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Sheehy, Ware, Pappas & Grubbs, P.C. Attorney, Kevin S. Niknam, Securs a Triple-Summary Judgement Victory

July 2023 • Source: Sheehy, Ware, Pappas & Grubbs, P.C. 

Kevin S. Niknam represented three separate corporate entities in a premises liability suit involving a total of five named defendants. The lawsuit was filed by personal injury firm The Carlson Law Firm. The incident arose out of a slip-in-fall at a China Bowl Café restaurant in Pflugerville, Texas. Plaintiff claimed to have suffered severe injuries after allegedly slipping on a liquid substance inside the restaurant. Plaintiff was a patron at the time and thus the invitee standard of premises liability applied. Plaintiff alleged negligence, negligence per se and asserted violations of the Americans with Disabilities Act and the Texas Health and Safety Code.

The entities Mr. Niknam represented were the landowner, property management company and the conglomerate that held the insurance policy. After over a year of discovery, consisting of eight depositions and numerous rounds of requests for production, Mr. Niknam filed Traditional and No-Evidence Motions for Summary Judgement on behalf of all three entities. He successfully argued that his clients owed no duties to Plaintiff and had not violated the ADA or THSC. The judge found Plaintiff’s claims had no merit and granted all three motions.

The motions were heard before former appellate judge, the Honorable Judge Scott Fields, 368th Judicial District, Williams County, Texas.


Malinda Matlock Invited to Speak at 2023 OK Judicial Conference

July 2023 • Source: Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC

Malinda Matlock of Rhodes Hieronymus in Oklahoma City was invited to Speak to the 2023 Oklahoma Judicial Conference, attended by most Oklahoma State judges. Malinda discussed E-discovery issues in the context of standards, requirements and methods of evidence preservation relating to Smartphones/texts/emails. She presented the topic from the defense prospective opposite a good plaintiff’s attorney. She related that the starting point for preservation obligations in Oklahoma is actually a case from a New York federal court,  Zubalake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004).  The consensus was that every law firm should establish a clear policy about collection and preservation of data and utilize an appropriate letter for notification of clients, including a plan to ensure compliance


Perrier & Lacoste Obtains Unanimous Defense Verdict in Alleged New Orleans Side-Swipe

June 2023 • Source: Perrier & Lacoste

On May 3, 2023, Perrier & Lacoste trial attorneys, Trent P. Roddy and Guy D. Perrier, obtained a Defense Verdict on liability in New Orleans trucking accident trial.  After years of delays, a stay, and motion practice, the trial was completed in the United States District Court for the Eastern District of Louisiana.   A unanimous jury found no fault on the Defendant truck driver. 

The Plaintiffs alleged that they were injured in a November 29, 2017 side-swipe car accident on Interstate-10 in New Orleans.  Plaintiffs claimed that they were passengers in a Nissan Murano.  They alleged that the Defendant’s 18-wheeler entered their lane and side-swiped the Murano.  They testified that the Defendant’s 18-wheeler “ate up” the side of their car and “dragged” them down the Interstate.  Plaintiffs later sought medical treatment from several New Orleans health care providers for alleged cervical and lumbar spine injuries.  In their Complaint, Plaintiffs asked for damages in excess of $1,000,000. 

However, during the Defense’s case, the Defendants proved that the truck driver did not enter the Plaintiffs’ lane at all.  The Defendant truck driver testified that he did not change lanes on I-10 and did not see, hear, or feel any impact.  The Defendant truck driver told the jury how he was alarmed when another motorist drove on the side of his 18-wheeler at night on I-10 and attempted to waive him to the shoulder of the Interstate. 

The Defendant truck driver’s testimony was supported by an accident reconstruction expert.  The Defense accident reconstruction expert proved that the accident could not have happened in the way the Plaintiffs described.  The Defense accident reconstruction expert proved that Defendant’s 18-wheeler did not change lanes, did not hit the Plaintiff vehicle, and did not drag the Plaintiffs’ vehicle down Interstate 10.  The accident reconstruction expert explained to the jury that the damage to the Plaintiffs’ vehicle was caused by the driver of the Plaintiff vehicle steering into an 18-wheeler.

Defendants exposed the fact that several friends and relatives of the Plaintiffs were involved in claimed side-swipe accidents with 18-wheelers on I-10 in New Orleans, all within weeks of the Plaintiffs’ alleged accident.  These other accidents all fit an established pattern of facts just like the facts of the Plaintiffs’ alleged accident.  Plaintiffs attempted to deny that their associates were involved in these similar accidents and that they had spoken with these associates before their accident.  However, using Plaintiffs’ cell phone records, Defendants brought to light the fact that the Plaintiffs were communicating with associates involved in similar side-swipe accidents around the time of their alleged accident.  Defendants also used the cell phone records to show that the Plaintiffs were not even in the same vehicle when the accident occurred.  Through Defendants aggressive pre-trial discovery, they were able to find evidence that the Plaintiffs conspired to intentionally stage their accident.

Defendants presented expert testimony from a neuroradiology expert, who testified that there was no evidence of any injuries in Plaintiffs’ MRIs.  The Defense also investigated the Plaintiffs’ multiple prior injury claims.  As a result of their investigation, the Defense team was able to expose the Plaintiffs’ false testimony about their medical histories on cross-examination.

Defendants could not have been able to present a winning case if they had not defeated Plaintiff’s several pre-trial motions to withhold critical evidence from the jury.  The Plaintiffs filed several evidentiary motions intending to prevent Defendants from presenting any evidence that the Plaintiffs staged the accident.  The Defense defeated Plaintiffs’ motion seeking to exclude any facts that Plaintiffs’ associates were in similar I-10 side-swipe accidents.  The Defense defeated Plaintiffs’ attempt to exclude Defendants’ accident reconstruction expert from showing that Plaintiffs’ accident shared the same pattern of facts as their associates’ other I-10 side-swipe accidents.  Defendants also prevailed when Plaintiffs moved to exclude Defendants’ medical expert from testifying that the Plaintiffs’ MRIs show no injuries from the accident.
After defeating motion after motion, the Defense was able to expose the Plaintiffs’ lies and present the facts to the jury.  The jury vindicated the Defendants and returned a unanimous verdict that Defendant truck driver had no fault in Plaintiffs’ alleged accident.    


Dealing with Field Failure of Plastic Building Products

May 2023 • Source: Jack Huang, Ph.D., Envista Forensics and Andrew Schmit, PE, Envista Forensics

Plastic is all around us. It’s in the clothes we wear, the electronic devices we use, the vehicles we drive, and even the concrete we walk on. Given the abundance of use, it shouldn’t be surprising that plastics are also used in building products, including pipes and fittings used for potable and process water. When it comes to the failure of plastic components, especially those carrying water, the resultant damages require the need to identify the exact cause of the failure as the root of the failure will be critical to multiple parties, e.g., the building owner, insurance companies, the manufacturer, and the installer. In any of these cases, there are a number of potential causes that must be considered. Read the full article.


The High Burdens of an Anti-SLAPP Motion to Dismiss: Bristol Asphalt Co., Inc. v. Rochester Bituminous Prods., Inc., No. 21-P1135, 2023 WL 3134396 (Mass. 2023)

May 2023 • Source: Melick & Porter

A motion to dismiss filed under the Massachusetts anti-SLAPP statute creates great obstacles for plaintiffs. This was recently demonstrated in Bristol Asphalt Co., Inc. v. Rochester Bituminous Prods., Inc., No. 21-P1135, 2023 WL 3134396 (Mass. 2023). In Bristol Asphalt Co., Inc., the plaintiff brought a multi-charge anticompetition suit against the defendant alleging that the defendant had, on three separate occasions, filed petitions to block the development of the plaintiff’s concrete plant resulting in a decade long delay to development, nearly $12 million in lost profits and hundreds of thousands of dollars in legal fees. The plaintiff responded by filing a special motion to dismiss under G. L. c. 231 §59H (commonly known as the anti-SLAPP statute).

To evaluate the merits of such a special motion to dismiss, courts will apply the burden-shifting framework first established in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) and modified in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159-60 (2019). The burden-shifting framework consists of two stages. In the first stage, the movant, the party making the motion, “must make a threshold showing . . . that the claims against it ‘are “based on” the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.’” After the movant meets its burden, the burden shifts to the nonmovant. In the second stage, the nonmovant can satisfy its burden via two paths: either (1) establish, by a preponderance of the evidence, that the movant “lacked any reasonable factual support or any arguable basis in law” for their petitioning activity and that the petitioning activity caused the nonmoving party actual injury; or (2) establish that the nonmovant’s “claim is not a ‘meritless’ SLAPP suit ‘brought primarily to chill the special movant’s . . . legitimate petitioning activities.’”

Here, the first stage was satisfied as the plaintiff conceded that its claims against the defendant were based solely on the defendant’s petitioning activities. As such, the burden shifted to the plaintiff.

The Court then considered all three instances of defendant petition to determine if the petitions were void of any reasonable factual or legal basis. The first defendant petition was to the town planning board challenging the board’s approval of the site plan. The defendant asserted two arguments: (1) the site would increase noise levels leading to a decrease in value of the surrounding property and (2) construction on the site would lead to traffic issues as trucks congest the road. The Court found both arguments were without any factual or legal basis. The noise level issue was already addressed by the town planning board as they conditioned site approval on the site’s compliance on DEP noise regulations. The traffic issue was also without basis as the defendant’s evidence was based in assumed facts rather than any facts specific to the site.

In the second defendant petition, the defendant challenged an extension order issued by the town conservation committee to give the plaintiff more time to perfect their incomplete notice of intent. The defendant petitioned to require the plaintiff to restart the entire process as too much time had passed since the initial filing of the notice. The Court found the petition without basis as the defendant’s petition was based solely on the passage of time rather than any new information which rendered the prior filing or notice inadequate.

In the third defendant petition, the defendant filed a fail-safe review under the Massachusetts Environmental Policy Act (“MEPA”). Again, the Court found the petition meritless as the defendant did not produce any evidence that the plant would cause any damage the MEPA is concerned with or that MEPA review was essential to avoid or minimize environmental impact of the plant.

As all three defendant petitions were without actual evidence or based upon assumed facts and resulted in massive losses to the plaintiff, the plaintiff met their burden under the second stage of the burden-shifting framework. As a result, the Court affirmed the lower court’s denial of the defendant’s special motion to dismiss.

This decision underscores the high bar that the nonmovant needs to meet when faced with the second stage of a special motion to dismiss under the G. L. c. 231 §59H and the courts desire to prevent the use of frivolous petitions to impede competition. If you have any question about these issues, Melick & Porter’s team of experienced attorneys are always available to help.



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