Brent and Todd Esse v. BP America Production Co., Inc., Empire Energy, Ltd. and Kenneth Havis, Trustee for Westgate Energy Partners; cause no. 01-08-854-CV; in the Court of Appeals for the First Supreme Judicial District of Texas. Click here for copy of the opinion. Click here for a copy of appellees’ briefs.

This was an appeal of a case that I successfully tried for over one week in district court in Houston, where my clients BP, Empire and Havis were pursuing the principals of a small oil company, Westgate Energy Partners, which failed to pay its share of drilling and development costs for a well in West Texas. Westgate’s principals drained the company of assets for their personal benefit as my clients were demanding payment of Westgate’s share of well costs. Shortly after I filed suit, Westgate’s principals put the company in chapter 7 bankruptcy, thinking that would be the end of my clients’ efforts to make them pay both what Westgate owed its working interest partners, and to make the principals of Westgate pay for having drained the company of assets. Instead of going away, I was hired by the drained company’s bankruptcy trustee to pursue the company’s principals for having fraudulently transferred the company’s assets to a new company owned by the principals. Trial resulted in a judgment of over $225,000.00 against Westgate’s principals, which they appealed.

On appeal, I was successful in getting the First Court of Appeals in Houston to affirm the judgment in its entirety. This decision is significant because it affirms under Texas fraudulent transfer law that individual corporate actors who do not necessarily personally make or receive transfers of corporate assets can be personally liable nonetheless if such transfers are for their direct or indirect personal benefit. Previously, Texas courts and courts in other jurisdictions had either side-stepped or shown hostility to this theory of recovery.

The appeals’ court decision also further refines an unsettled area of Texas law, segregation of attorney’s fees by a successful party.


In Re: Kenneth Higby; cause no. 01-09-521-CV; in the Court of Appeals for the First Supreme Judicial District of Texas. Click here for copy of the opinion. Click here for a copy of appellees’ briefs. Click here for copy of majority opinion. Click here for copy of concurring opinion. Click here for copy of Respondent’s brief.

This was a successful defense of a mandamus action filed by an obstetrician/gynecologist against a judge in Fort Bend County, Texas who had overruled a motion to prevent discovery by my client, Dr. Bruce Halbridge, another obstetrician/gynecologist who sued Dr. Higby for libel in connection with Higby’s complaint to the American College of Obstetricians and Gynecologists (“ACOG”). Higby’s complaint about my client’s activities concerned an earlier medical malpractice case where Dr. Higby and Dr. Halbridge were competing experts. Dr. Higby was hired in the underlying medical malpractice case by Texas’ largest medical malpractice insurer (Texas Medical Liability Trust) to consult with defense counsel, while Halbridge was hired by counsel for the injured plaintiff, a newborn boy.

This is a case of first impression in Texas regarding whether a physician’s complaint to a voluntary professional body about their colleagues’ activities in litigation fall under Texas and federal privileges protecting communications made to a medical peer review body. Higby, in an effort to escape liability for statements he made about Halbridge to the ACOG, asserted the peer review communication privilege during discovery in the trial court. The trial court found that Higby’s statements and activities concerning Halbridge were not privileged, and ordered that Higby respond fully to Halbridge’s discovery requests.

Higby, with the help, counsel and financing Texas Medical Liability Trust, filed for a writ of mandamus against the trial judge, compelling him to vacate his order compelling Higby to respond to discovery.

The First Court of Appeals rejected completely Higby’s and Texas Medical Liability Trust’s attempts to hide their tactics of intimidation of experts for injured plaintiffs by denying Higby’s petition for writ of mandamus. A concurring opinion held specifically, and for the first time in Texas, that the ACOG grievance committee was not a medical peer review committee, and that the Texas medical peer review privilege does not apply to communications concerning expert witness testimony not directly related to the care of the patient.

The problem of expert witness intimidation by defendants in medical malpractice cases and their insurers is an old but unfortunately growing problem. See Expert Witnesses Under Fire, OB.GYN.NEWS August 2008, Vol. 43, No. 15, p. 8; Medical Experts Face Ethics Complaints, Lawyersusaonline article, March 30, 2009.

Fifty three years ago, the California Court of Appeals rejected attempts to curb expert testimony by the actions of a county medical society. Bernstein v. Alameda-Contra Costa Med. Ass’n, 293 P. 2d 862 (Cal. Ct. App. 1956). The California court found that private punitive action against medical witnesses is at odds with the judiciary’s historic role in controlling witnesses, as well as state laws defining witness immunity in civil trials. Id. at 864-65. Forty-five years ago, the Illinois Court of Appeals reinstated to the American College of Surgeons a physician who had been expelled because he testified on behalf of a malpractice plaintiff. Virgin v. American College of Surgeons, 192 N.E.2d 414 (Ill. App. 1963). The proceeding before the College had been initiated by a physician who often testified for defendant doctors. Since this inauspicious beginning, the medical profession and defense bar have met with virtually no success, either in litigation or legislation, in subjecting expert witness testimony to either peer review statutes or bringing it within the definition of the practice of medicine so that such testimony could be regulated outside of judicial authority.

More recently, in Fullerton v. Florida Medical Assoc., 938 So.2d 587 (Fla. 1st DCA 2006), an appellate court decided that neither federal nor the Florida statutory peer review scheme immunized the Florida Medical Association, or the three doctors who complained to it, from defamation and other tort claims of a physician who had testified for a patient and against the three complaining doctors. The complaining doctors, like Higby, sought dismissal of the tort claims under state and federal statutes and Fullerton countered that such statutes were not designed to apply to expert witness testimony, but rather were enacted to address the quality of health care by physicians in the treatment of their patients. The trial court dismissed Fullerton’s complaint, but the appellate court reversed and remanded the case to the trial court for trial.

In reversing, the Florida Court of Appeals noted the federal law of medical peer review’s emphasis on protecting patients from malpractice, concluding that immunity is limited to situations in which “the professional conduct of a physician that might affect his or her patient’s health is being peer-reviewed.” It concluded that neither Florida’s peer review statutes nor federal law clearly and unambiguously expresses the legislative intent the medical expert testimony should be scrutinized by peer review.

Following Higby’s defeat in the court of appeals, he has filed for review in the Texas Supreme Court. The Supreme Court has indicated potential interest in the case, and the matter will be briefed, and possibly argued in the Supreme Court in Austin during the Fall of 2010.

Silver Lion, Inc. v. R. Kent Larsen and Dolphin Street, Inc.; cause no. 01-07-370-CV; in the Court of Appeals for the First Supreme Judicial District of Texas. Click here for copy of the opinion. Click here for a copy of appellees’ brief.

This was a successful defense of a trial court judgment for my clients Larsen and Dolphin Street in a tortuous interference with contract case. My clients, tenants under a commercial lease for a jazz club, sued the landlord for interfering with the sale of the club to a third party who was going to take over the lease and the operation of the club. The judgment was for $115,000.00 in damages due to the landlord’s interference, plus attorney’s for in connection with my client’s successful defense of the landlord’s attempt to hold my client’s liable for unpaid rent on a written guaranty.

My client’s recovery for tortuous interference and attorney’s fees were completely upheld on appeal.