CHANGES IN THE 2010 PATTERN JURY CHARGES

HONORABLE JEFF BROWN 14th Court Of Appeals

J. BRETT BUSBY

Bracewell & Giuliani

HONORABLE TRACY CHRISTOPHER 14th Court Of Appeals

JEFFREY S. LEVINGER Hankinson Levinger LLP

State Bar of Texas 24TH ANNUAL ADVANCED

CIVIL APPELLATE PRACTICE COURSE September 2-3, 2010

Austin

CHAPTER 4

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Tracy Christopher Justice, 14th Court of Appeals 1307 San Jacinto, 11th Floor

Houston, TX 77002 (713) 655-2800

Professional Experience: 2009 to present Justice, 14th Court of Appeals Harris County, TX Member of a nine member intermediate court of appeals with jurisdiction over civil and criminal appeals in a ten county area. 1995 – 2009 Judge, 295th Civil District Court Harris County, TX Judge, General Civil Docket. Region 2, Rule 11 judge, Baycol cases. Regions 4 & 5, Rule 11 judge, Oil and Gas tax cases. Statewide Rule 13 judge, silica cases. 1986-1994 Susman Godfrey Houston, TX Prepared and tried commercial lawsuits for the plaintiff and the defense. Briefed and argued cases before the Texas appellate courts. 1981-1986 Vinson & Elkins Houston, TX Prepared and tried personal injury lawsuits primarily for the defense. Briefed and argued cases before the Fifth Circuit. Education: 1978-1981 University of Texas School of Law Austin, TX J.D. with honors 1974-1978 University of Notre Dame South Bend, IN B.A. in Economics, with honors Awards, Certifications and Committees: 2001 Trial Judge of the Year, Texas Association of Civil Trial and Appellate Specialists Board Certified in Civil Trial Law by the Texas Board of Legal Specialization Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization Supreme Court Advisory Committee 2003-2011 Pattern Jury Charge Committee 2004-2010, Chair of Oversight 2007-2010 Houston Bar Life Fellow and Texas Bar Fellow College of the State Bar Administrative Judge, Civil Trial Division 2002-2003, 2009

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Justice Jeff Brown

Fourteenth Court of Appeals 1307 San Jacinto Street, 11th Floor

Houston, Texas 77002

Jeff Brown was appointed to the Fourteenth Court of Appeals by Governor Rick Perry in December 2007 and won

election to the same seat in 2008. Before taking the appellate bench, he served for six years as judge of the 55th

District Court in Harris County. He has been consistently one of the highest ranked judges in the Houston Bar

Association’s judicial-evaluation poll.

Jeff is board-certified in civil trial law by the Texas Board of Legal Specialization. Before becoming a judge, he

practiced at Baker Botts, trying jury cases throughout Southeast Texas. Before joining Baker Botts, he was a briefing

attorney to Justices Jack Hightower and Greg Abbott on the Texas Supreme Court.

He earned his bachelor’s degree in English from the University of Texas and his law degree with high honors from

the University of Houston. While in law school he served as chief note & comment editor of the Houston Law

Review.

In 2006, the Texas Young Lawyers Association named Jeff Outstanding Young Lawyer of Texas. Jeff has been

active in state and local bar activities, including service as judicial liaison to the Houston Young Lawyers

Association, chairman of HYLA’s Non-Profit Law Committee, co-chairman of the Houston Bar Association’s John

J. Eikenburg Law Week Fun Run and as vice-chairman of TYLA’s National Trial Competition. He has served on the

boards of directors of the Texas Lyceum, the Houston Law Review, the University of Houston Law Alumni

Association, the Texas Supreme Court Historical Society, the Texas Center for the Judiciary, and the Christian

Community Service Center.

An Eagle Scout, Jeff served on the Sam Houston Area Boy Scouts’ Urban Scouting Committee, a program dedicated

to bringing Scouting’s values to inner-city young men. He is committee chairman of Cub Scout Pack 455, assistant

scoutmaster of Boy Scout Troop 222, has coached baseball, soccer, and flag-football, and often teaches Sunday

school. He also volunteered for Operation Compassion, serving food to Katrina evacuees in 2005. The Texas Jaycees

named him one of the Five Outstanding Young Texans of 2008.

Jeff has been an adjunct professor at the University of Houston Law Center and is a member of the State Bar’s

Pattern Jury Charge Committee. He also serves on the editorial board of the The Advocate, the quarterly journal of

the State Bar’s Litigation Section. In 2008, he was elected to the American Law Institute. He has served on the

faculty of the National Judicial College.

Jeff and his wife, Susannah, a schoolteacher, live in southwest Houston with their three children, Kathleen, Rob and

Gus. They are active members of Bellaire United Methodist Church.

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JEFFREY S. LEVINGER HANKINSON LEVINGER LLP 750 North St. Paul St., Suite 1800

Dallas, Texas 75201 Telephone: (214) 754-9190

jlevinger@hanklev.com

EDUCATION Dartmouth College (B.A., 1979) Magna cum laude; Phi Beta Kappa. University of Virginia (J.D., 1982) Editorial Board, Virginia Law Review, 1980-1982; Order of the Coif JUDICIAL CLERKSHIP Law Clerk to the Honorable Patrick E. Higginbotham, United States Court of Appeals for the Fifth Circuit (1982-1983) PROFESSIONAL ACTIVITIES AND HONORS Partner, Hankinson Levinger LLP Partner, Carrington, Coleman, Sloman & Blumenthal, L.L.P. (1990-2008) Associate, Carrington, Coleman, Sloman & Blumenthal, L.L.P. (1983-1989) Member, American Law Institute Master, Wm. “Mac” Taylor American Inn of Court Fellow, Texas Bar Foundation and Dallas Bar Foundation Chairman, State Bar of Texas Committee on Pattern Jury Charges (Malpractice, Premises, Products) Treasurer, State Bar of Texas Appellate Section Former Council member, State Bar of Texas Appellate Section (2005-2008) Former Chairman, Civil Appellate Law Advisory Commission for the Texas Board of Legal Specialization Former Chairman, Dallas Bar Association Appellate Law Section (2007) Named in Best Lawyers in America in appellate law and commercial litigation (2008-2010) Named five times by D Magazine as one of the “Best Lawyers in Dallas” in appellate law Named by Texas Monthly as one of Texas’s top 100 attorneys BOARD CERTIFICATION Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization (1989 - Present) SELECTED PUBLICATIONS AND PRESENTATIONS The Court’s Charge and the Implications of Casteel, presented at the State Bar of Texas course on

Evaluating, Negotiating, Proving and Collecting Damages and Attorneys’ Fees (February 2009) Pro Bono Initiatives, presented at the 22nd Annual State Bar of Texas Advanced Civil Appellate Practice

Course (September 2008) War Stories: A View From the Litigation Trenches, panel discussion, presented at the 17th Annual Dallas

Bar Association Bench Bar Conference (September 2008) Effective Courtroom Written and Oral Communications, panel discussion, presented at the 17th Annual

Dallas Bar Association Bench Bar Conference (September 2008) How to Not Screw Up Your Case for Appeal, presented at the State Bar of Texas Advanced Personal Injury

Law Course (July, August 2008) Perfecting the Appeal and Securing the Record, presented at the 21st Annual Advanced Civil Appellate

Practice Course (September 2007) Creative Interpretations of State Farm v. Campbell, presented at the 15th Annual Conference on State and

Federal Appeals (June 2005) Pondering Punitives: Issues Arising at Trial and on Appeal, presented at the 18th Annual State Bar of Texas

Advanced Civil Appellate Practice Course (September 2004) Jury Charge Under HB4 (co-author), presented at the State Bar of Texas Advanced Civil Trial Course

(August 2004) PJC Volume 3 (co-author and co-presenter), presented at the State Bar of Texas Advanced Personal Injury

Law Course (July, August 2004)

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What in the World Does the Charge Look Like After House Bill 4?, presented at the State Bar of Texas course on Real Damages after HB 4 (January, February 2004)

Selected Topics in Appealing Actual and Punitive Damages, presented at the 17th Annual State Bar of Texas Advanced Civil Appellate Practice Course (September 2003)

Pondering Punitives: Issues Arising at Trial and on Appeal, presented at the State Bar of Texas Advanced Personal Injury Law Course (June, July, August 2003) FRAP Amendments and TRAPs in the FRAPs, presented at the 13th Annual Conference on State and Federal Appeals (June 2003) Business Litigation panel discussion, presented at the 16th Annual State Bar of Texas Advanced Civil Appellate Practice Course (September 2002) Co Author, Fifth Circuit Trial Practice Guide (1998)

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J. Brett Busby BRACEWELL & GIULIANI LLP

711 Louisiana Street, Suite 2300 Houston, Texas 77002

Tel. (713) 221-1160 • Fax (713) 222-3202 brett.busby@bgllp.com

Education: A.B., summa cum laude, Duke University, 1995

Phi Beta Kappa J.D., Columbia University School of Law, 1998

James Kent Scholar; Young B. Smith Torts Prize Columbia Journal of Transnational Law, Head Articles Editor

Employment: Bracewell & Giuliani LLP, March 2008 to present Partner, appellate and trial litigation Mayer Brown LLP, 2003-2008 Hogan Dubose & Townsend, L.L.P., 2000-2003 Law Clerk to the Hon. Byron R. White, Associate Justice (Ret.), and the Hon. John Paul Stevens, Associate

Justice, U.S. Supreme Court, 1999-2000 Law Clerk to the Hon. Gerald Tjoflat, U.S. Court of Appeals, Eleventh Circuit, 1998-99

Selected Publications/Speeches: “2008 Year in Review: Appellate Law,” 72 Tex. B.J. 34 (2009) “Considering Supreme Court Review,” Federal Appellate Practice (BNA 2008) “Punitive Damages in an Age of Tort Reform,” U.T. Conference on State and Federal Appeals, May 2008 “Punitive Damages: Charge, Constitutionality, and Caps,” Advanced Civil Appellate Practice Course, State

Bar of Texas, September 2007 “U.S. Supreme Court Trends,” Advanced Civil Appellate Practice Course, State Bar of Texas, September

2006 Fifth Circuit Editor, ABA Appellate Practice Journal, Winter 2005-present “United States Supreme Court Update,” Appellate Advocate, State Bar of Texas, 2006 (4 issues), 2005 (4

issues), and 2004 (3 issues) “Perfecting the Appeal in Texas and Federal Courts,” Advanced Civil Appellate Practice Course: Boot

Camp, State Bar of Texas, September 2005 “Review of Decisions by the Supreme Court of the United States That Impact Texas Civil Courts,” Harris

County Judicial Education Conference, August 2006, August 2005 “Roadmap of Texas and Federal Standards of Review,” Advanced Civil Appellate Practice Course: Boot

Camp, State Bar of Texas, September 2004

Professional Activities & Recognitions: Board Certified in Civil Appellate Law, Texas Board of Legal Specialization. Director, Texas Young Lawyers Association (2008-2010). Member, State Bar of Texas Committee on Pattern Jury Charges (Business, Consumer, Insurance & Employment), 2005-present. Member, Houston (Appellate Practice Section 2000-present; Vice Chair, 2010-present), Texas (Appellate Section 2001-present; Council, 2008-present), and American Bar Associations. Fellow, Texas and Houston Bar Foundations.

Recognized as a leading appellate litigator in Texas (Band 3) by Chambers USA (2009-10), and a “Super Lawyer” in the field of appellate litigation by Texas Monthly (2009-10).

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TABLE OF CONTENTS

BIOGRAPHY ................................................................................................................................................................. ii 

I.  OVERSIGHT'S FOCUS ......................................................................................................................................... 1 

II.  ISSUES FOR ALL VOLUMES .............................................................................................................................. 1 

III.  VOLUME 1 — GREEN COVER ........................................................................................................................... 1 A.  Revisions to Chapters 8-11 (the damages chapters) ........................................................................................ 1 B.  Revisions to Chapters 6 and 7 ......................................................................................................................... 2 C.  New Limitations PJC ....................................................................................................................................... 3 

IV.  VOLUME 3 — RED COVER ................................................................................................................................ 4 A.  Revisions to the Malpractice Chapter .............................................................................................................. 4 B.  Revisions to the Premises Chapter .................................................................................................................. 5 C.  Revisions to the Products Chapter ................................................................................................................... 5 D.  Revisions to the Damages Chapter .................................................................................................................. 6 

V.  VOLUME 4 — BLUE COVER .............................................................................................................................. 6 A.  Revisions to the Fraud Chapter: New Questions and Instructions on Texas Securities Act Violations ...................................................................................................................... 6 B.  Revisions to the Fiduciary Duty Chapter ........................................................................................................ 7 C.  Revisions to the Tortious Interference Chapter ............................................................................................... 8 D.  Revisions to the Civil Conspiracy Chapter...................................................................................................... 8 

VI.  NEW ISSUES ......................................................................................................................................................... 8 

VII. JUDICIAL TIPS ...................................................................................................................................................... 8 

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CHANGES IN THE 2010 PATTERN JURY CHARGES

There will be a number of significant changes to

the 2010 volumes of the Pattern Jury Charges. This paper focuses on volumes 1, 3, and 4 dealing with civil/personal injury litigation (the green, blue, and red covers). The exact wording of the changes noted in this paper may change by final publication. All material quoted from the Pattern Jury Charges is copyrighted by the State Bar of Texas and used with permission of the Bar. I. OVERSIGHT'S FOCUS

Each volume of the Pattern Jury Charge has a separate committee that works on the volume. In addition, there is an Oversight Committee for all of the Pattern Jury Charges. That Committee generally oversees all of the volumes. Oversight has focused on improving the understandability of our jury charges, and on eliminating the inconsistencies between the volumes. The current chair is Justice Tracy Christopher, Fourteenth Court of Appeals.

The committee prepared a new optional instruction for judges to give their juries on social media issues. The instruction reminds the jury not to do independent research through the internet and not to discuss the case on the internet or through any electronic means until after the trial.

The committee revised the instruction in the Family Law Volume on preservation of error and voted to include a similar instruction in the other volumes. A subcommittee, consisting of representatives from each of the volumes, will do further work on the instruction before it will be included in all volumes.

The committee discussed changing the definition of proximate cause in all volumes to include the “substantial factor” language from Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). All volumes currently discuss Ledesma in a “caveat” under the proximate cause definition and supply a revised definition of proximate cause. Many members of all committees believe that the revised definition should be the preferred definition. An equal number of committee members believe that the treatment of the issue in all volumes is adequate until we have further guidance through case law. A motion to change the definition ended in a tie vote and no change was made.

The committee continued its oversight role; suggesting possible new issues for the individual volumes, reviewing new issues or instructions and working on consistency issues between the volumes.

II. ISSUES FOR ALL VOLUMES A number of changes apply to all three of the civil

litigation volumes. The same instruction is often repeated in the volumes.

1. Electronic technology. The PJC will include

an admonitory instruction to jurors about their use of electronic technology. This instruction was prompted by anecdotal accounts, both in and outside of Texas, about jurors improperly consulting the internet or communicating electronically during trials or in deliberations. Although various trial judges in Texas have used their own instructions about the use of electronic technology, the Committees thought it would be helpful to include a suggested form of instruction in the PJC. We anticipate that the Supreme Court will eventually amend TEX. R. CIV. P. 226a to include language admonishing jurors about their use of electronic technology.

2. New and independent cause. In the below-

the-line comments to the new and independent cause instructions, the Committees have added the phrase “unbroken by any new and independent cause” to the proximate cause definition. This corrects an inadvertent omission in the 2008 edition.

3. Punitive damages. The PJC will delete the

“[manager]” option to the list of ways in which gross negligence of an individual can be imputed to a corporation. This change was mandated by the Oversight Committee over the objection of many on the Green Volume Committee, who believe that it flies in the face of Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967). III. VOLUME 1 — GREEN COVER

The Green Volume covers general negligence and intentional personal torts. The chair of that committee is Brock Akers of Phillips & Akers, P.C. of Houston. A. Revisions to Chapters 8-11 (the damages

chapters) 1. Prefatory language. To several of the

damages questions in chapters 8-11 (PJC 8.2, 8.3, 8.4, 8.5, 9.2, 9.3, 9.4, 9.5, 10.2, 11.2, and 11.3), the Committee added the following sentence:

Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.

In each of the PJCs to which this language has been added, it follows this directive:

Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts,

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if any, in your answers because of the negligence, if any, of Paul Payne, Jr.

The new language should look familiar; it has appeared in other PJCs for some time (e.g., the “Parallel theories” instruction in the Blue Volume’s PJC 115.2).

1. Injuries of Minor Child. The Committee has proposed several changes to PJC 8.4, which is the damages question to be used in a case involving injuries to a minor child. The first change is to the basic question itself. The old version charged the jury with determining the cash award that “would fairly and reasonably compensate Paul Payne, Jr. for his injuries, if any,” that resulted from the occurrence in question. The new version instead seeks the award that “would provide fair and reasonable compensation for Paul Payne, Jr.’s injuries, if any.” The proposed comment accompanying this change explains it fairly plainly:

This question differs from prior versions as well as from most other damage questions in that it does not ask the jury to determine the amount that would “compensate Paul Payne, Jr. for his injuries, if any….” Because 8.4 includes elements of damage (e.g., loss of earning capacity and medical care expenses incurred prior to the age of majority) that reflect injuries to the minor, but that are not recoverable by the minor, the Committee felt that a revision was necessary to remove any reference to the person being compensated. Rather, a more accurate question, given the potentially differing rights to recovery, is one that asks the jury to value the injuries themselves, without regard to who is to be compensated for those injuries.

The Committee has also proposed changes to the individually listed damages elements set forth in PJC 8.4. The new version separates those damages that are incurred before the minor reaches majority, and those that in reasonable probability the minor will incur after turning 18. So “loss of earning capacity” as a damages element under PJC 8.4 is now divided into three parts: (1) “loss of earning capacity sustained in the past;” (2) “loss of earning capacity that, in reasonable probability, will be sustained from the time of trial until Paul Payne, Jr. reaches the age of eighteen year;” and (3) “loss of earning capacity that, in reasonable probability, will be sustained in the future after Paul Payne, Jr. reaches the age of eighteen years.” “Medical care expenses,” as an element of damages, is similarly divided into three parts. The Committee has proposed comments to PJC 8.4 explaining the reason for this change and instructions for how to submit the

elements when the child reaches majority before the case goes to trial.

2. Parents’ Loss of Services of Minor Child.

The Committee also added language to its comment following PJC 8.5 to aid the practitioner dealing with the parents’ loss of services of a minor child as a damages element. The new language follows:

Texas law permits a parent to recover damages for the loss of services of a minor child. The following types of services are examples from the case law: running errands, doing yard work, washing dishes, sweeping floors, mopping, dusting, washing windows, making minor repairs, cutting hay, feeding animals, washing laundry, performing farm work, shining shoes, ironing clothes, caddying, harvesting watermelons, and generally helping around the house. See., e.g., Green v. Hale, 590 S.W. 2d 231, 235-36 (Tex. Civ. App.—Tyler 1979, no writ); Gonzalez v. Hansen, 505 S.W.2d 613, 615 (Tex. Civ. App.—San Antonio 1974, no writ). “The monetary value of a child’s lost services is not akin to and cannot be measured with the mathematical precision of lost wages,” Pojar v. Cifre, 199 S.W.3d 317, 347 (Tex. App.—Corpus Christi 2006, pet. denied); but the plaintiff must present some evidence of the performance and value of lost services and must also establish that the injury at issue precludes performance of such services. Pojar, 199 S.W.3d at 347); Gonzalez, 505 S.W.2d at 615. 3. Exclusionary Instruction for Other Condition.

The Committee has suggested a rephrasing of PJC 8.7, an exclusionary instruction meant to prevent awards for conditions not caused by occurrence giving rise to the lawsuit. The old instruction charged the jury not to “include any amount any condition not resulting from the occurrence in question.” The proposed change—an attempt at clarification—instructs the jury not to “include any amount that did not result from the occurrence in question.”

B. Revisions to Chapters 6 and 7

1. “Or” and “and.” The Committee added an extra “or” to the Assault and Battery question in PJC 6.6 to clarify that the defendant need commit only one of three acts listed to be liable for assault. It now reads as follows:

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A person commits an assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Likewise, the Committee added a couple of extra “ands” to the Joint Enterprise question in PJC 7.11 to clarify that all of the listed elements must be satisfied for the question to be answered affirmatively. It now reads like this:

A “joint enterprise” exists if the persons concerned have (1) an agreement, either express or implied, with respect to the enterprise or endeavor; and (2) a common purpose; and (3) a community of pecuniary interest in [the common purpose of the enterprise], among the members [of the group]; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

These changes grew out of a project by the Oversight Committee, which included a survey of trial judges and a study with mock jurors. The Committee found that when “and” was used only between the last two elements in a list, mock jurors did not understand that they had to find that all of the elements were satisfied. Similar additions of “and” and “or” have been made in the other volumes.

2. Negligent Entrustment. In light of a recent

Texas Supreme Court opinion addressing liability for negligent entrustment, the Committee has proposed altering the comment to PJC 7.12 concerning proximate cause. The Comment in the 2008 volume provides that “[n]egligent entrustment is considered a proximate cause of the collision if the negligence of the driver to whom the vehicle was entrusted was a proximate cause of the collision.” The cases cited for this proposition are a Fourteenth Court of Appeals case from 1968 and a 1951 Texas Supreme Court case. The new comment, citing the new case, reads as follows:

Proximate cause of entrustor. Negligent entrustment is considered a proximate cause of the collision if the risk that caused the entrustment to be negligent caused the accident at issue. TXI Transportation Co., Inc. v. Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010) (neither the driver’s status as an illegal alien nor the fact that he had used a

fake Social Security number to obtain his commercial driver’s license was a proximate cause of the accident).

C. New Limitations PJC The biggest change proposed by the Green

Volume Committee is the addition of a new chapter on limitations. The Committee seeks to add this new PJC to address the situation that arises when a plaintiff files suit within the limitations period, but does not attain service on the defendant until after the statute has run. Sometimes trial courts can dispose of such questions on summary judgment, such as when it can be shown as a matter of law that the plaintiff was not diligent in seeking to effect service. But often such accusations are questions of fact. This PJC provides trial courts with a ready method to submit the issue to the jury hearing the merits of the case. The new PJC is fairly straightforward:

Did Paul Payne, or someone acting on his behalf, exercise diligence to have Don Davis served? The standard of diligence required is that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances. The duty to use diligence continues from the time suit was filed against Don Davis on [date] until Don Davis was served on [date]. Answer: “Yes” or “No.” Answer: ___________

COMMENT

When to use. The above question and instruction should be used when the plaintiff filed a petition within the applicable limitations period but did not serve the defendant until after limitations expired, the defendant has pleaded the affirmative defense of limitations, and the plaintiff has offered evidence of due diligence in effecting service. The judge will insert the appropriate dates in the brackets contained in the above instruction. If the petition is filed within the applicable limitations period, service outside the limitations period may still be valid if the plaintiff exercises due diligence in procuring service on the defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (citing Zale Corp. v.

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Rosenbaum, 520 S.W.2d 889, 890) (Tex. 1975) (per curiam). When service is diligently effected after limitations has expired, the date of service will relate back to the date of filing. Proulx v. Wells, 235 S.W.3d 213, 215–216 (Tex. 2007) (per curiam); Gant, 786 S.W.2d at 260. When a defendant has pleaded the affirmative defense of limitations and has shown that service was not timely, the burden shifts to the plaintiff to prove diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 215-16. Whether a plaintiff exercised due diligence in obtaining service on the defendant, so as to allow the date of service to relate back to the date of filing of suit for limitation purposes, is ordinarily a question of fact. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216; Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App.—Dallas 2009, n.p.h.).

IV. VOLUME 3 — RED COVER The Red Volume covers malpractice, premises

and products. The chair of that committee is Jeff Levinger of Hankinson Levinger LLP in Dallas.

A. Revisions to the Malpractice Chapter

1. Lost chance of survival. Based on the Texas Supreme Court’s opinion in Columbia Rio Grande Healthcare v. Hawley, 284 S.W.3d 851, 860-61 (Tex. 2009), the Committee has included a comment and a proposed instruction in PJC 50.1-.3 about the “lost chance of survival.” The comment explains that “an instruction for lost chance of survival should be submitted only when the plaintiff suffers from a particular medical condition, such as cancer, that places the proximate cause of the plaintiff’s death or impending death into question.” The comment further explains that “when evidence demonstrates that such a medical condition pre-exists the alleged negligence of the defendant, and at the time of the alleged negligence, the medical condition resulted in the plaintiff having a 50% or less chance of survival, the [lost chance of survival] instruction is proper.” The proposed instruction states:

You are instructed that Paul Payne must have had a greater than fifty percent (50%) chance of survival if reasonable medical care had been provided on or around [the time of the alleged negligence] for the negligence of Dr. Davis to be a proximate cause of the [injury] to Paul Payne.

This comment and instruction were the subject of extended discussion over many months, and underwent a number of redrafts and revisions.

2. Reasonable care. PJC 50.1 will add a

comment suggesting to the bench and bar that it may be appropriate in certain malpractice cases to use the word “reasonable” instead of “ordinary” to describe the applicable standard of care. Although the phrase “ordinary care” has been used in the PJC for many years, the Committee was concerned that it had no precedential support and tended to suggest a lower and more forgiving standard of care—i.e., that the defendant only had to be “ordinary.” The Committee’s comment about using “reasonable” instead of “ordinary” will remain “below the line” unless and until courts hold that the standard of care in malpractice cases turns on whether the defendant exercised reasonable instead of ordinary care.

3. Responsible third party. PJC 51.2, 61.2,

66.2, and 71.2 will add a sentence to the current “responsible third party” comment informing practitioners that at least one Texas court has held that it is “only upon the trial court’s granting of a motion for leave to designate a person as a responsible third party that the designation becomes effective.” Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751, 754-55 (Tex. App.—San Antonio 2009, pet. denied); see also Ruiz v. Guerra, 293 S.W.3d 706, 714-15 (Tex. App.—San Antonio 2009, no pet.).

4. Emergency care. On the subject of

emergency care, the 2010 edition will delete the comment about “when to omit Question 2” that is currently in PJC 51.18A, 51.18B, and 51.18C. After considerable discussion, the Committee concluded that this comment was confusing and potentially misleading, particularly in suggesting that the emergency care question presented an “affirmative defense.” The Committee also added a comment to PJC 51.18C explaining that the four “relevant factors” regarding willfulness or wantonness listed in the question should be omitted if the medical care or treatment meets any of the three characteristics specified in TEX. CIV. PRAC. & REM. CODE § 74.154(b)(1)-(3). Thus, if the medical care or treatment: (1) occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency; (2) is unrelated to the original medical emergency; or (3) is related to an emergency caused in whole or in part by the negligence of the defendant, then the jury should not be instructed about the four factors that bear on whether the defendant may have rendered the medical care “with willful or wanton negligence.”

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5. Ordinary care. In PJC 60.1 (Nonmedical Professional’s Degree of Care; Proximate Cause), the definition of ordinary care will be slightly revised to refer to the degree of care that an ordinary person “could use”—rather than “would use”—under the same or similar circumstances. This revision will make the proposed question consistent with the comment and the case law.

B. Revisions to the Premises Chapter

1. Right to control. The Committee continually discusses, debates, and revises the “right to control” question and comment in PJC 66.3. The 2010 edition is no exception. Based on a comment from a practitioner, the Committee has added a “caveat” noting the distinction between a contractual retention of the right to control and the actual exercise of control, and explaining how this distinction may affect the submission or phrasing of a right to control question. The Committee has also added a note explaining that TEX. CIV. PRAC. & REM. CODE § 95.003 is the source of the phrase “some control” that is included in the proposed question.

2. Easement holders. PJC 66.4, 66.5, 66.6, and

66.9 will add a comment explaining how the status of a plaintiff (as invitee, licensee, or trespasser) should be determined when the defendant is either an exclusive easement holder or a non-exclusive easement holder of the premises in question.

C. Revisions to the Products Chapter

1. Negligence in products cases. Based on requests from both the bench and bar, the Committee is including in the 2010 edition a question showing how to submit a negligence theory in a products liability case. The accompanying comment explains that a negligence theory in a products case may be premised on a negligent design, negligent manufacturing, or negligent marketing; as a result, the question incorporates the appropriate definitions from those theories, in addition to the traditional definitions of “negligence,” “ordinary care," and “proximate cause.” The Committee has also included a comment in this and other PJC sections cautioning against the submission of strict liability, negligence, and implied warranty theories in the same case, because the risk of conflicting answers may necessitate a new trial.

2. Negligent undertaking. Based on a comment

the Committee received from a practitioner, the Committee revised the existing question and comment on negligent undertaking (PJC 71.7). The existing question defines element 3 of negligent undertaking as follows:

3. either [someone] relied on Don Davis’s performance or Don Davis’s performance increased Paul Payne’s risk of harm.

The existing comment then discusses the use of “someone”—i.e., to cover situations in which “[t]he person relying on the performance of the conduct in question [is] not the plaintiff or anyone in privity with the plaintiff.”

The revised question will redefine element 3 to state:

3. either [Paul Payne] relied on Don Davis’s performance or Don Davis’s performance increased Paul Payne’s risk of harm.

The revised comment will replace the previous “use of someone” comment, and instead will provide a “caveat to paragraph 3” of the question. This caveat will discuss the two types of negligent undertaking that will dictate whether to use the name of the plaintiff or someone else in the paragraph. The plaintiff’s name should be used if the negligent undertaking involves the rendition of services to the plaintiff. See RESTATEMENT (SECOND) OF TORTS § 323. But the name of a third party should be used if the negligent undertaking involves the rendition of services to another, which the defendant should recognize as necessary for the protection of a third party. See RESTATEMENT (SECOND) OF TORTS § 323A. The second type of negligent undertaking was involved in Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex. 2000), which is the case that originally gave rise to the first version of PJC 71.7.

3. Breach of warranty. During the Committee’s routine review of PJC 71.9 (breach of implied warranty of merchantability under TEX. UCC § 2.314(b)(1)-(2), (4)-(6)), it discovered that the “conditioning” instruction between the first and second question was wrong because it erroneously instructed the jury to answer question two (on proximate cause) only if the answer to question one (on merchantability) was “yes,” (instead of “no,” as it should have read). That discovery, in turn, revealed further deficiencies in the existing version of PJC 71.9. As a result, the Committee completely rewrote PJC 71.9, and then made substantial revisions to the related PJC 71.8 (breach of implied warranty of merchantability under TEX. UCC § 2.314(b)(3)) and PJC 71.10 (breach of implied warranty of fitness for a particular purpose). The revised questions in PJC 71.8, 71.9, and 71.10 faithfully track the elements of the UCC and hopefully will be more useful to the bench and bar than the previous versions.

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D. Revisions to the Damages Chapter 1. Damages for injury to a minor. The

Committee modified the question and comments to PJC 80.5 (personal injury damages — injury of minor child) to reflect the fact that personal injury damages generally are not recoverable by a minor. Thus, the revised question asks the jury to value the injuries themselves, without regard to who is ultimately going to be compensated for those injuries. In addition, revised PJC 80.5 includes several subparts for loss of earnings and medical care expenses that can be used when the minor turns 18 before the time of trial. Finally, PJC 80.6 (personal injury damages — parents’ loss of services of minor child) expands the existing comment that describes the types of services by a minor for which the parents may recover damages.

2. Economic damages in legal malpractice

cases. Inspired by the Blue Volume’s effort to delineate the types of damages that are available in DTPA and breach of contract cases, the Red Volume is adding a new PJC that gives several hypothetical examples of how instructions may be worded to submit various measures of damages in legal malpractice cases. These examples include:

Sample A—Value of the original suit The amount, if any, that Paul Payne would have recovered and collected if his original suit against Tom Taylor had been properly prosecuted by Don Davis. Sample B—Loss to the value of the original suit The difference, if any, between the amount that Paul Payne [recovered] [settled for] and collected in his original suit against Tom Taylor and the amount he would have [recovered] [settled for] and collected if the original suit had been properly prosecuted by Don Davis. Sample C—The increase in damages assessed against Paul Payne in the original suit The increase, if any, in damages assessed against Paul Payne in his original suit with Tom Taylor caused by the failure of Don Davis to properly defend the lawsuit. Sample D—Additional attorney’s fees incurred Reasonable and necessary attorney’s fees incurred by Paul Payne for legal services proximately caused by the negligence of Don Davis. Do not include any attorney’s fees

incurred for the prosecution of this claim against Don Davis.

The accompanying comments provide the legal support for these sample instructions, including the Texas Supreme Court’s recent opinion in Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Res. Corp., 299 S.W.3d 106, 113-14 (Tex. 2009). The Committee invites the bench and bar to comment on these samples and to provide any additional ones that may be appropriate for inclusion in the next edition.

V. VOLUME 4 — BLUE COVER

The Blue Volume covers business, consumer, insurance and employment issues. The chair of the committee is Mark Kincaid of Kincaid & Horton, L.L.P. in Austin.

A. Revisions to the Fraud Chapter: New

Questions and Instructions on Texas Securities Act Violations The most significant change by the Blue Volume

Committee is the addition of new questions and instructions regarding violations of the Texas Securities Act. The Committee concluded that the law had become sufficiently settled on many issues under the Securities Act to allow reliable patterns to be drafted. These new pattern questions and instructions will appear in the fraud chapter as PJC 105.12 through 105.18.

1. Liability for factual misrepresentation or

omission. The main question and instruction regarding whether a factual misrepresentation or omission violates the Texas Securities Act is PJC 105.12. That question and instruction, as well as selected portions of the comment, are reprinted below. This section also contains an instruction regarding when a prediction, projection, or other statement of belief constitutes an untrue statement of material fact (PJC 105.13), as well as questions submitting the defenses that the plaintiff knew of the untruth or omission (PJC 105.14) or that the defendant did not know of it (PJC 105.15).

PJC 105.12

Did Don Davis commit a securities law violation against Paul Payne? A securities law violation occurs when— 1. a person [sells or offers to sell / buys or

offers to buy] a security by means of either a. an untrue statement of a material

fact; or

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b. an omission to state a material fact necessary to make the statements made, in light of the circumstances under which they are made, not misleading; and

2. the other person [purchases the security from / sells the security to] him; and

3. the other person suffers injury.

A fact is “material” if there is a substantial likelihood that a reasonable investor would consider it important in deciding whether to [purchase / sell] a security, because it would significantly alter the total mix of information made available.

COMMENT (selected portions)

When to use. PJC 105.12 is based on Tex. Rev. Civ. Stat. Ann. art. 581-33A(2) and 33B, which applies only to fraud in a transaction involving the sale or purchase of a security. In a case involving an alleged registration violation of Tex. Rev. Civ. Stat. Ann. art. 581-33A(1) or 33C, parts a and b of this instruction should be modified as necessary to reflect the statutory elements of such a violation. Sells or offers to sell. The Texas Securities Act broadly defines “sell,” as well as “sale” and “offer for sale,” in Tex. Rev. Civ. Stat. Ann. art. 581-4(E). See In re Enron Corp. Secs., Deriv. & ERISA Litig., 258 F. Supp. 2d 586, 603-04 (S.D. Tex. 2003). If there is a dispute about whether a sale occurred or an offer was made, additional instructions may be necessary. If the person who allegedly committed fraud sold the security, then “sells or offers to sell” should be used in part a of this instruction, and “purchases the security from” should be used in part b. If the person who allegedly committed fraud bought the security, then “buys or offers to buy” should be used in part a, and “sells the security to” should be used in part b. The italicized word him in part b may be replaced with “her” or “it” depending on the defendant that allegedly committed the violation. Security. … Whether something constitutes a “security” under the Texas Securities Act

will usually be a question of law for the court. See Grotjohn Precise Connexiones Int’l, S.A. v. JEM Fin., Inc., 12 S.W.3d 859, 868; Campbell v. Payne, 894 S.W.2d 411, 417-18 (Tex. App.—Amarillo 1995, pet. denied). However, in some cases there may be predicate factual disputes for the jury to resolve regarding whether something is a security under the TSA. For example, the TSA lists an “investment contract” as a security, but the definition of “investment contract” includes multiple elements that may raise a factual dispute. See Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 662 (Tex. App.—El Paso 1992, no writ). Damages. PJC 115.19, which addresses direct damages in fraud cases, may be modified to submit damages resulting from a securities law violation. The comment to PJC 115.19 explains the necessary modifications and also addresses the remedy of rescission. 2. Liability as a control person or aider. In

addition to the primary liability discussed above, the Texas Securities Act imposes liability on those who control a party that violates the Act or aid in a violation. The Committee decided that the law of control person liability was not sufficiently clear to allow a pattern question to be drafted, so it has provided an extensive comment instead (PJC 105.16). The comment identifies the different tests for control person liability adopted by Texas courts. The Committee also drafted a question that submits the defendant's lack of knowledge defense to control person liability (PJC 105.17).

Finally, the Committee included a question and instruction on liability for materially aiding a securities law violation (PJC 105.18).

B. Revisions to the Fiduciary Duty Chapter

PJC 104.1 submits the question whether an informal fiduciary relationship exists but does not address formal fiduciary relationships. The Committee added a comment stating that a question should also be submitted when the existence of a formal fiduciary relationship is disputed.

PJC 104.2 places the burden on the fiduciary to prove that there was no breach of fiduciary duty. It formerly included a comment advising that the instruction should be modified in cases where the burden does not shift to the fiduciary. To ensure that the proper modifications are made, the Committee has replaced this comment with a new question and instruction (PJC 104.3) that places the burden on the

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plaintiff to prove a breach of fiduciary duty in appropriate cases.

C. Revisions to the Tortious Interference Chapter

PJC 106.3 submits the justification defense to a tortious interference claim. The question previously asked: “Did Don Davis interfere because he had a good-faith belief that he had a right to do so?” To make clear that the trial court decides whether a legal right is colorable, while the jury finds whether the defendant had a good-faith belief in the right, the Committee rewrote the question to ask: “Did Don Davis have a good-faith belief that [describe colorable legal right]?” This new question also avoids asking the jury to consider the defendant's motive for interfering, which the Supreme Court has held is irrelevant. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex. 1996).

D. Revisions to the Civil Conspiracy Chapter

Based on a recent case from the Austin Court of Appeals, the Committee added a comment to the conspiracy question (PJC 109.1) suggesting that when there is evidence of divisible damages from multiple underlying torts, and there is a dispute about which torts were the subject of a conspiracy, the court should consider asking the jury to find the torts that were the subject of any conspiracy. See THPD, Inc. v. Continental Imports, Inc., 206 S.W.3d 593, 604-05 (Tex. App.–Austin 2008, no pet.).

VI. NEW ISSUES

It takes an enormous amount of time and energy to create new issues. Some areas of the law are still unclear as to what exactly would be asked of the jury. Some areas of law arise too infrequently and do not merit the time needed for a pattern jury change. Some areas of the law are so fact specific that a pattern jury charge is elusive.

Some potential areas for new issues that may be applicable to a number of cases are: spoliation, statute of limitations and due diligence issues, and seat belt non-usage. One or more of the committees may consider these new issues in the coming year. The paid or incurred subject continues to vex practitioners and judges without a clear solution.

Feel free to write the chairs of the various committees if you have ideas for new issues. If you have drafted a unique jury charge, send it to the chairs. This might be the starting point for getting a new issue in a PJC.

VII. JUDICIAL TIPS

Consult the PJCs early in the development of your cases. They can be a blueprint for your original petition. And they can pinpoint defenses that you need

to plead. But be aware of any new case law or statutory law in your area.

Know the elements of damage that you must prove and know the type of damages that follow each cause of action. This can be tricky in non-personal injury cases.

Review the other volumes to see if any instructions are applicable to your case. For example, mitigation of damages in Volume 1 is limited to the treatment of personal injuries. See PJC 8.9. A more generic mitigation instruction can be found in Volume 4 and could be useful for other elements of damages. See PJC 110.7. If you have a cause of action where the discovery rule is applicable and need a statute of limitations issue, Volume 4 is the only volume with that issue. See PJC 102.23.