1997 – Wrongful Death Involving Cell Phone Distraction

This case was a fairly high profile one because it was one of the earliest cases which highlighted the dangers of cell phone useage while driving.  Added to what would become a recipe for disaster was the fact that the driver who caused the collision was a teenager. 

In January, 1996, a 16 year-old girl whose parents were on a ski trip in Colorado, decided to take her parent’s company van out for a drive, even though she had been forbidden to do so.  She brought a cell phone along with her, and during the excursion, it fell onto the floorboard of the van.  Along the way, the cell phone rang, which distracted the teenager from her driving duties while she reached for the ringing cell phone.

During the few seconds that her eyes were taken off the roadway to retrieve the cell phone, the van veered across the center line of the highway, striking head-on a small compact car which was traveling in the opposite direction.  In the other car was a family of four – father and mother in the front seat, young daughter and son in the back.  The impact resulted in the death of the 3 year-old boy and serious brain damage to the father, resulting in his total and permanent disability.  The mother and daughter were also injured, but survived without permanent physical injuries.

A wrongful death lawsuit was filed was almost immediately in the 352nd District Court, seeking damages against both the teenager individually and against the teen’s parents.  Besides allegations of common law negligence, the plaintiffs sued under multiple other theories, including negligent entrustment, negligence per se and a claim that the vehicle itself constituted an attractive nuisance for a teenager whose parents were out of town.  With regard to their negligence action, plaintiffs complained that the teen’s parents had failed to properly instruct her on how to safely operate a mobile phone while simultaneously driving a vehicle.

During the pretrial of the case, the plaintiffs asked Judge Sudderth to recognize a new cause of action in the law – a cause of action for negligent entrustment of a cell phone.  Plaintiffs argued that the law recognizes a cause of action for negligent entrustment of chattel (tangible personal property – the cell phone itself).  Plaintiffs argued that such a cause of action exists in the common law if the person supplying the chattel has reason to know it is likely to be used in a manner involving an unreasonable risk of harm.  Plaintiffs argued that the entrustment of a cell phone to a teenager driver under these circumstances was similar to the entrustment of a firearm to a minor child, which had already been recognized in Texas jurisprudence as a basis for liability under the theory of negligent entrustment of chattel.  Judge Sudderth rejected this argument, declining to recognize a new cause of action in Texas law for negligent entrustment of a cell phone.

The plaintiffs also sought damages under the theory of negligence per se, since the teenager was also operating the vehicle with an expired driver’s license at the time of the collision.  Judge Sudderth also declined to apply the law of negligence per se in this case, rejecting plaintiff’s contention that an expired driver’s license was tantamount to driving without a license.  In her ruling, Judge Sudderth drew a distinction between driving under an expired license and driving without ever having been licensed at all.  Causing a collision or reckless driving, Judge Sudderth ruled, would be a direct result of being an unlicensed driver; hence, the law of negligence per se would apply.  However, Judge Sudderth held the mere fact that a valid license had been permitted to expire would have no direct causative relationship with the quality of a driver’s skills or abilities behind the wheel.  Therefore, Judge Sudderth ruled that under the facts of this case driving under an expired license, while a violation of the law, would not invoke the doctrine of negligence per se.

The case went to the jury on the theory of negligence as to the teenager and negligent entrustment of a motor vehicle as to the teen’s parents.  In a 10-2 verdict, the jury imposed liability on the driver, but not her parents.  Damages were awarded against the teenager in the amount of $6.9 million.  Neither the verdict, nor Judge Sudderth’s pretrial legal rulings, were appealed.

The tragic and fatal accident that gave rise to this lawsuit took place in January 1996.  Judge Bonnie Sudderth heard many news accounts of this accident while she was campaiging for the position of judge of the 352nd District Court.  She won that election two months later and by the time she took office, the lawsuit had already been filed and randomly assigned to the 352nd District Court.  The case went to trial one year later and was the first trial that garnered media attention during Judge Sudderth’s tenure on the district court bench.  It was notable because access to cell phones, cell phone technology and research regarding cell phone useage while driving was still in its infancy during this era.

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2004 – Cows vs. Horses

It’s only fitting that this lawsuit would be filed in a court located in Cowtown…

In 2001, Cattle Pros entered into a contract to provide cattle for the National Cutting Horse Association’s (NCHA) Championship Futurity, the Super Stakes and the Summer Spectacular Events over a three-year period of time.  For the first event, the 2001 NCHA Championship Futurity, Cattle Pros was obligated to provide between 10,000-12,000 cattle.  The cattle were required to be between 450-750 pounds in weight and in good health (no blind, injured or physically defective cattle).  In addition, the cattle couldn’t have “too much ear” on them (meaning they must be primarily English breeds) and must be “fresh,” in that they could not have previously been used in a cutting horse event.  (Witnesses testified at trial that cattle which had been “worked” in prior events learned techniques on how to avoid being cut from the herd.) 

Just prior to the first event and after having inspecting less than 20% of the cattle to be provided, the NCHA concluded that Cattle Pros would be unable to provide satisfactory quantity and quality of cattle for the event. Shortly thereafter, NCHA terminated all future contracts with Cattle Pros and made arrangements for another company to supply cattle for next and subsequent events.

Cattle Pros brought suit in the 352nd District Court for breach of contract, seeking damages in excess of $1.5 million.  Summary judgments were presented to Judge Bonnie Sudderth for consideration, but Judge Sudderth denied them, ruling that a fact existed which precluded summary judgment and which would require a jury finding after a full trial on the merits.  The issue at trial was whether or not NCHA had acted within its rights to terminate the contract in advance of the event and whether or not Cattle Pros was able to perform under the terms and conditions of the contract.  Throughout the trial, the judge, the jury and everyone else in the courtroom was provided with a unique glimpse into the world of cutting horses and cutting horse competitions.

At the end of trial, the jury rendered a verdict in favor of the NCHA and awarded the association approximately $250,000 in attorney’s fees.  Judge Bonnie Sudderth accepted the jury’s verdict and signed a judgment in NCHA’s favor.

(Side note:  During trial, one of the attorneys who represented the Cutting Horse Association would frequently whisper to co-counsel so loudly that his voice could be heard several feet away from counsel table. This earned him the nickname among court staff as the “Horse Whisperer.”)

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2009 – Texas Deceptive Trade Practices and the Acai Berry Claims

In response to more than 350 complaints lodged by Texas consumers, the Consumer Protection Division of  Texas Attorney General Greg Abbott’s office sought relief from Judge Bonnie Sudderth of the 352nd District Court of Tarrant County, to enjoin Texas DTPA violations by a dietary supplement distributor regarding the sale of an acai berry supplement called Acai Berry Maxx.  The Attorney General sought a permanent injunction against what his office described as ongoing deceptive trade practices and requested up to $250,000 in civil penalties to be assessed against the vendor for each separate violation.

The lawsuit primarily focused on a website advertisement which offered a “free trial” sample of the product, which the Attorney General contended was not, in fact, free.  In addition, the Attorney General argued that the advertisement itself was deceptive.  In large print, Acai Berry Maxx was advertised as the “#1 Recommended Super Food” which would “reduce the risk of heart disease, Alzheimer’s disease, cancer and premature aging.”  Yet, the advertisement also contained language in fine print stating that the product was “not intended to diagnose, treat, cure or prevent any disease.”

As a part of the sales pitch, online consumers were given four minutes, during which time they were told they could take advantage of a “no obligation,” “free trial offer,” but after which time the offer would expire.  During those four minutes, customers were required to provide a credit card number and agree to three single-spaced pages of various “terms and conditions” in order to receive the “free trial offer.”  The consumer’s credit cards were immediately billed $5.95 for shipping and handling fees, and by agreeing to the terms and conditions, the consumer enrolled in a “continuity plan” which included monthly shipments of the acai berry product for a total of $85.90 per month.  (These monthly purchases would be automatically billed to the consumer’s credit card unless the subscription was cancelled within 14 days of the initial order.)

Numerous consumer complaints were filed with the Attorney General’s Office and the Better Business Bureau as a result of the advertisements and the offer, including allegations that consumers didn’t receive the actual trial sample until after the time had passed to cancel the monthly subscription.  Other consumers reported that when they attempted to cancel the subscription, their calls to the telephone numbers provided were not answered and their emails to the web addresses provided were not responded to.

Almost immediately upon the filing of the lawsuit, the parties announced to Judge Sudderth that they had agreed to settle the case.  The settlement provided that the distributor would stop selling the acai berry product in the State of Texas and would not sell it at any time in the future.  In addition, the vendor also agreed to refund all money requested by former customers and to maintain a customer service website to process and fulfill consumer refund requests for a period of at least six months after the order had been signed.

Judge Sudderth quickly signed an order setting forth the terms of the agreement and permanently enjoining the vendor from making any further false or misleading claims.  Specifically, the order required the vendor to cease claiming that the acai berry product would diagnose, cure, mitigate or prevent diseases and to remove from its website purported success stories about celebrities Brad Pitt and Rachel Ray’s alleged use of the product.  Finally, the distributor was ordered by Judge Sudderth to pay $200,000 to the Texas Attorney General’s Office as a civil penalty for the deceptive trade practices. 

(The Attorney General agreed not to attempt to collect the fine as long as the vendor complied with all other terms of the order, including the permanent injunction against selling acai berry products in the future.)

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2005 – RadioShack / Circuit City Brand Dispute

When Circuit City purchased InterTan, RadioShack’s former Canadian subsidiary, it continued to operate the InterTan stores under the RadioShack name.  RadioShack, concerned that its brand in Canada would be controlled by its competitor at home, sought a temporary injunction in the 352nd District Court of Texas, asking that Judge Bonnie Sudderth temporarily halt the practice.  At the time the lawsuit was filed, InterTan operated 500 RadioShack stores and 340 RadioShack dealerships in Canada.

RadioShack had terminated its licensing, advertising and merchandising agreements with InterTan a year before, but InterTan argued that such agreements didn’t expire until 2010.  Judge Bonnie Sudderth disagreed, and at the temporary injunction hearing she determined that RadioShack had not wrongfully terminated the agreements with InterTan.  Judge Sudderth also ordered Circuit City to stop using the RadioShack brand name on products in the Canadian stores that it had acquired.  Although her order was issued on March 24, 2005, it would not be effective until approximately three months later, on July 1, 2005. 

Circuit City, who offered no reason for wanting to keep the RadioShack brand name in Canada, indicated that it would appeal the decision.  A spokesman for Circuit City commented that the electronics store intended to “use every means of relief possible” to exercise its rights under the agreements, “including all appeal rights.”  No appeal was filed, however, and some time thereafter the companies entered into settlement negotiations.

Judge Sudderth’s ruling effectively ended InterTan’s affiliation with RadioShack, and arguably allowed for the possibility of RadioShack opening its own stores in Canada at some later date.  Approximately one year after her ruling, the parties submitted to Judge Sudderth an agreed stipulation, indicating that the companies had settled their differences.  Judge Sudderth later signed an order of dismissal, ending the litigation.

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2001 – Railroad Collision and the Missing Signal Post

In 1993, a veteran lead engineer was operating a train in heavy fog when he spotted a red stop light at an approaching intersection with another rail line.  Using an emergency braking maneuver, he managed to stop the lead engine a few feet into the crossing.  Seconds later, an approaching train collided nearly head-on into the stopped train, causing the engineer’s death and serious injuries to other crew members.  One year later, a lawsuit was filed by the engineer’s estate and family members, who claimed that a faulty positioned and unlit distance signal which, if visible, would have warned of the approaching intersection, caused the collision.

Seven years later, in 2000, the case went to trial in the 342nd District Court.  In the interim, both sides had inspected the scene of the collision, including the distance signal and had videotaped the signal as they rode a train over the tracks while the signal was in place.  But by the time of trial, for unknown reasons the actual signal post had been taken from the accident scene; it was missing and could not be found. 

At trial, the railroad’s attorneys used a “typical” distance signal that had been pieced together from other used signals as a demonstrative aid.  This exhibit was different from the original signal – it had newer equipment and a more powerful light bulb.  Its surface had also been wiped clean before it had been brought into the courtroom.  When the judge learned of this, he accused the railroad’s attorneys of altering evidence, declared a mistrial, imposed a $10,000 fine against the railroad’s attorney personally and levied a $10,000,000 fine against the railroad.  Several days later, however, without explanation, the judge set aside the fines and recused himself from presiding any further over the case.

Shortly thereafter, the Presiding Regional Judge assigned the case to Judge Bonnie Sudderth of the 352nd District Court.  Prior to retrial of the case, plaintiffs sought to have the sanctions reinstated.  Judge Sudderth denied the request, finding that nothing in the record showed that the railroad had tried to pass off the exhibit as something that it wasn’t.  “It seems abundantly clear that everyone in the courtroom – the judge, the attorneys, the witness and the jury – knew that the signal was a demonstrative aid, and nothing more.”  The signal, Judge Sudderth ruling against the sanctions motion, could have been “run through a car wash” with no harm, since everyone in the courtroom was aware that it was an exemplar, not the original signal.  However, the judge did find that by failing to preserve such a critical piece of evidence, the railroad had “negligently destroyed” it, and Judge Sudderth gave the jury a spoliation instruction that they could “presume that the destroyed signal was unfavorable” to the railroad’s position in the lawsuit.

Less than a year later, it was tried again to a jury, who found no negligence on the part of the railway or the engineer at the time of the collision.  (The National Transportation Safety Board had also investigated the incident and found no fault on the part of the railroad or any of its crew members.)  The jury’s verdict was not appealed, and the parties later reached a confidential financial settlement to  finally put the matter to rest.

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1998 – HMO Class Action Lawsuit

Four hundred Tarrant County doctors filed a class action lawsuit against Harris HMO, alleging that the physician payment system in its plan violated Texas insurance laws.  In the lawsuit, which was filed in the 352nd District Court, the physicians asked Judge Bonnie Sudderth to issue a temporary injunction preventing the HMO from enforcing monetary penalties against doctors who overspent their budget in issuing prescriptions to patients. 

The law in Texas at the time the case was filed provided that managed care entities could not establish physician payment systems which created financial incentives to limit medically necessary care to patients.

At the temporary injunction hearing, the undisputed evidence established that physicians who spent less than budgeted amounts received bonuses from the HMO, while doctors who exceeded their budgets were penalized.  At that point in time, the HMO had imposed millions of dollars in fines against the physicians who had exceeded established budgets.  The doctors argued that they shouldn’t be forced to choose between their bottom lines and their patients’  best interests. 

In issuing the requested injunction, Judge Sudderth found that the HMO’s practices resulted in the denial of medically necessary care to patients.  “These denials include circumstances of cherry-picking, patient-dumping … and outright denials of treatment, referrals and prescriptions,” Judge Sudderth explained, in ruling in favor of the requested injunction. 

A few months later, the Texas Insurance Department levied an $800,000 fine against the HMO for violations of state insurance regulations that prohibit health plans from using financial incentives to encourage doctors to withhold medically necessary care.  Shortly thereafter, the HMO announced its plan to do away with the caps on prescription spending in physician contracts and to compensate the doctors who had been fined for exceeding their budgets.  Within a few days of this announcement, the parties entered into settlement negotiations which resulted in the eventual settlement of the lawsuit.

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1999 – Parvin vs. Dean: Lawsuit for Death of Unborn Child

Judge Bonnie Sudderth granted summary judgment in favor of parents who suffered the death of their unborn child as the result of a car accident, on the following facts:  The mother of the child was struck by another vehicle while driving through an intersection.  The other driver stipulated that he was negligent in causing the collision and the woman was not at fault. 

Immediately after the collision, the woman, who was 9-months pregnant at the time, felt her baby kicking in the womb.  Although her water did not break and she had no bleeding, an ambulance took her from the accident scene to a hospital as a precautionary measure.  Her unborn child died in the womb en route to the hospital. 

The next day, knowing that her child was no longer alive and with her husband by her side, she endured more than nine hours of labor to deliver her stillborn daughter.  The undisputed medical evidence proved that the child was fully developed, viable and could have lived outside the womb immediately before the collision, she had the capacity to cry at the time of the collision, she was alive at the time of the collision but survived only for a short period of time thereafter, and, finally, that the collision was the cause of the child’s death.

 The law at the time this case was filed in the 352nd District Cout was that while Texas parents could recover for the wrongful death of a child who died only moments after birth, parents could not sue for the wrongful death for a child who was not born alive.  The law also provided that while the mother could recover for her own mental anguish due to the death of her daughter, the father could not recover for his mental anguish.

Judge Sudderth granted summary judgment, ruling that a viable unborn child was an “individual” within the scope of the Wrongful Death Act, and should not be excluded under the statute because she was not born alive.  Judge Sudderth also ruled that the father was entitled to the same rights as a mother to recover mental anguish damages for the loss of his child.

Judge Sudderth’s decision was appealed to the Second Court of Appeals, who, sitting en banc, upheld Judge Sudderth’s ruling.  Justice Dixon Holman authored the opinion, which can be found at:  Parvin v. Dean, 7 S.W.3d 264 (Tex. App. – Ft  Worth 1999).  In a subsequent unrelated case, the Texas Supreme Court criticized the Parvin v. Dean decision, but shortly thereafter the Texas Legislature amended the statute to codify this result.

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