and convincing
evidence that the expert’s testimony is relevant
and is based on a reliable foundation.
E.I. du Pont de Nemours and Co. v.
Robinson, 923 S.W.2d 549, 556 (Tex.
1995).
Kelly directs trial
courts to hold pre-trial Daubert-type
hearings and holds that the proponent of the
testimony in such hearings has the burden of
demonstrating its admissibility. The
standard adopted in Kelly (and subsequently
affirmed by Robinson) applies to all
scientific evidence offered under Rule 702.
Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713 (Tex.
1998). |
|
Private Lawsuits Under Consumer
Protection Statutes |
|
Must each individual
plaintiff show that he or she relied on the
allegedly unfair or deceptive practice at
issue? |
Yes* |
Causation is required
in all actions. A plaintiff must show
detrimental reliance for enumerated
violations.
Tex. Bus. & Com.
Code § 17.50. |
|
What is the level of
scienter (intent) required of a
defendant? |
Not required for recovery
of economic damages |
|
|
Are class actions
permitted? |
Yes |
|
|
Are statutory damages (an
amount set by statute) provided for even if a
plaintiff cannot show an actual economic
injury? |
No |
Generally, a plaintiff may
recover economic damages only.
Tex. Bus. & Com.
Code § 17.50(b). |
|
Does the plaintiff
automatically receive treble (triple) damages
regardless of the intent of the
defendant? |
Available, but not
automatic |
If a violation is
knowingly committed, the plaintiff can recover for
mental anguish and three times economic
damages.
If a violation is
intentionally committed, a plaintiff can recover
three times mental anguish and three times
economic damages.
Tex. Bus. & Com.
Code § 17.50(b). |
|
Does every prevailing
plaintiff receive attorneys fees and
costs? |
Yes |
A defendant may recover
attorneys fees and costs upon a finding by the
court that an action under this section was
groundless in fact or law or brought in bad faith,
or brought for the purpose of
harassment.
Tex. Bus. & Com.
Code § 17.50(c). |
|
Is conduct authorized by
or in compliance with a state or federal statute
or regulation exempt from the
act? |
Yes |
“Nothing in this
subchapter shall apply to acts or practices
authorized under specific rules or regulations
promulgated by the Federal Trade Commission. . . .
The provisions of this subchapter do apply to any
act or practice prohibited or not specifically
authorized by a rule or regulation of the Federal
Trade Commission. An act or practice is not
specifically authorized if no rule or regulation
has been issued on the act or
practice.”
Tex. Bus. & Com. Code
§ 17.49(b).
Texas law also
provides:
“It is the intent of
the legislature that . . . courts to the extent
possible will be guided by . . . the
interpretations given by the Federal Trade
Commission and federal courts to Section 5(a)(1)
of the Federal Trade Commission
Act.”
Tex. Bus. & Com. Code
§ 17.46 (c)(1). |
|
Jury Service |
|
Automatic exemptions and
disqualifications based on occupation eliminated? |
A few
remain |
An officer or an employee
of the senate, the house of representatives,
or any department, commission, board, office, or
agency in the legislative branch of government is
exempt from service.
Tex. Gov't Code Ann. §
62.106. |
|
Are the grounds for
obtaining an excuse from service closely
defined? |
No |
A judge or a judge's
designee may excuse a juror for “any reasonable
sworn excuse.”
Tex. Gov't Code Ann. §
62.110.
Students are exempt from
service. Those who are over 70 years
of age, have legal custody of a child younger than
10 years of age and the person's service on the
jury requires leaving the child without adequate
supervision, serve as the primary caretaker of a
person who is an invalid unable to care for
himself are also exempt.
Tex. Gov't Code Ann. §
62.106. |
|
May jurors automatically
postpone and reschedule
service? |
Yes |
Provides jurors with
the right to one automatic postponement with a
simple and convenient method of rescheduling jury
service to a more convenient time within six
months.
S.B. 1704 (Tex. 2005)
(codified at Tex. Gov't Code Ann. §
62.0142). |
|
Is a juror's employment
and leave time adequately protected during
service? |
Could be
improved |
Employers may not
discharge, harm, or threaten to harm an employee
as a result of jury service.
Tex. Civ. Prac. &
Rem. Code Ann. § 122; Tex. Penal Code Ann.
§§ 36.03, 36.06.
The law could be
strengthened to clarifying that employers may not
require employees to use
leave time in order to
serve. |
|
Is there a limit on the
frequency of jury service? |
Yes |
A person may be called for
jury service unless he or she has served more than
6 days within the preceding 3 or 6
months, depending on the jurisdiction.
Tex. Gov't Code Ann. §
62.102(6).
In counties with a
population of 200,000 or more, a person is exempt
from jury service if he or she has served in the
preceding two years, unless the county has adopted
an electronic juror selection
system.
In counties with a
population of 250,000 or more, a person is exempt
from jury service if he or she has served within
the preceding past three years.
Tex. Gov't Code Ann. §
62.106(6), (8). |
|
Is the length of service
limited to no more than one day or one
trial? |
No |
See above. Although
not provided by statute, several Texas courts have
adopted the one-day/one-trial
system. |
|
Juror per
diem |
Effective January 1, 2006
the per diem was raised from "not less than $6" to
$40 after the 1st day of
service. |
S.B. 1704 (Tex. 2005)
(amending Tex. Gov't Code Ann. §
61.001(a)). |
|
Is additional compensation
available on lengthy trials? |
See
above |
|
|
Is the potential penalty
for nonappearance sufficient to encourage
participation? |
Yes |
Contempt of court
punishable by a fine of not less than $100 nor
more than $1,000.
Tex. Gov't Code §
62.0141. |
|
Problem Jurisdictions |
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