Hatcher Law Group Obtains Bench Trial Verdict Below Its Rule 68 Pre-Trial Offer in Defense of a Third Degree Burn Case


On August 4, 2Chaves_Country_Courthouse016, Judge Freddie J. Romero, District Judge, Fifth Judicial District Court, in the matter of Joel Keeney, et ux. v. Otoniel Gomez d/b/a El Marcianito Cowboy, Chaves County No. D-504-CV-2013-398, entered his Amended Decision, Findings of Fact and Conclusions of Law in a case tried to the Court on December 16-18, 2015.  The Hatcher Law Group defended claims of negligence against Mr. Gomez in a case seeking damages for personal injuries and loss of earnings after Plaintiff sustained third degree burns over a substantial part of his body when a gas explosion occurred when he started a welding job on Defendant’s oil field water tank truck on April 10, 2012.  Plaintiff claimed Mr. Gomez was negligent in failing to warn him that the tank contained flammable liquids prior to his work on the truck and that Defendant failed to take steps to ensure that the truck was properly prepared for Plaintiff’s work.  Defendant asserted Plaintiff was solely negligent and that certain OSHA violations with respect to the work site were violated, thereby supporting a basis for findings of negligence per se against Defendant. As a result of the injuries, Plaintiff required multiple surgeries, including skin grafts, and reported medical expenses of $556,081.27.

The Court, following three days of testimony, found Mr. Keeney’s total damages were $1,359,081.21.  The Court found an additional $75,000.00 in loss of consortium damages to Plaintiff’s wife, Maria Keeney.  However, Judge Romero found Plaintiff to be 75% at fault and Defendant only 25% at fault.  Because Defendant, prior to trial, satisfied a lien from the Texas Tech Medical Center of $477,826.05 by a payment in a reduced amount of $178,826.05, the Court found Defendant entitled to a credit by the amount paid.  The Court, however, ruled against Defendant in his argument that the paid amount represented the reasonable value of the medical amounts billed through Texas Tech and allowed Plaintiff to “board” the total invoice amount citing, Pipkin v. TA Operating Corp., 466 F.Supp.2d 255 (D.N.M. 2006).  The Court rejected Defendant’s argument that the actual amount paid represents the reasonable value of those services citing the case of Howell v. Hamilton Meats and Provisions, Inc., 257 P.3d 1130 (Cal. 2011) (Plaintiff not entitled to the full undiscounted amount of medical expenses billed).

After applying the credit for the amounts paid and applying the percentage allocation of fault against Plaintiff, the Court entered a net judgment in favor of Plaintiff Joel Keeney in the amount of $205,640.95 and in favor of his wife in the amount of $18,750.00.

Prior to trial, Defendant served Plaintiff with a Rule 68 Offer of Settlement in the amount of $400,000.00 total damages.  Plaintiff’s last pre-trial demand was for a total settlement in the amount of $750,000.00.  Pending at the present time is a determination of costs which Defendant will assert should be deducted from the verdict, specifically those post-offer costs made by the Defendant, as a result of the cost shifting provisions under Rule 68.

Aside from various medical treating doctors, there were no damage experts which testified at trial.  Defendant called a welding expert, Michael Thomas, Albuquerque, New Mexico, to testify as to safety standards in the welding community.  The primary defense raised by the Defendant was that Mr. Gomez, who was not a licensed welder but had substantial commercial welding experience, failed to properly vent the tanker prior to commencing welding operations.  The Court found the tanker had flammable gases which served as a combustible source which, in turn, ignited from a spark from Mr. Keeney’s grinder causing the fire.  Mr. Keeney was preparing to repair an open hole, causing a leak, in Gomez’ tanker when the explosion occurred.
Plaintiffs were represented by Brian K. Branch, Esq. and Sean McAfee, Esq. Attached is a link to Judge Romero’s Amended Decision, Findings of Fact and Conclusions of Law.

2016.08.04 Decision, Findings of Fact and Conclusions of Law