May 23, 2005Our newsletter this month contains reviews of four opinions that were recently rendered by the Texas Supreme Court. Two of the opinions, Cortez v. HCCI-San Antonio, Inc. and Dr. Salah El Hafi and Cardiology Clinic, P.A. v. Baker, significantly restrict the grounds for disqualification of a potential juror who expresses an opinion towards lawsuit abuse and personal injury claims. The Court continued to restrict the cause of action for intentional infliction of emotional distress in Creditwatch, Inc. v. Jackson. Finally, the Court reiterated its support of arbitration provisions by upholding an arbitration agreement that had not been signed, In re Advance PCS Health, L.P. I. A POTENTIAL JUROR'S EXPRESSION OF OPINION ABOUT LAWSUIT ABUSE DOES NOT AUTOMATICALLY DISQUALIFY THE POTENTIAL JUROR The Court in Cortez v. HCCI-San Antonio, Inc. (decided March 11, 2005), held that a potential juror who was a former insurance adjuster was qualified to sit as a juror in a negligence case once he stated that he was "willing to try" to be impartial in his decision.
Carmen Puentes was a resident of the Alta Vista Nursing Home where she was allegedly injured in a fall. She also alleged mistreatment by the nursing home staff. She sued HCCI-San Antonio, who had recently purchased Alta Vista, along with Altman Nursing and Jerry Tristan, for negligence, gross negligence, assault, penal code violations, and intentional infliction of emotional distress. Ms. Puentes passed away while the suit was pending and her heir, Jesus Cortez, pursued the claim on her behalf. During voir dire the plaintiff's attorney questioned a potential juror, Snider, who had previously worked as an insurance adjuster. During the course of Snider's questioning by the plaintiff's attorney, he admitted that he had "preconceived notions" and that he "would feel bias" in a personal injury claim because he had seen lawsuit abuse in many instances. Upon further questioning by the judge he clarified that he would be "willing to try" to listen to the case and decide it on the law and evidence presented. The plaintiff's attorney challenged Snider based on his alleged demonstrated bias. The trial court denied the challenge. The plaintiff's counsel then had to use his final peremptory challenge to strike Snider as a juror. The trial jury returned a $9 million verdict against the defendants which was reduced to $87,869.36 by settlement credits and Puentes' own apportionment of fault. Cortez refused tender of the $87,869 verdict against HCCI and Tristan and filed a motion for a new trial. When the motion was denied, Cortez appealed the judgment on the ground that Snider should have been dismissed from the jury panel for cause.
Cortez argued, relying on several court of appeals decisions, that once a potential juror has expressed bias, further questioning in an attempt to "rehabilitate" is not permitted and the potential juror must be dismissed. While it is generally impermissible to prod an apparently biased potential juror until they recant, the Court held that further questioning to clarify their sentiments is not prohibited. When first questioned by counsel, Snider remarked that he "would feel bias" and that his experiences as an insurance adjuster might give him "preconceived notions." But upon further questioning by the judge regarding his bias, the Court held that it became apparent that Snider's bias was toward lawsuit abuse, not against Ms. Puentes or her case. Snider never indicated that he would be unable to find for the plaintiff and said that he would be "willing to try" to make his decision based upon the evidence presented and the law governing the case. More importantly, the Court held that Snider's comment that the defendants "would be starting out ahead" of the plaintiff did not automatically disqualify Snider as a potential juror. The Court held that:
The Court stated that asking a potential juror which party is "starting out ahead" is an improper attempt "...to elicit a comment on the evidence." The Court concluded that an attempt to determine from a potential juror which party is "ahead" is an attempt to determine how the juror will vote rather than an attempt to determine actual bias. The Court found that the parties in a case "...have a right to an impartial jury, not a favorable one."
The Court's opinion in Cortez dramatically changes the existing case law on what comments by a potential juror will disqualify one from jury service. II. THE BACKGROUND OF A POTENTIAL JUROR DOES NOT DISQUALIFY THE POTENTIAL JUROR FROM JURY SERVICE In Dr. Salah El Hafi and Cardiology Clinic, P.A. v. Baker (decided May 13, 2005), the Court reiterated its holding in Cortez that a potential juror's background does not automatically disqualify the potential juror from jury service.
This is a medical malpractice case in which Dr. Salah El Hafi and the Cardiology Clinic were sued by the plaintiffs claiming that their mother, Jean Baker, died as a result of actions of the defendants.
During the voir dire examination the plaintiffs' attorney questioned a potential juror who was an insurance defense attorney that specialized in the defense of medical malpractice cases (the attorney is not identified in the opinion). The potential juror stated that he could be objective in response to the question from the plaintiffs' attorney "...that if this were a horse race so to speak is the plaintiff starting a little bit behind?" The Court reiterated its opinion in Cortez that the mere statement that one party may be "starting out ahead" does not automatically disqualify the potential juror. The Court concluded that just because a potential juror might view a case based upon his or her own life experiences does not disqualify the juror as a matter of law. The Court held that the potential juror in question consistently disagreed with every suggestion that he could not be fair and objective and as such was not disqualified to serve on a medical malpractice case.
The Court in Salah El Hafi v. Baker reaffirmed it's decision in the Cortez case that one's "life experiences" do not automatically disqualify a potential juror unless the potential juror states that he or she cannot be fair and impartial after listening to all the evidence. III. AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM WILL NOT BE ALLOWED WHEN OTHER POSSIBLE CLAIMS EXIST OR WHEN THE ACTIVITY IS NOT "ATROCIOUS" In Creditwatch, Inc. v. Jackson (decided February 25, 2005), the Court held that the legal claim of intentional infliction of emotional distress is intended to be a "gap-filler" and cannot be used merely because other legal claims have been barred or when the activity is not sufficiently atrocious to rise to the level of intentional infliction of emotional distress. The Court reversed a judgment allowing Jackson to pursue a claim of intentional infliction of emotional distress against her former employer for post-termination misconduct.
Denise Jackson brought suit against her former employer, Creditwatch, Inc., and its CEO, Harold "Skip" Quant, for intentional infliction of emotional distress. The allegations rested on both the sexual harassment she claimed to be subjected to while working for Quant and his retaliatory conduct after her termination. The post-termination retaliatory conduct included Quant's refusal to supply Jackson with a letter of recommendation, the refusal of Creditwatch employees to take reference calls on her behalf, a company-wide policy prohibiting employee contact with former employees, and eviction from a corporate apartment inhabited by another Creditwatch employee where Jackson was staying as a guest. Jackson had previously asserted claims against the defendants for violations of the Texas Commission on Human Rights Act (TCHRA) based on Quant's sexual advances. Jackson withdrew these allegations when defendants moved for summary judgment based on limitations. Her amended complaint was limited to the allegation of intentional infliction of emotional distress for the sexual misconduct and post-termination retaliatory conduct. The defendants filed a motion for summary judgment which was granted by the trial court. The court of appeals upheld the judgment in regard to the sexual misconduct but reversed and remanded the case to trial on the issue regarding post-termination harassment.
Jackson's charges stemmed from both the unwanted sexual advances that she claimed occurred while working for Creditwatch and the subsequent retaliation based upon her refusal to the sexual advances. Jackson had available to her adequate statutory remedies for violations of the TCHRA. However, Jackson was barred from using these remedies due to her failure to file her claim within the statute of limitation period. The statute allowed only 180 days from the date of occurrence to file an administrative complaint. The Court found that "...intentional infliction of emotional distress is a 'gap-filler' tort never intended to supplant or duplicate existing statutory or common-law remedies." As the TCHRA provided adequate remedy for Jackson, there was no "gap" that needed to be filled with intentional infliction of emotional distress claims, even if the statutory remedy was time-barred.
The Court reiterated its prior holding that the conduct necessary to maintain a claim of intentional infliction of emotional distress must be egregious and "beyond all possible bounds of decency." The trial court is required to make the initial determination if conduct extends this far. A claim of intentional infliction of emotional distress is only submitted to a jury when reasonable minds could differ on whether the content is egregious. The Court held that ordinary employment disputes do not give rise to the necessary level to permit a claim for intentional infliction of emotional distress. In this case, while the activity in question occurred after termination, the Court felt that the questioned activities were an extension of employment disputes that necessarily continued after Jackson's employment terminated. The Court conceded that while the alleged conduct was "callous, meddlesome, mean-spirited…, [it was] not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Because the conduct was not egregious enough to be considered intentional infliction of emotional distress, the Court reversed the part of the lower court's decision remanding the claims and entered judgment that Jackson take nothing.
The Court reiterated the criteria necessary to establish a claim of intentional infliction of emotional distress. First, the claim cannot be used to supplant or duplicate actions that have other available and adequate remedies, even if those remedies have been barred for other reasons. Second, the conduct must not just be callous and mean-spirited, but it must be atrocious and intolerable in civilized society. Unless these two criteria are met, a claim for intentional infliction of emotional distress will be dismissed. IV. ARBITRATION PROVISIONS WILL BE UPHELD EVEN IF THE ARBITRATION AGREEMENT HAS NOT BEEN SIGNED The Supreme Court granted a writ of mandamus and ordered the parties to arbitration in a dispute between a pharmacy benefits management company (PCS) and its member pharmacies, In re AdvancePCS Health, L.P. (decided April 15, 2005), even though the document that contained the arbitration provision was not signed by the member pharmacies.
Suit was filed as a class action by several pharmacies against a pharmacy benefits management company (PCS) which processed claims for reimbursement between member pharmacies and the health care plans for customers of such pharmacies. The member pharmacies claimed that PCS had underpaid claims for reimbursement for over ten years. The evidence showed that when a member pharmacy joined the PCS network it received an enrollment package containing a Provider Agreement, enrollment instructions, an enrollment form, a service level worksheet, various network enrollment forms and addenda, and a provider manual. The membership and network enrollment forms were the only documents signed by the pharmacy. The arbitration agreement at issue was contained in the Provider Agreement which was not signed by the member pharmacies.
The Court first pointed out that the Federal Arbitration Act (FAA) as well as Texas law does not require that an arbitration clause be signed. The FAA and Texas law only require that the arbitration agreement be written and agreed to by the parties. In this case, even though the Provider Agreement was not signed by the member pharmacies, the course of conduct between the parties indicated that the member pharmacies agreed to the Provider Agreement. In particular, the member pharmacies had used the services of PCS to process claims for over ten years. The Court therefore found no credence in the argument that the member pharmacies did not rely upon the Provider Agreement or that the member pharmacies were not aware of the arbitration provision in the Provider Agreement. The Court furthermore refused to hold that the arbitration clause was unconscionable. The court noted that an arbitration agreement is not unconscionable in an employment situation "...simply because an employer made a 'take it or leave it' offer to at will employees" which included an arbitration agreement. The Court also refused to accept the argument of the member pharmacies that a provision in the Provider Agreement that allowed PCS to cancel the arbitration agreement at will rendered the agreement without consideration. Finally, some of the member pharmacies contended that the arbitration clause was not disclosed to them until after they had joined the PCS network. The Court pointed out that member pharmacies were on notice of the Provider Agreement and continued to do business with PCS such that member pharmacies could not claim that they were not aware of the arbitration agreement in the Provider Agreement.
The opinion continues the position of the Texas Supreme Court that arbitration agreements will be upheld. |
- Insurance Defense and Litigation
- Commercial Trucking Accidents Defense and Litigation
- Professional Malpractice
- Healthcare Malpractice
- Employment Law
- Constitutional Torts and Civil Rights
- Environment and Toxic Torts - Medical Devices
- Construction Defects
- Oilfield and Offshore Platform Accidents
- Business and Commercial Litigation
Volume V, No. 2
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