Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Harriet O'Neill

(Justice Willett and Justice Guzman not sitting) 09-0073 Merck & Co. Inc. v. Felicia Garza, et al. from Starr County and the Fourth District Court of Appeals, San Antonio For petitioner: Stephen G. Tipps, Houston For respondents: Kevin Dubose, Houston A principal issue is whether clinical-testing evidence showing a less-than-double risk in the general population, combined with other evidence, can legally prove toxic-injury causation under Havner’s more-likely-than-not reliability standard. Garza sued Merck after her husband, who had a history of heart ailments, died of rare simultaneous arterial clots after taking Vioxx prescribed by his cardiologist. Merck challenged as legally insufficient Garza’s expert testimony in a motion to disregard the jury verdict for Garza. The court of appeals initially reversed and rendered judgment for Merck, holding that Garza did not refute with reasonable certainty that her husband’s pre-existing heart condition was a plausible cause of death. On rehearing, the appeals court held that Garza’s expert testimony met Havner’s requirements. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The central issue in this worker-compensation death-benefits claim is whether an exception to the coming-and-going rule applied to a vehicle accident that killed a contract foreman working 440 miles from home, provided a company car and paid per-diem to live near his work site. When the accident occurred, Lopez was driving two subordinates to the work site, 40 miles from their temporary quarters. After his death, and after SeaBright denied his widow workers-comp benefits, she contested the denial before the Insurance Department's workers-comp division and won. SeaBright sued, but the trial court granted Mrs. Lopez summary judgment. The court of appeals affirmed, holding that Lopez's accident occurred in the course and scope of his employment.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0435 Weeks Marine Inc. v. Maximino Garza from Starr County and the Fourth District Court of Appeals, San Antonio For petitioner: Frank E. Pérez, Brownsville For respondent: Edward John “Jack” O’Neill Jr., Houston For amicus King Fisher Marine Services: Steven J. Knight, Houston Principal issues in this Jones Act action are (1) whether legally sufficient evidence supported the jury’s finding that Weeks’ failure to provide “maintenance and cure” aggravated Garza’s original injury and (2) whether damages for negligence and for failure to provide maintenance and cure were duplicative. Garza filed suit after he was hit in the head by a swinging bar aboard a barge, claiming negligence under the federal Jones Act and aggravation of that injury by Weeks’ failure to get adequate treatment for the injury. Weeks’ preferred physician cleared Garza to return to work. but after Garza continued to complain of symptoms, his own doctor referred him for surgery. The trial court awarded damages for the injury and pain and suffering because of the failure to provide maintenance and cure. On review, the court of appeals affirmed, holding in part that damages did not amount to a double recovery. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us