Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of July 29, 2013

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

BNSF Ry. Co. v. Phillips, No. 02-11-00250-CV -Opinion, 02-11-00250-CV -Dissenting, (Aug. 1, 2013) (Dauphinot, J. joined by McCoy, J.; Meier, J., dissents with opinion).

Held:  Some evidence supports the jury's finding that Phillips filed his FELA claims within three years from the day his cause of action accrued. Further, toxic tort law does not apply to whole body vibration cases.

Dissent:  The evidence is legally insufficient to support the jury's finding that Phillips's claims did not accrue before April 13, 2004, and to the extent that Phillips's experts relied upon epidemiological studies to prove that his exposure to vibratory forces from rough riding locomotives caused his injuries, they made no effort to demonstrate that the studies met the mandatory requirements for scientific reliability established in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), and reinforced in Merck & Co. v. Garza, 347 S.W.3d 256 (Tex. 2011).

Byrd v. Vick, Carney & Smith LLP, No. 02-11-00468-CV -Opinion, 02-11-00468-CV -Dissenting, (Aug. 1, 2013) (Livingston, C.J., joined by Meier, J.; Gardner, J., concurs and dissents).

Held:  The trial court erred by granting Appellee Nancy Simenstad's motion to dismiss because Appellants' claims against her were not post-decree enforcement claims required to be brought in the divorce court. Additionally, the trial court erred by granting a traditional summary judgment on some of Appellants' claims against Appellee Cantey Hanger LLP because it is not immune from liability as a matter of law for the specific act pleaded by Appellants.

Concurrence and Dissent:  The trial court did not err by granting summary judgment for Cantey Hanger because the law firm conclusively established its immunity defense, which shifted the burden of pleading and proof to Appellants, and because Appellants failed to plead and present evidence creating an issue of fact relating to the fraud exception to the law firm's immunity defense.

Rogers v. Orr, No. 02-12-00333-CV (Aug. 1, 2013) (Meier, J., joined by Dauphinot and McCoy, JJ.).

Held:  Rogers—a registered accessibility specialist—is not a state "officer" for purposes of bringing an interlocutory appeal of an order denying a motion for summary judgment based on an assertion of immunity.

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