Much has been written in recent years about changes to the litigation landscape in Texas.  Clearly, the significant tort reform passed in this state, particularly the sweeping reforms in 2003, have greatly impacted the way litigation is pursued, and how cases are tried, in Texas.  Overall, filings in mass tort, toxic tort, product liability and catastrophic injury claims are well down from the mid-1990’s when torts, as much as oil, ruled the Lone Star State.

A recent $159 million dollar verdict in a six plaintiff case in Harris County may signal that the pendulum has moved back in the direction of injured plaintiffs.  The case, Cuevas, et al. v. Critical Path Resources, Inc. (Cause No. 2012-21574, In the District Court of the 129th Judicial District, Harris County, Texas), stemmed from the March 6, 2012 chemical rupture and fire at a Valero refinery in Memphis, Tennessee.  The spill resulted in a torrent of liquid fire which killed one of the plaintiffs and severely burned five others.  All of the plaintiffs were employees of JV Industrial, working on a project supervised by Valero.  Another defendant, Critical Path, allegedly provided planning and scheduling services for the project.  Tennessee OSHA had previously found that the workers were not properly protected from hydrocarbons in a knock out drum while they were blocking off the refinery’s south flare line.  This ultimately led to the resulting chemical rupture and fire.

All defendants other than Critical Path settled prior to submission to the jury.  Under Texas’s comparative fault scheme and responsible third party practice, Critical Path was able to submit evidence of the negligence of multiple actors.  The jury ultimately found Valero to be 70% at fault, JV Industrial 14% at fault and assigned another 10% of the fault to other entities not present at the time of verdict.  The jury assessed 6% liability for the $159 million award to Critical Path.  Because the verdict was not unanimous, the jury did not consider an award of punitive damages against Critical Path.

Large awards arising out of refinery accident cases are not a novel occurrence in Texas.  What is more interesting is the recent trend on awards in Houston, not normally seen as an overtly plaintiff-friendly venue.  In fact, this is at least the third seven- to eight-figure plaintiff verdict this year in Harris County, Texas.

Despite Texas’s conservative nature, business friendly environment and significant tort reform, it is still a dangerous place to be a defendant in mass tort or catastrophic injury cases.  Clearly, this is a trend worth watching, and we’ll continue to keep you apprised of the situation.