July 2015 P&E Flashcards
Paul and Linda were driving to New Mexico for a vacation, when an 18-wheeler truck crossed into their lane of traffic and collided head-on with their vehicle. The accident occurred in Muleshoe, Bailey County, Texas, just south of the Texas-New Mexico border. The truck was owned by Mega Mart, a Delaware corporation with stores in Texas, and was being driven by George, a resident of Dallas County, Texas. Paul suffered some cuts and bruises, but Linda was seriously injured and died.
Paul filed a wrongful death lawsuit in district court in Bailey County against Mega Mart and George and properly served each of them with the lawsuit.
When must Mega Mart and George file their answers to avoid the entry of a default judgment against them?
Mega Mart and George must file their answers by 10 am on the Monday following the expiration of 20 days from the date of service.
Mega Mart wants to remove the case to federal court on the basis of diversity of citizenship, since it is a Delaware corporation.
Does Mega Mart have a valid basis for removing the case to federal court based on diversity of citizenship? Explain your answer.
No, since D, George is a Texas resident, and P, Paul is also a Texas resident, complete diversity does not exists. Complete diversity is required to establish diversity jurisdiction.
George does not want the case to proceed against him in Bailey County because he does not live there.
What pleading must George file to present his objection to the case proceeding against him in Bailey County, and when must he file the pleading? Explain your answer.
George must file a motion to transfer venue before or concurrently with any other pleading (except special exception) if he wants to object to the case proceeding against him in Bailey County.
Assume George properly files his objection to the case proceeding against him in Bailey County.
How should Paul respond to George’s pleading, and how should the Court rule? Explain your answer.
Paul should respond to George’s motion with affidavits and other proof establishing venue in Bailey County, where all or a substantial part of the events giving rise to Paul’s claim occurred. The Court denying George’s MTV because venue is proper in Bailey County, where the events giving rise to Paul’s claim occurred.
Paul’s original petition is very broad and makes only general allegations of negligence against Mega Mart and George.
What pleading should Mega Mart and George file to require Paul to replead his case with more definite and specific factual allegations, and what is the effect of failing to file such a pleading? Explain your answer.
Defendants should should file a special exception pleading that Paul corrects his original petition specifically calling out each error individually. If Defendants fail to file a special exception, they waive their right to do so for any defect in the petition.
Paul’s original petition contained requests for disclosure to the defendants.
Name 5 categories of information or documents that Paul may request from the defendants in requests for disclosure.
Paul may request disclosure of any or all of the following:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any
potential parties;
(c) the legal theories and, in general, the factual bases
of the responding party’s claims or defenses (the
responding party need not marshal all evidence that
may be offered at trial);
(d) the amount and any method of calculating economic
damages;
(e) the name, address, and telephone number of
persons having knowledge of relevant
facts, and a brief statement of each identified person’s
connection with the case;
(f) for any testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental
impressions and opinions and a
brief summary of the basis for them, or if the expert is
not retained by, employed by, or otherwise subject to
the control of the responding party, documents
reflecting such information;
(4) if the expert is retained by, employed by, or
otherwise subject to the control of the responding
party:
(A) all documents, tangible things, reports, models, or
data compilations that have been provided to,
reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography; (g)
any indemnity and insuring agreements described in
Rule 192.3(f);
(h) any settlement agreements
described in Rule 192.3(g);
(i) any witness statements
described in Rule 192.3(h);
(j) in a suit alleging physical
or mental injury and damages from the occurrence
that is the subject of the case, all medical records and
bills that are reasonably related to the injuries or
damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and
bills;
(k) in a suit alleging physical or mental injury and
damages from the occurrence that is the subject of
the case, all medical records and bills obtained by the
responding party by virtue of an authorization
furnished by the requesting party;
(l) the name, address, and telephone number of any person who may be designated as a responsible third party.
In response to Paul’s requests for disclosure, Mega Mart objects to a request for its insurance coverage on the basis that it is a multi-billion dollar corporation with sufficient assets to cover any verdict, and its insurance coverage is irrelevant.
What action should Paul take to bring Mega Mart’s objection to the Court’s attention, and how should the Court rule? Explain your answer.
Paul should file a motion to compel Mega Mart to provide its insurance coverage information and request a hearing. The court should grant the motion. Texas Rule of Civil Procedure 194 does not permit objections to requests for disclosure.
Mega Mart serves Paul with a request for documents that Paul believes calls for the production of privileged material.
How can Paul preserve the privilege? Explain your answer.
Paul should preserve privilege to requested documents by asserting the privilege. Paul should serve Mega Mart with a withholding statement that (1) states he is withholding information responsive to the request, (2) identify the request to which the information related, and (3) identify the privilege he is asserting.
A few weeks after the accident, Mega Mart’s attorneys took a recorded statement from George. Paul sends a request for production to Mega Mart to obtain a copy of the statement. Mega Mart objects on the basis of the
attorney work-product privilege and argues that Paul can get the same information by taking George’s deposition.
How should the court rule on Mega Mart’s objection? Explain your answer.
The court should overrule Mega Mart’s objection to Paul’s request for George’s recorded statement. A party may obtain discovery of any statement by a person with knowledge of relevant facts
Paul notices the deposition of Mega Mart’s president. Mega Mart does not want to produce its president for deposition because he does not know anything about the accident.
What pleading should Mega Mart file to resist the deposition of its president? Explain your answer.
Mega Mart should file a motion for a protective order or to quash the deposition of its president. This is an Apex deposition. Mega Mart’s motion should be accompanied by an affidavit from its president denying any personal knowledge of relevant facts.
Paul retains and designates an expeCrt witness to review the facts of the accident and to testify at trial. The expert does not prepare a written report. Mega Mart and George want to know the expert’s opinions.
How can the defendants obtain information about the opinions of Paul’s expert? Explain your answer.
Mega Mart can issue a notice to depose Paul’s expert. Mega Mart can also serve Paul with a request for disclosure seeking the expert’s mental impressions and
opinions, and a summary of the basis for them, as well as any data compilations.
Paul sends George a request for admission asking George to admit that he fell asleep immediately before the collision with Paul and Linda. Thirty-five days after the request was served, George serves Paul with a response denying the request for admission.
What is the effect of George’s response and what must George do if he wants to change that effect? Explain your answer.
George’s untimely response to Paul’s request for admissions resulted in a deemed admissions. George could change this result by filing a motion to
withdraw admissions. George must show good cause and that the party relying on the admission would not be unduly prejudiced by the withdrawal.
During Paul’s deposition, his attorney wants to object to questions being asked by opposing counsel.
Mega Mart and George’s attorneys want to object to some of Paul’s answers.
What objections may be made to questions asked during Paul’s deposition and what objections may be made to Paul’s testimony during the deposition? Explain your answer.
Paul’s attorney may object to deposition questions, but is limited to “objection, leading” and “objection, form.” Defendant’s attorneys may only object to answers which are non-responsive, “objection, non-responsive.”
During discovery, Paul learns that Mega Mart changed its policies and procedures after the accident to mandate more rest between shifts for their truck drivers to avoid excessive fatigue. Paul plans to offer this fact at trial as evidence that Mega Mart knew George was driving with insufficient rest at the time of the accident.
Mega Mart believes that the evidence is not admissible and is prejudicial.
What pleading should Mega Mart file to bring this matter to the Court’s attention and keep the evidence from being presented to the jury, and how should the Court rule? Explain your answer.
Mega Mart should file a motion in limine to prevent disclosure of its changed policies/procedures and the court should grant the motion/exclude the evidence. Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct.
The case proceeds to trial. Prior to jury selection, George wants to keep Paul from disclosing to the jury panel that he was convicted of driving while intoxicated 10 years before the accident.
How can George keep this information from the jury panel, and what must he show to accomplish that? Explain your answer.
George should file a motion in limine to prevent disclosure of his DWI. George must establish such evidence is unfairly prejudicial to him. George must show such evidence as irrelevant.
