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Longoria v. United Blood Service8/3/1995
08/03/1995
On appeal from the 93rd District Court of Hidalgo County, Texas.
O P I N I O N
The Longorias appeal from the second summary judgement granted against them in their suit against United Blood Services (UBS) for the death of their daughter as a result of acquired immune deficiency syndrome-tainted blood given to her in a transfusion. We reversed the first summary judgement on the ground that, although the movants had conclusively disproved any negligence in failing to screen their blood for acquired immune deficiency syndrome (AIDS) at the time of the transfusion, a fact issue remained concerning their potential negligence in failing to screen for other diseases, which indirectly could have prevented those at high risk for AIDS from donating blood and probably prevented the blood from becoming contaminated with AIDS. Upon remand, UBS again moved for summary judgment, this time presenting expert medical evidence that it was not negligent in failing to screen for other diseases, such as cytomegalovirus (CMV) or hepatitis. In addition, UBS challenged the Longorias' supposed expert, Melvin N. Kramer, as being unqualified to make assertions about the standard of care for blood banks and the screening of blood donors. UBS also urged for the first time the two-year statute of limitations as a bar to the present action.
The trial court granted the second summary judgement in favor of UBS on all claims asserted against it by the Longorias. The Longorias raise six points of error on appeal, arguing numerous errors in the procedure and the existence of fact questions precluding summary judgment. We reverse the second summary judgement and remand the case to the trial court for trial on the merits.
We first address the procedural questions raised by the Longorias concerning the hearing of UBS's second motion for summary judgment and the alleged errors affecting our review of the summary judgment evidence and the state of the pleadings at the time of the summary judgment.
By their fourth point of error, the Longorias complain that the trial court erred by refusing to consider additional evidence presented after the summary judgement had already been determined.
The present summary judgement order was signed on September 8, 1992.
The Longorias then filed an unsworn motion for new trial on October 2, 1992, urging among other things that the trial court consider new evidence. The Longorias attached to the motion for new trial the depositions of two physicians who were deposed after the trial court took the motion for summary judgement under consideration. One physician testified concerning his knowledge of the procedures used by UBS in collecting blood. The other physician testified as an expert on hospital testing of blood. The Longorias urged the trial court to consider this new evidence.
A trial court may consider only the summary judgement evidence on file at the time of the hearing or filed thereafter and before judgment with permission of the court. Leinen v. Buffington's Bayou City Service Co., 824 S.W.2d 682, 685 (Tex. App. -- Houston [14th Dist.] 1992, no writ); Tex. R. Civ. P. 166a(c). Accordingly, on motion for new trial after summary judgement is granted, the trial court may generally consider only the record as it existed prior to granting the summary judgment. Leinen, 824 S.W.2d at 685; Parchman v. United Liberty Life Ins. Co., 640 S.W.2d 694, 696 (Tex. App. -- Houston [14th Dist.] 1982, writ ref'd n.r.e.). Moreover, if the Longorias rely on newly discovered evidence as justification for a new trial, they must meet the due diligence requirement that such evidence could not have been obta
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