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CONTRACTS Defendant claimed change in proposed contract meant no contract to breach A private equity firm was hit with an $11 million verdict for breaching a confidentiality and non-circumvent agreement with a former customer. Plaintiff Nova Capital wished to purchase two businesses, but was unable to secure financing from defendant Finova Capital, which then helped another purchaser buy the businesses. Finova maintained that there was no confidentiality or noncircumvent agreement because Finova had changed the duration of the agreement proposed by Nova to 12 months from 24 months and Nova had never accepted the change. On Feb. 18, the Dallas County jury found that Nova had accepted the language in question and that Finova breached the contract. The defense intends to move for judgment notwithstanding the verdict because the jury found that Nova only learned that it had been injured by Finova after the bankruptcy bar date. Nova Capital v. Finova Capital, No. 01-08870-B Court: 44th District Court, Dallas County Plaintiffs’ Attorney(s): Michael K. Hurst, Mary A. Goodrich and Hilaree Casada, Godwin Gruber, Dallas Defense Attorney(s): Scott R. Hoyt and Aaron Miller, Gibson, Dunn & Crutcher, Dallas; Richard L. Smith, Jr., Quilling, Selander, Cummiskey & Lownds, Dallas; Michael R. Buchanan, David Kitner and Austin Jones, Strasburger & Price, Dallas ENVIRONMENTAL LAW Pipeline ruptured, spilling gasoline into creek that feeds Dallas water supply After 13 days of a jury trial, the city of Dallas accepted $8.25 million from Explorer Pipeline to settle the city’s claims over a pipeline leak that spilled reformulated gasoline into a creek that feeds Lake Tawakoni, which supplied 30 percent of the city’s water. After the leak, when levels of MTBE (methyl tertiary-butyl ether, a suspected carcinogen) in the lake were very high, the city built a connection to another lake for water and sued to recover the costs of building the emergency connection. The city alleged that Explorer knew that its pipeline was cracking and corroding before it ruptured. Explorer contended that state regulators said the water was safe before Dallas decided to build the emergency connection and that MTBE levels in other Dallas lakes and in Lake Tawakoni were higher before the gasoline spill than after the spill. The settlement was reached on Feb. 18. City of Dallas v. Explorer Pipeline Co., No. 00-09678 Court 160th District Court, Dallas County Plaintiffs’ Attorney(s): Ted B. Lyon and Marquette Wolf, Ted B. Lyon & Associates, Mesquite Defense Attorney(s): John Clayton, Jackson Walker, Houston; David C. Myers, Jackson Walker and Gordon M. Shapiro, Jackson Walker, Dallas MEDICAL MALPRACTICE Patient claimed doctor would not treat infection after surgery A Houston plastic surgeon did not abandon his patient after she allegedly developed an infection following breast reconstructive surgery, a Harris County jury found on Feb. 10. Rhonda Davis, 42, of Baytown, alleged that in February 2001, she was turned away when she called the office of Eric Rothenberg, M.D., complaining that he needed to remove infected tissue and the mesh that he had inserted during breast reconstructive surgery following her mastectomy. Davis claimed $36,000 in postoperative medical expenses and sought a total of $300,000 in damages, but the jury found that Rothenberg was not negligent and did not abandon Davis. Davis v. Rothenberg, No. 2003-03400 Court: 234th District Court, Harris County Plaintiffs’ Attorney(s): Steven M. Polotko, Nicholas & Polotko, Houston; David A. Slaughter, Law Offices of David A. Slaughter, Houston Defense Attorney(s): Don Karotkin, Karotkin, Chase & Erwin, Houston TOXIC TORTS Laborer exposed to asbestos for nearly 40 years The family of a deceased refinery worker was awarded $5.2 million by an El Paso County jury on Feb. 24 against Quigley Co., the maker of Insulag, a powdered, asbestos-containing insulation. Luis Ytuarte Jr., 77, claimed he was exposed to the material from 1948 through the mid-1980s while working at a refinery in El Paso. In 2002, he was diagnosed with mesothelioma and died nine months later. The verdict includes punitive damages of $2.5 million. Quigley, which manufactured and sold the product until 1974, was the only defendant at trial. Both a $668,000 settlement credit and a statutory cap on punitives will apply. The defendants placed all the blame on Ytuarte’s employer, against whom the plaintiffs have a separate lawsuit pending. Espinoza v. Quigley Co., No. 2003-573 Court: El Paso County Court at Law No. 3 Plaintiffs’ Attorney(s): Allen M. Stewart, Chris Panatier, and Tiffany L. Newlin, Baron & Budd, Dallas; Enrique Moreno, Law Office of Enrique Moreno, El Paso Defense Attorney(s): James H. Powers, Powers & Frost, Houston; Timothy J. Hogan, Beirne, Maynard & Parsons, Houston; Carlos Rincon and Stacy Zavala, Delgado, Acosta, Braden & Jones, El Paso The verdicts and settlements above are reported and written by VerdictSearch Texas . Send verdicts and settlements to [email protected] Additional verdicts can be found in VerdictSearch Texas or at VerdictSearch.com, affiliates of Texas Lawyer.

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