A courtroom re-enactment played a crucial role in R. Clive Markland’s successful defense of Exxon Mobil Corp. in a recent trial in which the plaintiffs alleged a sink in the women’s restroom at a company-owned gas station caused an injury.
Markland won the premises liability and negligence suit at a challenging time for oil companies in the court of public opinion. With $4-a-gallon gas prices not uncommon these days, he made sure to ask potential jurors during voir dire about possible biases against Exxon, says Markland, a partner in Houston’s Powers & Frost.
On June 20, 61st District Judge Alfred H. Bennett of Houston signed a take-nothing judgment for Exxon in Church, et al. v. Exxon Mobil Co. As alleged in their May 23 fourth amended petition, the plaintiffs — Catherine Church and her parents — had sought $1 million in damages for an Achilles tendon injury Church sustained when the sink in the women’s restroom at an Exxon-owned gas station fell on her. The plaintiffs alleged Church was taken by ambulance to an emergency room and she needed two surgeries.
In July 16, 2010, answer, Exxon denied the allegations and alleged that the acts and omissions of others had caused Church’s injuries.
During a four-day trial, Markland says he called an expert witness to the stand who used an actual sink to re-enact the amount of force it would take for a sink similar to the one in the gas station restroom to drop from the wall and injure someone. Markland says the expert’s testimony showed that merely leaning on the sink, as the plaintiff alleged she had done, could not have caused it to fall from the wall.
On May 26, the jury sided with Exxon and issued a take-nothing verdict.
Markland believes the sink re-enactment was important to the case. “I asked the jury not to be persuaded by bias or sympathy and to evaluate the actual liabilities,” Markland says, adding that deliberations took less than an hour.
The plaintiffs’ lawyer Bradford N. Oesch of Houston’s Bradford N. Oesch PC says the win was “huge for the defense,” and notes Markland is a good lawyer. Oesch says the defense expert mesmerized the jury with his re-enactment, which took jurors down a “rabbit trail” and caused them to disregard significant evidence, such as the plaintiffs’ allegation that the sink was not anchored to the wall.
Oesch notes that the sinks in the restrooms jurors used at the courthouse also are not anchored to the wall, so they may have concluded if that’s good enough for the halls of justice, it’s good enough for a gas station restroom.
Oesch says he plans to file a motion for a new trial and an appeal.
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