Last Friday, the Supreme Court of Texas denied Brenda Young’s petition for review. The 14th Court of Appeals’ holding that Chapter 87 can immunize defendants against suits brought by independent contractors will stand. 

The Court’s notice regarding the denial of the petition for review can be downloaded here.

The Supreme Court did not give a reason for denying the petition. One reason could have been that the Court found no reversible error in the 14th Court’s opinion. As such, the denial may be yet another indication that the Supreme Court agrees with me and other practitioners who believe Chapter 87 applies to suits brought by workers (both independent contractors and employees), subject to its exceptions.

As far as I know, no court of last resort in any state has ever taken up the issue of whether an equine or farm animal immunity statute applies to suits brought by workers.

Related Posts:

Young v. McKim Appealed to Supreme Court of Texas

Texas Supreme Court May Be Inclined to Grant Chapter 87 Immunity to Employers

Another Appellate Court Holds Chapter 87 Immunity Act Applies to Suits Brought by Independent Contractors

Yesterday, counsel for Brenda Young filed a petition for review of the 14th Court of Appeals’ decision discussed in this prior post.  This will be the first time the high court has ever been given the opportunity to decide whether or not Chapter 87 immunity applies to claims brought by workers.

A copy of Young’s petition can be downloaded here.

In her petition, Young contends that the 14th Court of Appeals committed error in holding that:

1.  non-consumers of equine activities (i.e. people who are paid to work around horses) qualify as participants under Chapter 87; and

2.  the posting of warning signs under Chapter 87 was a defense and not an element of proof (i.e. Young asserts that the McKims had the burden of proving that they had posted the Chapter 87 warning signs in order to be afforded immunity under Chapter 87, and that they did not meet that burden).

While I agree with the 14th Court of Appeals’ decision and do not wish to see it reversed, I am pleased that the Supreme Court now has an opportunity to review whether or not Chapter 87 applies to claims brought by employees or other workers.  This issue is currently somewhat “murky” under Texas law.  Clarification is needed because there seems to be a conflict of authority on this issue among the intermediate courts of appeals.  In that respect, I am pleased that Young requested review of the first issue discussed above.

Related posts:

Update on Young v. McKim

Another Appellate Court Holds Chapter 87 Immunity Act Applies to Suits Brought by Independent Contractors

Texas Supreme Court May Be Inclined to Grant Chapter 87 Immunity to Employers

As we discussed in this prior post, the Supreme Court of Texas has not yet addressed the issue of whether Chapter 87 of the Texas Civil Practice & Remedies Code (the “Act”) shields defendants from liability in suits where employees or independent contractors are injured while engaging in an equine activities. Up until last week, we only had two opinions—both from intermediate appellate courts—addressing this issue. 

In the first case—Johnson v. Smith (Corpus Christi 2002)—the court held that independent contractors were participants under the Act, and therefore the Act shielded defendants in suits brought by independent contractors from liability. In the second case—Dodge v. Durdin (Houston [1st] 2005)—the court held that employees are not participants under the Act, and therefore defendants in suits brought by employees are not immune from liability.

As of last Thursday, we now have a third appellate case that sheds light on this issue. The Fourteenth Court of Appeals in Houston recently held that the Act immunizes defendants from liability for claims brought by independent contractors.

The case, styled Young v. McKim, represents the first equine employee negligence suit addressed by a Texas court of appeals since Loftin v. Lee was handed down by the Texas Supreme Court in April of 2011. 

Case Background: Brenda Young had posted a flyer at Ravensway Stables advertising her ability to assist owners in the care of their horses. Tisa McKim and her daughter, Jackie, hired Young to care for their horses—Jasper and Butch—at Ravensway. 

About two months after Young started caring for Jasper (a rescue horse), Jasper kicked Young and injured her. The injury occurred while Young was talking to another boarder at Ravensway while Jasper grazed beside her.

Young sued the McKims for negligence, and the McKims moved for summary judgment under the version of the Act in existence in 2010 (i.e. before the Act was amended in 2011). The trial court granted the McKims’ motion for summary judgment. 

The Appeal: The Fourteenth Court of Appeals affirmed the trial court’s summary judgment in favor of the McKims. On appeal, Young alleged that the Act did not shield the McKims from liability.  Among the reasons Young gave were 1) only “tourists and other consumers of equine activities” qualify as participants under the Act; and 2) Young was an employee of the McKims, not an independent contractor.  Young relied heavily on the First Court of Appeals’ opinion in Dodge on appeal.

The Fourteenth Court of Appeals determined that Young was an independent contractor, not an employee.  The court did not reach the issue of whether the Act would have applied had Young been an employee. The Fourteenth Court disagreed with the discussion in Dodge suggesting that the Act only applied to “tourists and other consumers of equine activities.”

Citing Loftin, the Fourteenth Court held,

“The Equine Act is a comprehensive limitation of liability for equine activities of all kinds…The Equine Act applies to all ‘participants’”. [Emphasis supplied].

It remains to be seen whether Young will be appealed to the Supreme Court of Texas. Given the Supreme Court’s expansive view of the Act set forth in Loftin, the Supreme Court might disagree with Dodge’s holding that the Act does not apply to employees.

Case Information:  Young v. McKim, No. 14-11-00376-CV, 2012 WL 1951099 (Tex. App.—Houston [14th] May 31, 2012, no pet h.).

Related Posts:

Are Employers Immune from Liability for Employees’ Horse-Related Injuries in Texas?

Victory for Horse Industry in Texas Supreme Court

Does Your Farm Need to Purchase Worker’s Compensation Insurance?

Time to Get New Warning Signs: Equine Activity Act Amended in 2011

As I’ve previously stated in this prior post, negligence and malpractice lawsuits against veterinarians are generally “tough sleddin’” for plaintiffs in Texas. Would-be plaintiffs who wish to sue their veterinarians often face major obstacles such as: 1) proving damages; 2) obtaining effective expert testimony; 3) paying litigation expenses where there is a low likelihood of recovery; and 4) finding a lawyer experienced in representing plaintiffs in veterinary malpractice suits.

Last year’s defense verdict in the lawsuit brought by Larry and Lynn Welk against Dr. Jeffrey A. Foland and Weatherford Equine Medical Center, P.C. illustrates some of these difficulties.

If Larry Welk’s name sounds familiar to you, it may be because his father was the famous bandleader Lawrence Welk, host of the long-lived Lawrence Welk Show. Larry and Lynn Welk’s Champagne Ranch, based in Malibu, California, is in fact named after the “champagne music” made famous by Larry’s father.   

The Welks’ lawsuit, filed in the 415th District Court of Parker County, Texas (Judge Graham Quisenberry, presiding), centered around the alleged stifle injuries sustained by their young stallion, Juan Bad Cat. The Welks alleged that Dr. Foland had injected the horse’s stifles and performed a surgery without first consulting with the Welks or the horse’s previous veterinarian. The horse’s prior veterinarian was the late Dr. Van E. Snow of Santa Ynez, California.  According to the Welks’ suit, they lost the opportunity to compete and syndicate Juan Bad Cat due to Dr. Foland’s alleged negligence and malpractice. The Welks sought damages of approximately $3 million against Dr. Foland and his clinic.

Dr. Foland and his clinic filed counterclaims against the Welks, seeking damages for an unpaid veterinary bill, attorneys’ fees, and court costs. 

The Welks were represented by Robert Talaska and Theodore G. Skarbowski, both based in Houston, Texas. Talaska’s firm, according to its website, specializes in human birth injuries. Skarbowski’s firm assists clients with such matters as National Firearms Act gun trusts, commercial litigation, contracts, and estate planning– per its website

Dr. Foland and his veterinary clinic were represented by Dr. Donald A. Ferrill of Brown, Pruitt, Peterson & Wambsganss, P.C. in Fort Worth, Texas. Dr. Ferrill is both a licensed veterinarian and an attorney who regularly represents veterinarians.

After a jury trial in September 2011 that lasted about 9 days, the jury returned a verdict in favor of Dr. Foland and his clinic for approximately $192,000 for an unpaid vet bill and attorneys’ fees. The jury awarded zero damages to the Welks.

I recently got the opportunity to catch up with Don Ferrill, the lawyer who represented Dr. Foland and his clinic, to talk about the evidence revealed in the case. According to Ferrill, “Dr. Snow diagnosed and had been treating the horse for what he believed was a congenital condition in its right stifle since it was approximately one year of age.  The colt was not any worse off after Dr. Foland treated him than he was before the treatment.” 

The plaintiffs’ expert witnesses, when pressed for details on cross examination, gave testimony that helped the defense, according to Ferrill. 

“The evidence showed that Dr. Foland did consult with Dr. Snow’s office prior to performing surgery on the horse, and that Dr. Snow advised Dr. Foland to do the surgery at issue,” said Ferrill. Darren Simpkins, the Welks’ horse trainer who was boarding and training Juan Bad Cat in Texas at the time, testified that he gave Dr. Foland permission to perform the stifle injections, according to Ferrill. “These injections [Vetalog and hyaluronic acid] did not numb pain in the horse’s limbs, did not contribute to lameness, and were the type that performance horses typically receive for routine maintenance,” said Ferrill.   The Welks also had Dr. Foland perform a colic surgery on one of their other horses after the lawsuit was filed, according to Ferrill.

“Prior to the depositions of Darren Simpkins and his wife, Kelly Simpkins, Ted Skarbowski warned Kelly Simpkins that the Welks would sue them if they testified that they gave Dr. Foland permission to perform the injections”, according to Ferrill. “Darren Simpkins nonetheless testified in his deposition that he gave Dr. Foland permission to inject the horse, and the Welks sued the Simpkinses in federal court for breach of fiduciary duty”, Ferrill said. The federal case against the Simpkinses was later dismissed because the statute of limitations on the Welks’ claims against the Simpkinses had already run. 

As an aside, I briefly discussed the Simpkins case and its significance in this prior post

In Judge McBryde’s Memorandum Opinion and Order of March 10, 2010 in the federal case, Judge McBryde stated on page 20, “To put the matter mildly, the testimony given by plaintiffs on February 10, 2010, is suspect.”  He then goes on to explain how the Welks’ deposition testimony in the case against Dr. Foland directly contradicts their depositions in the federal court case.

According to the Champagne Ranch website, Juan Bad Cat stood at stud in 2011 at ESMS in Weatherford, Texas for a fee of $1,500 plus chute fee.

In December 2011, Judge Quisenberry reduced the amount of attorney’s fees awarded to Dr. Foland by the jury as a result of a JNOV (judgment notwithstanding the verdict) motion filed by the Welks’ lawyers. Nonetheless, the final judgment still ordered the Welks to pay damages to Dr. Foland and his clinic, and the Welks took nothing on their claims. According to Ferrill, the Welks also had to pay their own attorneys’ fees pursuant to their fee agreements with their lawyers.

Case Information: Larry and Lynn Welk v. Dr. Jeffrey A. Foland and Weatherford Equine Medical Center P.C., Cause No. CV-07-1322 in the 415th District Court of Parker County, Texas; Lynn Welk, et al. v. Darren Simpkins, et al.; Case 4:09-CV-00456-A in the United States District Court for the Northern District of Texas (Fort Worth Division).

**Note: Thank you to the readers who requested that I cover this case on the Equine Law Blog last fall after the jury reached its verdict. Generally, my policy is to not comment on a case until after its full and final disposition, which in this case happened in late December, 2011. Thank you for reading and for submitting topic suggestions!**

Denton County CourthouseAttorney Gregory M. Dennis gave an excellent presentation on Veterinary Malpractice at the 2010 National Conference on Equine Law.  Greg’s topic could not have been more timely or relevant. We receive multiple calls per week from horse owners wishing to sue their veterinarian for injury to or the death of their horse. 

My firm does not sue veterinarians due to conflicts purposes.  Although we can’t take these cases, we often consult with horse owners who are considering a veterinary malpractice case. If you are considering a lawsuit against a veterinarian, here are some things you should consider:

We usually tell people that most (but not all) veterinary malpractice cases are difficult for plaintiffs for two main reasons:

1)      It is hard to find a veterinarian who will testify against another veterinarian; and

2)      Horses are personal property (chattel) under the law. As such, a plaintiff usually cannot recover pain & suffering damages (for the horse or the owner) or damages based on the sentimental value of the horse.

The burden of proof in a veterinary malpractice action is always on the plaintiffFackler v. Genetzky, 595 N.W.2d 884, 889-90 (1990) appeal after remand 638 N.W.2d 521 (2002).

The plaintiff must prove:

1)      A veterinarian’s acts or omissions failed to meet the standard of care;

2)      Acts or omissions were negligently performed;

3)      Negligently performed acts or injuries caused the animal’s injury or death; and

4)      As a result, the plaintiff was damaged.

See Eades, Jury Instructions on Medical Issues, VETERINARIANS, 7-20 (6th ed. 2004).

To establish element number one (failure to meet the standard of care) the plaintiff must get another veterinarian to testify against the veterinarian being sued for malpractice. Downing v. Gully, 915 S.W.2d 181 (Tex. App.—Fort Worth 1996, writ denied). This is where a lot of people run into problems. They have trouble finding a vet to testify as to what the standard of care was, and that their veterinarian breached that standard of care.

Note: a veterinary negligence case is different from a veterinary malpractice case. If you are suing for ordinary negligence only, a veterinarian might not have to be called to testify.

Example: A healthy horse comes in for his annual vaccinations. A veterinarian leaves a door open and allows a horse to get into the feed room. The horse eats a whole bag of feed and then colics and dies as a result.

Another tough element in many cases is element number 3 (causation). This is especially tough in cases where the horse died. If a horse dies in the care of the vet and the plaintiff wishes to prevail on a malpractice suit, the plaintiff needs to prove that the horse would not have died anyway (but for the vet’s malpractice).

Damages typically awarded in vet malpractice cases in Texas and most states are 1) loss of animal’s market value or the cost of replacement, and 2) veterinary expenses. Because attorney fees are generally unrecoverable on a vet malpractice case, the case might cost more to bring than the horse’s fair market value.

That said, states such as Alaska, Florida, Hawaii, Idaho, Kentucky, New York and New Jersey to some extent, as well as the District of Columbia have expressed a willingness to accept claims requesting damages beyond market value. 

This post is not meant to discourage people from bringing "bad" vets to justice. It is meant to give potential plaintiffs an idea of the legal framework surrounding veterinary malpractice cases in general.

Take aways: 1) Use good vets that you know and trust; if you don’t know a good vet, ask other horse owners in the area for a referral; 2) if your horse is valuable, get major medical and mortality insurance on the horse; and 3) if you suspect malpractice, your first call should be another veterinarian so you can get an idea of whether or not the standard of care was breached. That will be your ultimate issue.

For additional information on veterinary malpractice suits, there is a helpful article  by David S. Favre published online by the Animal Legal & Historical Center.

******

If you are a veterinarian who has testified for a plaintiff in the past or would be willing to testify for a plaintiff, please contact my office as soon as you can so I can refer you to horse owners and other lawyers who may need your services. My number is 817-878-3541. Thank you!

**A special thank you to Greg Dennis, whose presentation materials provided valuable references for this post.

Photo credit:  Courthouselover (Flikr)

A gentleman recently told me that his stallion had gotten loose, gone onto his neighbor’s unfenced property, and "worried" the neighbor’s mares.  The neighbor shot at the stallion with a shotgun, and stated that the police told him he was justified in doing so because the stallion was "trespassing on his property."

Is the stallion owner liable for property damage or injury to persons caused by his stallion?  Generally speaking, not unless the stallion owner knowingly let the stallion roam free.

Important to this analysis is that Texas is, generally speaking, still an open range state.  That is–livestock may still roam at large in Texas with two exceptions:

  1. Public highwaysThe Texas Agriculture Code states "[a] person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway." Tex. Agric. Code § 143.102 (Vernon 2004)(emphasis added). The statute defines a "highway" as "a U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road." Id. at § 143.101. Therefore, U.S. and state highways in Texas are effectively considered closed ranged. Conversely, the 40,000-plus miles of farm-to-market roads in Texas are unaffected by this statute.
  2. Stock Law Counties or Areas.  Chapter 143 of the Agriculture Code permits local elections to adopt a law (a.k.a. "stock law"), where a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held. A typical stock law will prohibit horses, mules, donkeys, sheep, goats, and cattle from running at large.

    As expressly provided by the Code, some counties in Texas have enacted county wide stock laws, yet others have chosen to elect stock laws only in certain precincts or areas within said county. Unfortunately, there is no statewide index that traces the counties or areas where stock laws have been passed.

Continue Reading Is a Horseowner Liable for Damages if a Horse Gets Loose?

Veterinarians may have several legal defenses to claims of malpractice. One of the most important procedural defenses is that of the statute of limitations. A statute of limitations is a state law that puts a limit on the amount of time a plaintiff has to file a lawsuit, usually from the time the injury occurred or when he or she discovered the injury. If the statute of limitations runs out before the lawsuit is filed, then no legal action may be taken.  Any attempt to do so will result in the judge dismissing the suit without hearing the merits of the claim. In order to "toll" the statute of limitations (i.e. make the limitations period stop running), the plaintiff must actually file suit.  Demand letters sent to the vet or the verbal notification of a future claim do not act to toll the statute of limitations.

With veterinary malpractice cases for injury to or death of a horse, the applicable statute of limitations may be based on claims for injury to personal property in that state, as domestic animals are considered personal property of the owner.  Those cases usually have a statute of limitations of four (4) years.

For states that include veterinarians under the list of professions covered by malpractice statutes, they may be based upon statutes that set time limits for malpractice. These statues of limitations are usually shorter, typically two (2) years.

For instance, Georgia law provides a two (2) year statute of limitations for medical malpractice actions.  However, veterinarians are not included in the definition of malpractice actions, because those involve injuries to people only.  Georgia has a four (4) year statute of limitations for injuries to personal property, which would arguably apply to a veterinary malpractice claim brought in Georgia.

Importantly, the manner in which a plaintiff pleads his or her claim (i.e., whether he or she claims common negligence or malpractice) may dictate the statute of limitations.  If a negligence claim is not barred by limitations and a malpractice action is barred, a court would allow the negligence action to go forward and dismiss the malpractice action.

For more information on vet malpractice actions and the applicable statute of limitations, see Veterinarian Malpractice by Davis S. Favre.

Several people have asked me if I thought there would be  litigation over the death of Eight Belles after her second place finish at the 2008 Kentucky Derby on May 3.  Although animal rights activists staged a protest at the office of the Kentucky Horse Racing Authority after the filly’s death, I don’t think there will be any litigation.  

The filly’s death did not seem to be caused by the negligence or wrongdoing of any person or entity.

What did cause Eight Belles to break both front ankles?  According to the Wall Street Journal, Eight Belles’ breakdown may have arisen from a variety of factors such as genetics, track surface, training methods, or medications.  Interestingly, Eight Belles and 2006 Kentucky Derby winner Barbaro were both descendants of Northern Dancer, a 1950s Thoroughbred whose racing career was cut short by leg injuries.

What is being done in the horse racing industry to prevent future breakdowns?  The Welfare and Safety of the Racehorse Summit, which first convened in 2006 after Barbaro’s breakdown in the Preakness, met again in Lexington March 17-18, 2008.  The Summit promulgated its recommendations to improve racehorse welfare, and those recommendations addressed the following issues:

  1. Track Surfaces–including research and development of synthetic (Polytrack) surfaces
  2. Catastrophic injuries
  3. Racing Medication & Drug Testing Laboratories
  4. Education–focusing on training methods
  5. Regulation–to establish uniform regulation of medication and integrity issues
  6. Solutions for unwanted Thoroughbreds
  7. Promote genetic diversity of the Thoroughbred

If the Summit’s recommendations are implemented, huge positive changes in the Thoroughbred racing industry could be realized.  However, according to Dan Metzger, the President of the Thoroughbred Owners and Breeders Association, "miracles will not happen overnight."

 

Someone recently asked me if he had a case against an equine surgery clinic that told his local vet during a telephone conversation to not send them the mare because they did not have room for her at the clinic.  The mare died 4 hours later of colic complications, and the owner stated that she would have lived if the vet clinic had admitted her and performed colic surgery.  The mare in that case was not a current patient of the clinic.  The owner would not have a valid claim against the clinic in that case.

The decision of whether to accept an animal as a patient is at the sole discretion of a veterinarian.  This rule is set forth in Article II.E. of the the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association, which applies to all veterinarians in the United States.  The Texas Rules of Professional Conduct for veterinarians codifies that rule for vets practicing in Texas.  Therefore, even in emergency situations, vets do not have to take your horse if, for example, you cannot pay for the treatment or they simply do not have time to treat your horse.

For a vet to be potentially liable to a horse owner for injury or death of their horse, a veterinarian-client-patient relationship (VCPR) must first exist.  The VCPR is established when all of the following conditions are met:

Continue Reading Does a Veterinarian Have to Treat Your Horse in an Emergency?

"Absolute insurer rules" and "trainer liability rules," common in horse racing and other equine sports, presume that trainers are responsible when their horses test positive for illegal substances.  In effect, the rules make trainers guilty unless proven innocent.

The effect of this presumption is to shift the burden of proof from the governing body to the trainer, who must prove innocence by showing  that he or she did not negligently administer a prohibited substance to the horse or did not negligently allow someone else to interfere with the horse.  These rules can result in the imposition of a penalty against the trainer and/or the horse’s owner without actual proof of guilt.

Courts have uniformly upheld the absolute insurer rules, despite the fact that they appear to violate the due process of law.

Continue Reading Race Horse Trainers “Guilty Until Proven Innocent”