Texas SC says Astros pitcher can't sue Detroit team over arm injury

Steve Korris Feb. 5, 2009, 2:28am

Doug Brocail

AUSTIN – Houston Astros pitcher Doug Brocail blames the Detroit Tigers for an arm injury, but the Supreme Court of Texas won't let him sue the Tigers over it.

The Justices on Jan. 29 denied review of a decision from the 14th Court of Appeals in Houston, clearing the Tigers of liability in the tearing a ligament in Brocail's right elbow.

Brocail claimed the injury ended his career, but current statistics indicate he got stronger as his case got weaker.

Last year, at age 41, he pitched 72 games in relief and won seven. The Astros renewed his contract for 2009, at $2.5 million with an option for 2010 at $2.85 million.

Brocail joined the Tigers in 1997. After three good years they gave him a $600,000 bonus and agreed to pay him $900,000 in 2000 and $2 million in 2001.

In June 2000, his arm started hurting. An X-ray revealed a spur.

A team surgeon examined Brocail and noted tendons and ligaments were intact.

Two weeks later the surgeon noted the arm was tender but getting better.

Soreness and swelling returned after a game in August, so the Tigers placed him on the disabled list.

Another team surgeon examined him, and the team paid for a second opinion from a doctor Brocail chose.

The Tigers brought him back from the disabled list in September, but his first practice session showed he couldn't compete.

On Sept. 22, 2000, another team surgeon inspected the elbow by arthroscope and found "very significant spur formation." He removed two loose bone fragments.

Brocail returned to his home in Missouri City, Texas. He rehabilitated the arm in Sugar Land.

For all these medical bills, the Tigers didn't owe a penny. Like other employers, ball clubs carry workers' compensation insurance.

In December 2000, the Tigers traded Brocail to the Astros.

In April 2001, he threw a pitch and heard a pop. His medial collateral ligament had torn and his flexor tendon had partially torn.

Surgeons rebuilt the joint, and he didn't pitch that year. The Astros paid his $2 million salary but didn't renew his contract.

Nobody signed Brocail for 2002.

That September he sued the doctors and the Tigers in Harris County.

He accused the Tigers of three kinds of negligence, three kinds of fraud, and breach of contract. He claimed they sent him to treatment that wouldn't cure his injury.

He claimed they fraudulently induced him to sign with the Astros.
District Judge John Coselli dismissed all Michigan doctors for lack of jurisdiction, and Brocail later nonsuited claims against all Texas doctors.

The Tigers moved for summary judgment in 2005, raising defenses under Michigan workers compensation law, Michigan fraud law and Brocail's union contract.

Coselli granted the motion, though he didn't specify his grounds.

Brocail threw nine pitches to the appeals court, raising three issues under baseball's collective bargaining agreement, two under workers compensation law, two under fraud law, and two relating to liability and misrepresentation.

Last April, appeals court judges affirmed Coselli.

They held that because a collective bargaining agreement governed assignment of the contract, the national Labor Management Relations Act preempted Brocail's claim that that the Tigers fraudulently induced him to sign with the Astros.

They held that workers compensation law offered the exclusive remedy for a job injury in Michigan, adding that the law barred Brocail's negligence claims.

"The exclusive remedy provision also bars those claims that merely restate Brocail's negligence and medical negligence or malpractice claims," wrote appellate Justice Eva Guzman.

She raised a faint hope, writing that he deserved an exception to the exclusive remedy if the Tigers intentionally injured him as he claimed.

Then she dashed the hope by finding that Michigan fraud law voided any promise of medical cure unless it was in writing and signed.

"The statute does not apply solely to a promise to cure, but applies also to a promise to provide medical care with due care or in a non-negligent manner or to any promise relating to medical care," she wrote.

The same law barred Brocail's fraud claims, she wrote, because the representations he branded as false related to medical care and treatment.

Jeffrey Davis and Peter Scaff represented the Tigers.

Bruce Ramage, Levon Hovnatanian, Thomas Pirte, Michael Lowenberg and
Dale Jefferson represented Brocail.

Brocail missed three seasons but earned a job with the Texas Rangers in 2004. After two years with Texas, he pitched two years for the San Diego Padres.

With the Astros last year he struck out more than three men for every one he walked.

He finished with a flourish, holding opponents scoreless in his last eight appearances. He blew eight batters away while giving up just four hits and a walk.

Did the Supreme Court make the right call? Vote in our online poll on the setexasrecord.com home page!

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