This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence or even bad faith. See Tex. Civ. Prac. & Rem. Code § 41.003(b); see also, e.g., Acosta v. Amoco Oil Co., 978 F. Case 1:15-cv-00822-LY Document 92 Filed 09/22/17 Page 35 of 39 - 29 - Supp. 703, 705 (S.D. Tex. 1997) (the standard and quantum of proof required to recover punitive damages under Texas law is quite stringent) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21, 31 (Tex. 1994) (defining “gross negligence” as requiring the existence of an extreme risk and subjective awareness by the defendant as he proceeds with conscious indifference in the face of that risk). In this case, Plaintiff’s demand for punitive damages is based on Sandoz’ alleged gross negligence in failing to provide the “FDA-required Medication Guide.”

This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice. See Tex. Civ. Prac. & Rem. Code § 41.003(b); see also, e.g., Acosta v. Amoco Oil Co., 978 F. Supp. 703, 705 (S.D. Tex. 1997) (the standard and quantum of proof required to recover punitive damages under Texas law is quite stringent) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21, 31 (Tex. 1994) (defining “gross negligence” as requiring the existence of an extreme risk and subjective awareness by the defendant as he proceeds with conscious indifference in the face of that risk). In this case, Plaintiffs’ demand for punitive damages is based on Sandoz’ alleged gross negligence in failing to provide the “FDA-required Medication Guide.”

In addition, there is no evidence to suggest that Defendant Evans actually knew that his trailer was going to collide with Plaintiff's tractor "but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of others." See Tex. Civ. Prac. & Rem. Code §41.003(11)(A-B); Waldrip, 380 S.W.3d at 137. Case 3:16-cv-02081-D Document 15 Filed 06/07/17 Page 5 of 10 PageID 238 DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND SUPPORT BRIEF PAGE 6 #5354713v1 (79095.

Page 8 of 23 PageID 362 fees and costs in connection with its TUTSA, TTLA, and breach of contract claims, (see Doc. 1, INF 47-48) as well as exemplary damages under section 41.003 of the Texas Civil Practice and Remedies Code and section 134A.004(b) of the TUTSA, as well as any statutory damages permitted by law. See Doc. 1, TT 32, 38, 48 & 50; see also Tex. Civ. Prac. & Rem. Code §§ 41.003, 134A.004(b). More specifically, as to TeamLogic's misappropriation of trade secrets claim, TUTSA permits a plaintiff to recover "both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss."

Clear and convincing evidence of fraud, malice, and/or gross negligence is required. TEX. CIV. PRAC. & REM. CODE § 41.003(a). Under Texas law, “malice” is defined as a specific intent by the defendant to cause substantial injury to the claimant.

This burden of proof may not be shifted to Defendant and is not satisfied by evidence of ordinary negligence. TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(b). A plaintiff can recover exemplary damages for harm that results from gross negligence only by showing (1) the act or omission, when viewed objectively from defendant’s standpoint at the time it occurred, involved an extreme degree of risk, considering the probability and 27 Exhibit A: Pl.

In Texas, punitive damages may be awarded only if the plaintiff proves by clear and convincing evidence that the harm results from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem. Code § 41.003. “To recover punitive damages in a products liability case in Texas, a plaintiff must prove that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety.”

3 16 exemplary damages are recoverable when the claimant proves by clear and convincing evidence that it was harmed as a result of fraud. TEX. CIV. PRAC. & REM. CODE § 41.003(a)(1); Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 484 (Tex. App.—Fort Worth 2004, no pet.).

96. Plaintiffs’ injuries resulted from Defendant’s intentional acts, which entitle Plaintiffs to exemplary damages under Texas Civil Practice & Remedies Code Section 41.003(a). VIII.

v. Sunshine Kids Juvenile Prods., No. H-09-2496, 2009 U.S. Dist. Lexis 117986 *45-47 (S.D. Tex. Dec. 18, 2009)(citing TEX. CIV. PRAC. & REM. CODE § 41.003(a)). Based on the conclusory recitation of the elements of gross negligence set forth in the Complaint, it appears Plaintiff’s exemplary damages request is based on gross negligence.