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Tuesday, October 4, 2022
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Tort Reformists Place Texas Appellate Court on Notice

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Court room and hammer. | Image from Michał Chodyra

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A Dallas appellate court is listed on the American Tort Reform Foundation (ATRF) 2021-2022 “Judicial Hellhole” Watch List for the first time in the ranking’s 20-year history.

“We’ve always regarded Texas as a model in terms of enacting reform but we’ve seen some problematic issues coming out of the Fifth Circuit Dallas Appeal Court,” said Tiger Joyce, president of the American Tort Reform Association (ATRA).

The Texas Court of Appeals for the Fifth District, which serves Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties, joins Colorado, Minnesota, the Florida Legislature, and Maryland on this year’s Judicial Hellhole Watch List.

“Watch List jurisdictions may be moving closer to or further away from a designation as a Judicial Hellhole,” Joyce told The Dallas Express.

According to ATRF, a judicial hellhole is a jurisdiction where judges systemically apply laws and court procedures in an unfair and unbalanced manner against corporate defendants in civil lawsuits; however, the list has expanded to include executive branches and state legislatures.

“We highlight why we think these different jurisdictions are problematic from the standpoint of civil litigation and looking at it mostly from the perspective of corporate defendants who find themselves in these courts,” Joyce said in an interview.

A newcomer to the jurisdictional Watch List, the Texas Court of Appeals for the Fifth District allegedly engages in procedural irregularities.

“There are two instances in which procedural irregularities have occurred in civil cases,” Joyce added. “It is not yet to the point of being a systemic issue, but by putting them on the Watch List, we want them to know we’re keeping an eye on things.”

The report states that Judge David Schenk accused some of his colleagues of having manipulated court rules to change decisions involving Texas Citizen Participation Act claims, which allegedly resulted in the delayed release of opinions with the goal of controlling outcomes. However, their efforts were unsuccessful.

“Also of concern is the court’s propensity for expanding liability,” Joyce said. The report alleges that the Dallas appellate court disregarded the state’s ban on introducing evidence about different products and dissimilar accidents and held a defendant liable for injuries caused by a product that exceeded safety standards.

“There was a very large award in which ATRA filed an amicus brief involving Toyota from a few years ago where we believe that the presumption of non-liability for an auto manufacturer that complies with National Highway Traffic Safety Administration standards is appropriate but was not upheld here,” Joyce said.

The Watch List report also cites a case involving American Airlines.

“We thought it was a problematic determination by the Dallas Court of Appeal with regard to the so-called Apex Doctrine, which involves requiring a high-ranking executive from a particular company to testify in a litigation matter,” Joyce said. “The court of appeals decision was problematic from our perspective but the positive is that the Texas Supreme Court overturned that for a good result.”

The Apex Doctrine requires a litigant seeking to depose a senior corporate professional to show that the deposition is relevant and offers information that is not otherwise available through less intrusive discovery strategies.

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