Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Eloise Moore worked in the food service department of the Memorial Hermann Southeast Hospital Co. Several weeks into the job, she suffered a back injury from pulling large, fully loaded food carts to a hospital wing. The hospital was not a workers’ compensation subscriber, so the hospital physicians handled her treatment. Moore then sued the hospital for negligence, saying the hospital was negligent in not providing a safe workplace, proper tools or proper safety training. The case went to trial, and the jury began deliberations on a Thursday. On Friday, the jury sent a note to the judge asking for a layman’s definition of proximate cause, which the judge answered. At 4:25 that day, the jury sent out another note saying that they were deadlocked. The judge informed the jury either to continue deliberating until 5:00, or to break at that point and continue deliberations on Monday. The jury then sent out a third note notifying the judge that they were deadlocked and had been since the day before. The judge responded with an Allen instruction, also known as a “dynamite” charge, encouraging the jury to reach a verdict, indicating his opinion that he didn’t think the jury had deliberated long enough and notifying them that he was recessing the court until Monday. The jury came back on Monday and after several hours reached a verdict in favor of the hospital. On appeal, Moore argues the trial court erred: 1. in admitting her Social Security Administration records while subsequently excluding the rebuttal testimony of her vocational expert witness; 2. in admitting her SSA records while subsequently excluding an explanatory letter from the SSA; 3. in excluding the opinion testimony of her treating physician; 4. in excluding the testimony of her workplace safety expert; 5. in refusing to instruct the jury regarding the duties employers owe to their employees; 6. in instructing the jury to continue to deliberate; and 7. in instructing the jury with a “dynamite” charge late on a Friday afternoon. HOLDING:Affirmed. The court discusses the first two arguments together. The SSA records noted that Moore’s primary diagnosis was due to obesity and her secondary diagnosis was due to degenerative changes in the spine. The date of disability was listed as being six days before her injury at the hospital. Moore says she should have been able to present the rebuttal testimony of her vocational expert witness who would have explained that it is routine practice for the SSA to list the first day of the month as the date of disability, regardless of what the specific day of that month the disability actually occurred. The witness, however, was not designated to offer testimony on this subject, and Moore’s explanation for why she didn’t � that she trusted that only a few portions of her file would be admitted, or that she could never imagine that the court would let in the entire file � does not establish good cause for the failure. Moore also says an explanatory letter from the SSA should also have been admitted to make the same point as the rebuttal witness, but the court finds that the letter was inadmissible hearsay. As for the excluded testimony from Moore’s treating physician, Moore did not disclose certain enumerated information about her doctor as requested by the hospital during discovery. She claims she did not have to disclose the information because her doctor was a rebuttal witness, not a retained expert. The court finds that once the hospital disclosed the opinions of its expert that she should have known that her doctor’s testimony might be needed. witness. Rebuttal witnesses are not automatically exemption from the scope of the discovery rules. The court next turns to the exclusion of Moore’s workplace safety expert. The court finds that the trial court, applying the standards of E.I. du Pont de Nemours & Co. Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995), was correct. The expert concluded in his deposition testimony that the hospital food carts were not properly selected, but the expert did not know how big the carts the hospital actually used were, how much they weighed or how much they could carry. He could not make any recommendations about what kind of training the hospital should have provided. Though he complained of the type of flooring the hospital used, he had not actually seen it. Because the expert’s analysis fails to take into consideration so many critical factors, the court finds that his conclusions do not provide a reasonable basis for his opinions. The court affirms the trial court’s refusal to submit Moore’s requested jury instruction on negligence, finding that it was merely an explanatory instruction including surplus directions. The court also upholds the trial court’s use of the “dynamite” charge. Moore argues that invoking the charge late on a Friday afternoon, and then again on Monday morning when the jury returned, constitutes potential coercion. The court, however, finds no element of express or implied coercion. In charging the jury, the trial court did not present the jury with, as Moore claims, “the prospect of being required to deliberate for an entire additional week” or otherwise “be held indefinitely unless and until it reaches a verdict.” OPINION:Hedges, C.J.; Hedges, C.J., Hudson and Frost, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.