For the week of April 25, 2011, the Dallas Court of Appeals issued eleven opinions in civil cases. Six of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement). The remaining five cases are as follows:
Ethicon Endo-Surgery v. Gillies (05-09-00150-CV) – Recites well-established (1) rule a party requesting a non-suit has an absolute right to the non-suit; (2) rule that a party is restricted on appeal to the theory on which the case was tried; (3) elements of negligent marketing claim; (4) rule that expert testimony is required in strict liability marketing defect claim; (5) rule that expert testimony is necessary to establish standard of care when alleged negligence is not within the experience of laymen; and (6) when allegedly negligent conduct involves use of specialized equipment and techniques, expert testimony must establish both the standard of care and a violation of that standard. Additionally, holds that expert testimony is required in negligent marketing caes.
Gonzalez v. Wells Fargo Bank, NA (05-09-01322-CV) – Recites well-established rule that, without a reporter’s record, appellate court must presume that the evidence supports the trial court’s judgment.
McGehee v. Bowman (05-10-00598-CV) – Recites well-established rule that, if an arbitration agreement is silent or ambiguous about who should decide whether a dispute is subject to arbitration, a court should not presume that the parties intended the issue of arbitrability to be decided by an arbitrator.
Molina v. Jolly Chef Express (05-07-01092-CV) – Recites well-established (1) no-evidence summary judgment standard; (2) rule that liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous; and (3) rule that there is no duty to warn when risks associated with a product are within the ordinary knowledge common to the community.
Ugwonali v. Agbor (05-10-00527-CV) – Recites well-established rule that an individual who is a party to civil litigation has the right to represent himself at trial and on appeal.