Dallas partner Bob Bragalone and senior counsel Margaret Mead obtained a full dismissal with prejudice of all of Plaintiff’s claims of radiation exposure and breast cancer with no payment to the Plaintiff. Plaintiff sued his employer and one of its members, the doctor’s professional association, alleging that he contracted breast cancer as a result of exposure to radiation. Plaintiff was employed as a radiation technician and also performed after-hours janitorial services for the business as an independent contractor. Plaintiff alleged the exposure occurred while he was performing services as an independent contractor for the company in a strategic attempt to plead around the worker’s compensation bar in Texas.
In his deposition, Plaintiff was forced to admit that he was an employee of the company and that all of his janitorial services were performed when the facility was closed and the imaging equipment turned off. He further expressly admitted that he could not have been exposed to radiation while performing the janitorial services, and that any radiation exposure must have occurred in his capacity as an employee.
Citing the crucial testimony of Plaintiff, Gordon & Rees, on behalf of its clients, moved for summary judgment, arguing that the Texas Worker’s Compensation Act barred any recovery. Plaintiff apparently agreed, as evidenced by the fact that he filed no response to the MSJ, and the Court entered a dismissal with prejudice.