Even if Plaintiff was somehow able to put forth such evidence in response to this Motion, she could not produce evidence that Sandoz acted “with conscious indifference to the rights, safety, or welfare of others,” and there certainly is not clear and convincing evidence that Sandoz was grossly negligent with respect to its amiodarone Medication Guides. Tex. Civ. Prac. & Rem. Code § 41.001(11)(B). Plaintiff cannot prove by “clear and convincing evidence” Case 1:15-cv-00822-LY Document 92 Filed 09/22/17 Page 36 of 39 - 30 - that Sandoz’ conduct warrants exemplary damages in this case, and summary judgment should issue on this claim.

Even if Plaintiffs were somehow able to put forth such evidence, there is nothing in Case 1:14-cv-00549-LY Document 134 Filed 11/15/16 Page 36 of 39 30 the record to suggest that Sandoz acted “with conscious indifference to the rights, safety, or welfare of others,” and there certainly is not clear and convincing evidence that Sandoz was grossly negligent. Tex. Civ. Prac. & Rem. Code § 41.001(11)(B). For these reasons, Plaintiffs cannot prove by “clear and convincing evidence” that exemplary damages are warranted, and summary judgment is appropriate.

Unlike the injuries in the cases cited 1 Defined as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2). 2 Dillard Dept. Stores, Inc. v. Silva, 148 S.W.3d 370 (Tex. 1997).

“Fraud” is defined as any type of fraud other than constructive fraud. See TEX. Civ. PRAC. & REM. CODE § 41.001(6). Case 2:15-cv-00713-JRG-RSP Document 63 Filed 05/02/16 Page 9 of 18 PageID #: 1374 -10- 2.

Case 4:14-cv-00665-KPJ Document 21 Filed 10/31/16 Page 23 of 25 PageID #: 196 DEFENDANT ELI LILLY AND COMPANY'S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT PAGE 24 magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk, but still proceeded with a conscious indifference to the rights, safety, or welfare of others. TEX. CIV. PRAC. & REM. CODE §41.001(11); Coastal Transp. Co. v. Crown Cent. Pet. Corp., 136 S.W.3d 227, 231 (Tex. 2004).

To prove gross negligence, a plaintiff must show: (1) an act or omission, when viewed objectively from the defendant’s standpoint at the time it occurred, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the defendant had actual, subjective awareness of the risk but proceeded with conscious indifference to the rights, safety or welfare of others. TEX. CIV. PRAC. & REM. CODE §41.001(11)(B); U-Haul Int’l v. Waldrip, 380 S.W.118, 137 (Tex. 2012).To

Texas law defines malice as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Tex. Civ. Prac. & Rem. Code § 41.001(7). To establish malice, the plaintiffs must show that Graco’s conduct involved an extreme risk of harm, and that Graco had actual awareness of the extreme risk.

THERE IS NO EVIDENCE OF MALICE There is no evidence that Chase acted with malice, a high standard. See TEX. CIV. PRAC. & REM. CODE § 41.001(7)(defining malice as “specific intent by the defendant to cause substantial injury or harm to the claimant”). Plaintiffs make the extraordinary claim that Chase does not care about its long-standing customers and values only excessive finance charges through unscrupulous credit practices.

2/SP/17910/0263/122316 nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others." TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11). But, to establish gross negligence, Plaintiff must prove by clear and convincing evidence that Defendant’s alleged conduct created an extreme risk of harm.

In re Jones, 445 B.R. 677, 720 (N.D. Tex. 2011) (citing Tex. Civ. Prac. & Rem. Code § 41.001). In its First Amended Petition, Atlas alleged that Crosby knew the eSight billing software did not perform as required by Atlas, but nevertheless caused Atlas to purchase the software at around $100,000.