On Tuesday the Texas Supreme Court granted an emergency stay of further proceedings while it considers the defendants’ petition for writ of mandamus in a case arising from a multi-vehicle accident involving a commercial vehicle.
In re Sunoco Retail, LLC, Sunoco, LLC, Sunoco Energy Services LLC, Gopetro Transport LLC, and Derrick Ray Lewis(No. 23-0633) challenges a trial court order consolidating separate actions arising from the same collision, which occurred on I-20 in Smith County. In the first action, plaintiffs Jath and Heather McKuhen sued Sunoco Retail and Derrick Ray Lewis, as well as Design Transportation Services, Inc. and Sherri Gay Kapps in Dallas County district court. Plaintiffs asserted negligence and gross negligence claims against Lewis and Capps, the drivers of two semi-tractor trailers involved in the accident, and their employers. The McKuhens later settled their claims against Design Transportation and Kapps, leaving Sunoco and Lewis in the case. According to Sunoco’s petition, the McKuhen case is prepared for trial and “has been since before the request for consolidation was even made.
In the second action, plaintiff Swanda Deann King sued the same parties in Harrison County district court. To obtain venue in Harrison County, King sued a Harrison County resident whose stationary vehicle was allegedly rear-ended by Lewis’s truck. That resident filed a motion for summary judgment, which stewed in Harrison County for several months before the parties agreed to transfer venue to Dallas County, the county of proper venue to begin with. Following the transfer, King dismissed her claims against the Harrison County resident with prejudice. Although a local rule required it, the King plaintiffs never identified the McKuhens’ action as a related case. In the event, the trial court to which the King case had been transferred (the 44th as opposed to the 68th, where the McKuhens’ case sat ready for trial) set the case for trial by agreement of the parties. Shortly thereafter, after the parties appeared ready for trial in McKuhen, plaintiffs’ counsel informed defense counsel that it would seek to consolidate actions, which subsequently occurred by motion in the 68th. The trial court granted the motion to transfer the King case and consolidate it with the McKuhen action.
Defendants unsuccessfully objected that the transfer and consolidation would be both inefficient and prejudicial. Their petition for writ of mandamus fell on deaf ears at the Dallas Court of Appeals. In their petition to SCOTX, defendants reassert their arguments that the trial court abused its discretion by consolidating the cases based on convenience without a determination of whether “the convenience factors are substantially outweighed by the risk of an unfair outcome because of prejudice or confusion” (citations omitted). Defendants contend that trying the cases together will confuse the jury with “multiplicative” evidence of damages allegedly sustained by each plaintiff, in effect “overwhelming” the jury with evidence and making it impossible for the jury to sort out how it applied to each plaintiff individually. In this case, one of the McKuhen plaintiffs alleged a traumatic brain injury that has already involved seven expert depositions. Other plaintiffs, however, allege different injuries, but if the jury hears all of the evidence together, plaintiff’s argue, “[e]ach Plaintiff will therefore be able to ‘bootstrap’ himself into a larger verdict by ‘overwhelm[ing the] jury with evidence,’ thereby prejudicing Defendants” (citations omitted). Defendants further point out that the Design Defendants, who were dismissed from the McKuhen case, are still in the King case, which adds new plaintiffs and defendants to the consolidated trial (remember, the McKuhen case already had an imminent trial setting when the consolidation circus began).
As to the inefficiency issue, defendants assert that while the McKuhen case is ready to go, virtually no discovery has occurred in the King case and neither side has even disclosed experts. Consolidation has thus not only forced postponement of the McKuhen trial but it has probably sped up the King timeline as well, “all in order to subject the Sunoco Defendants to a trial in which a string of plaintiffs can parade individualized personal-injury evidence in an effort to soak Defendants for additional damages they would never be able to recover in separate trials.”
Does this case present another example of reptile theory in action? Probably so, since damages appear to be the central issue in both cases, so plaintiffs have every incentive to consolidate them and pour it on. We’ll see what the Court does, but it we are happy to see that it got their attention.
