What do you get when you combine a Swiss artist, a football field-sized museum gallery, and $300,000 worth of materials, including a two-story Cape Cod-style house, a movie theater, cinderblock walls, sea containers, a mobile home, multiple vehicles, and thousands of found objects? An opportunity to discuss the legal and ethical implications of exhibiting unfinished commissioned works.
Whatever the verdict on VARA, the notoriety of the “Mess at Mass MoCA” should serve as a reminder to museums that not only must they conduct their installation commissioning practices with due care and an eye to the law, but also with an expansive view of the applicable legal and ethical principles involved. Insisting on written commission agreements, and establishing clear museum policies on commissioned works which incorporate these legal and ethical principles, can help to manage expectations and minimize disputes. However, important as these practices are, the relationship between artist and museum involves more than a simple commercial business transaction. Ultimately the relationship between artist and museum depends on creating and maintaining an atmosphere of mutual trust and a willingness on the part of both to work out their differences when they arise.
It is perhaps equally important to observe that museums do not operate exclusively in courts of law. They also operate in the court of public opinion. Increasingly, the court of public opinion is international in scope. As a result, foreign legal concepts such as “moral rights,” which may not be recognized by American courts and thus do not impose any direct legal obligation on American museums, may nevertheless have an impact on how museums choose to conduct themselves.
Several notable examples of the limitations of the traditional American approach to copyright protection include mutilation of important sculptures by Alexander Calder, 20 Isamu Noguchi, and Richard Serra,21 and misattribution of a mural by William Smith22 among others. None of these artists had recourse under then-existing copyright laws.23 In response, beginning with California in 1979, ten states enacted laws to protect the attribution and integrity rights of artists.24 When the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works in 1989, U.S. copyright law nominally included moral rights by virtue of that treaty.25 The following year Congress specifically incorporated limited moral rights into American copyright law through enactment of the Visual Artists Rights Act of 1990 (“VARA”).
According to some commentators, the “Mess at Mass MoCA” could have been averted if the Museum had followed its standard policy of negotiating a written commission agreement. 56 It is true that commissioning museums are sometimes reluctant to enter into specifically negotiated contracts with artists for fear of turning the aesthetic process into a base contractual relationship. In the absence of clearly articulated expectations misunderstandings are bound to occur.57 However, according to a representative from Mass MoCA, the museum had negotiated a commission agreement, but Büchel had refused to sign it.58 The mistake, then, was to begin work on the commission before the agreement had been formalized. The failure to have a “meeting of the minds” should have signaled a problem with the artist-museum relationship.
In addition to individually negotiated contracts, museums should adopt clearly articulated policies setting out the rights, obligations and expectations of the museum in commissioning new works. Museum commissioning policies should be drafted to reflect the growing appreciation for the protection of the “moral rights” of artists, regardless of whether these rights are recognized under American law. 59 A clear commissioning policy will streamline the contracting process, allow the parties to enter into the commissioning relationship with a clear understanding of their respective responsibilities, and serve as a foundation for arbitrating disputes. While it is important to have such policies in place, they are not a panacea. Mass MoCA did have an extensive commissioning policy in place but it did not avert the dispute.
At its most basic, the dispute between Mass MoCA and Büchel appears to have been the result of a clash of personalities. Perhaps the true moral of the mess at Mass MoCA is that ultimately the relationship between artist and commissioning museum must be based on trust and mutual respect by both parties. Museums must appreciate and respect the sensitivities of the artist and their relationship to their work. Artists must understand and respect the needs of the museum and in particular its obligations to its funders. In the end, the importance of fair dealing by both parties is crucial.
But then, what interesting topics would lawyers have to talk about?
Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel, No. 3:07-cv-30089-MAP (D. Mass. filed July 12, 2007).
Randy Kennedy, Museum Can Show Disputed Artwork, Judge Rules, N.Y. Times, Sept. 22, 2007.
Martha Lufkin, Mass MoCA dismantles artist’s unfinished installation, The Art News pAp e r, Sept. 27, 2007.
William M. Landes, What has the Visual Artists Rights Act of 1990 Accomplished? The Law school of The University of chicago, John m. olin Law & economics working paper No. 123 (2d Series).
Ray Ming Chang, Revisiting the Visual Artists Rights Act of 1990: A Follow-up Survey About Awareness and Waiver, Texas intellecual property Law Journal, Vol. 13:129 (2005). Chang notes that the vast majority of artists still do not use written commissioning agreements.
“Only a few VARA cases have been fully litigated. Nonetheless there is strong anecdotal evidence that the existence of VARA has had significant effects in negotiating rights between an artist and patron and in settling disputes outside of court.” Jeffrey P. Cunard, Moral Rights for Artists: the Visual Artists Rights Act (CAA 2002) (retrieved from www.darkwing.uoregon.edu/~csundt/ copyweb/CunardCAA2002.htm).
The United States Constitution authorizes Congress to enact legislation “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.s. coNsT. art. I, § 8, cl. 8.
The fair use doctrine. 17 U.S.C. § 107.
Marie C. Malaro, A Legal Primer On Managing Museum Collections (2nd ed. 1995) at 151.
For example, as a “work-for-hire” pursuant to 17 U.S.C. § 201(b), or through assignment or license under 17 U.S.C. § 203.
17 U.S.C. § 109(b). For a discussion of the right of display, see Malaro at 168, fn 284.
Moral rights originated with the French legal concept of “le droit moral.” Economic rights are protected through the legal concept of “droit de suite” which allows artists to profit from the resale of their work. For a discussion of moral rights, see Malaro at 184.
Moral rights are based on “a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality as well as the integrity of the work, should therefore be protected and preserved.” Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2 nd Cir. 1996).
Id. at 133, fn 18 citing Am. JUr. proof of facts, 3D, Proof of Infringement of the Visual Artists Rights Act of 1990, § 2 (2003) (this concept is sometimes referred to as the “right of exposure”).
Caslon Analytics note moral rights cases (retrieved from www.caslon.com/au/mrcasenote1.htm).
Stephen E. Weil, Copyrights and Wrongs, museum News, July-Aug. 1993, at 40.
In 1958, an Alexander Calder black and white mobile which was donated to the Pittsburgh Airport was repainted green and gold, locked into place, and motorized contrary to the artist’s intentions. David M. Spatt, Moral Rights Survive the Sale and the Southern District (retrieved from www.artslaw.org/MORAL.HTM).
Id. In 1980 the Bank of Tokyo commissioned and then removed an Isamu Noguchi sculpture from its Manhattan lobby. In 1981, the General Services Administration removed Richard Serra’s “Tilted Arch” from the Federal Plaza in New York City.
In 1966 Maryland commissioned William Smith to create nine murals highlighting the state’s history, installed but altered the central panel and then refused to remove his name from the piece. Cynthia Esworthy, A Guide to the Visual Artists Rights Act (retrieved from www.harvard.edu/faculty/martin/art_law/esworthy.ht...). For other pre-VARA cases, see generally U.S. Copyright Office, Wiaver of Moral Rights In Visual Artworks, Executive Summary (October 24, 1996) (retrieved from www.copyright.gov/reports/exsum.html).
The states were California, Connecticut, Louisiana, Maine, Massachusetts, Pennsylvania, New Jersey, New Mexico, New York, and Rhode Island. See Chang, supra at 137.
The Visual Artists Rights Act (VARA), Pub. L. 101-650, 104 Stat. 5132, Dec. 1, 1990, codified in part at 17 U.S.C. §§ 106A et. seq.
Id. In Pollara v. Seymour the court held that a banner commissioned by a legal group was an advertisement because the content was determined by the group, the banner promoted a lobbying message, and was displayed next to the group’s information table. Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003).
The Copyright Act defines “work for hire” as “a work prepared by any employee within the scope of his or her employment.” or as a commissioned work provided that a written “work for hire” agreement has been signed by the artist. 17 U.S.C. § 101(1). In Carter v. Helmsley-Spear, Inc. the Court of Appeals overturned the trial court ruling, holding that the work in question was actually a work for hire which was not covered by VARA because, among other things, the artists were paid a weekly salary and received employment benefits. 71 F.3d 77 (2 nd Cir. 1996). For a detailed discussion of this case, see Landes, supra at 12.
Chang, supra at 135 citing h.r. re p. No. 101-514, at 11 (1990). Whether works of mixed media or recorded performance art constitute works of visual art has been left up to the courts under the Act, which potentially puts the courts in a problematic position of having to make aesthetic judgments.
Id. citing Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 534 (S.D.N.Y. 2001).
17 U.S.C. § 106A(a)(3)(A). For a discussion of the meaning of the terms “honor” and “reputation” which are derived from European concepts of moral rights, see Landes, supra at 5.
17 U.S.C. § 106A(a)(3)(B). “Recognized stature” refers to society’s interest in protecting important works of art. See Landes at 5. In Martin v. City of Indianapolis., the city demolished a sculpture without giving prior notice to the artist. The court allowed the use of newspaper articles and letters about the sculpture to conclude that the work was one of “recognized stature”. 4 F. Supp. 808 (S.D. Ind. 1998) affirmed 192 F. 3d 608 (7 th Cir. 1999).
17 U.S.C. § 106A(a)(3) applies only to intentional or grossly negligent actions.
17 U.S.C § 106A(c)(2). For a discussion of negligence, see Landes, supra at 3. See also Martin, 4 F. Supp. 808 (S.D. Ind. 1998). In Pavia v. 1120 Avenue of the Americas, the court denied a claim under VARA because the alleged alteration had occurred prior to the effective date of the Act. The court denied a claim under VARA based on the on-going display of the altered work, saying that VARA does not cover display rights. However, the court allowed a claim based on New York’s Artists Rights Act which does cover display rights and is not preempted by VARA. 901 F.Supp. 620 (SDNY 1995). In Pfaff v. Denver Art Museum, an artist claimed that the Denver Art Museum damaged her work when it improperly dismantled it after an exhibit. 94 Civ. 9271. See Malaro at 187, fn 351.
17 U.S.C. § 106A(c)(3). For example, an artist cannot base a VARA claim on damage to reputation as the result of a dimly lit gallery, or a poor quality photo of the work in a pamphlet or website. See Landes at 3. In Peker v. Masters Collection, an artist who objected to the way that his work was being reproduced by a licensee brought claims under both VARA and the Copyright Act. The court dismissed the VARA on the grounds that the modification was to the reproductions and not to the artist’s original work. The court did find for the artist based on the copyright claim of unauthorized reproduction. 96 F. Supp.2d 216 (E.D.N.Y. 2000). In Berrios Nogueras v. Home Depot the court denied a claim under VARA for reproduction of an artist’s work in brochures and advertisements, stating that the rights of attribution and integrity do not apply to reproductions of an otherwise protected work when used in connection with works specifically excluded from the definition of “works of visual art.” 330 F. Supp. 2d 48 (D.P.R. 2004).
17 U.S.C. § 106A(e). For sample VARA waiver forms, see Malaro at 196-7.
17 U.S.C. § 501(a) includes VARA violations among the actions that infringe a copyright. The Copyright Act allows for enhanced damages for willful or intentional violations. In Martin v. City of Indianapolis, the court held that although the destruction of the artist’s sculpture had been intentional, the defendant’s actions were careless rather than willful. 4 F. Supp. 808 (S.D. Ind. 1998).
17 U.S.C. § 301(f). See Chang, supra at 137. In Pavia v. 1120 Avenue of the America’s, the court addressed the question of preemption with respect to a provision of the New York Artist’s Rights Act. 901 F. Supp. 620 (SDNY 1995).
If the work cannot be removed from a building without damage, the building owner must obtain a written waiver from the artist. If the work can be removed without damage, the building owner must notify the artist and provide an opportunity for the artist to remove the work at her own expense. No waiver is required for works installed prior to June 1, 1991 with the artist’s consent. 17 U.S.C. § 113(d)(1) and (2). The Act also required the Copyright Office to establish a Visual Arts Registry that allows for the submission of statements regarding works installed in buildings. 17 U.S.C. § 113(d)(3). See 37 CFR 201 for procedures. As of October 31, 2007, only three such statements have been recorded.
Solenne Schmit, “Lots of money spent but no show” circA ArT mAgAz iNe, Oct. 31, 2007 (retrieved from www.recirca.com/ artnes/573.shtml). The work involved rebuilding a local movie theater within the museum, and filling the museum’s largest exhibit hall — football stadium-sized Building 5 — with massive found objects including an oil tanker, a smashed police car, a used mobile home, deactivated bomb shells, nine shipping containers, and a two-story house. The fuselage of 727 was also part of the planned installation. Geoff Edgers, “Behind doors, a world unseen – Dispute cloaks massive installation at MASS MoCA” N.Y. Ti m e s, Mar. 28, 2007.
For a detailed description of the dispute, see Schmit, supra. Museum staff actively participated in locating and purchasing the materials and constructing the elements of the work.
Framing the issue as whether the Museum had the right to exhibit the work (rather than whether the Museum had the right to destroy the work) allowed Mass MoCA to avoid what could otherwise have been considered a direct violation of VARA.
Büchel Memorandum of Law at 11.
Büchel Memorandum of Law at 18. Büchel also argued that mishandling of the installation by the Museum’s staff would expose them to liability under VARA and made arguments based on other provisions of the Copyright, including the right to display an original work under Section 109 of the Act.
For a discussion of “droit de divulgence” see text at page 3.
Martha Lufkin, Mass MoCA dismantles artist’s unfinished installation, The Art Newspaper, Sept. 27, 2007. See also Randy Kennedy, Museum can show disputed artwork, Judge rules, N.Y. Ti m e s, Sept. 22, 2007. As of this writing, no written opinion has been reported so this analysis is based on news reports of the oral argument and the Judge’s ruling from the bench.
17 U.S.C. 106A(c)(2). This exception is qualified in the case of “gross negligence.” The Act is silent on whether an intentional act of display would be actionable. However, a common-sense reading of this provision would suggest that it is meant only be applied to negligent, not intentional, acts.
As some critics have pointed out, high-profile artists like Büchel must also respect the views of museums and the public which fund their work. Schmit, supra. Some commentators have suggested that the entire dispute could have been avoided if a written agreement had been in place. See Sergio, Understanding MASS MoCA’s Actions, cL A Nc o July 28, 2007 (retrieved from www.clanco.com/ summary_judgment/understanding_mass_mocas_action_irrefle).The dispute clearly arose from a misunderstanding about the cost and scope of the project. See Christopher Benfey, “Mess MoCA” Slate, Sept. 25, 2007 (retrieved from www.slate.com/toolbar. aspx?action+print&id=2174656).
For a discussion about the importance of contracts for museum installations, and a sample contract, see mA L Ar o at 277-80.
Telephone interview with Kate Myers, Public Relations Mass MoCA, December 2007.
While VARA expressly allows artists to waive their VARA rights, museums should be cautious about taking this approach. Under European laws, artists cannot waive their moral rights.


Proving proper service by judicial notice in a default judgment case: potential pitfalls.
Issue Presented: Can proper service in a default judgment situation be proven by asking a court to take judicial notice of facts surrounding service?
Relevant Facts: The State of Texas filed a petition against Victor A. Charles seeking to establish paternity and to establish his child support obligations for J.M.H. Charles was incarcerated in a Texas Department of Criminal Justice facility at the time. A private process server delivered citation and a copy of the petition to a correctional officer at the facility. Charles did not appear at the hearing, and the trial court issued an order adjudicating Charles the father of the child and setting his child support obligations. Charles filed a motion for new trial, which was denied. Charles appealed, alleging that the court lacked jurisdiction over him because he was not properly served.
Legal Summary: Before a trial court may enter a default judgment, the record must affirmatively indicate that a defendant was properly served. A provision of the Texas Civil Practice and Remedies Code provides that the warden at a TDCJ facility may designate an employee to accept service of process on behalf of an inmate. However, in the case before it, the record contained no evidence that the TDCJ employee that accepted service on Charles’ behalf was designated by the warden of the facility to serve as an agent for service of process on inmates confined in the facility.
To fill the gap, the State asked the First Court to take judicial notice of two facts: 1) that the employee that received service works in the law library at the facility, and 2) that all law library employees have been designated by the warden to receive service of process on behalf of inmates. The First Court noted that it can only take judicial notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tex. R. Evid. 201. The court held that neither of the facts the State requested the court to judicially notice met that criteria; therefore, the court declined to take judicial notice of those facts. Accordingly, the State did not meet its burden to show proper service, and the default judgment against Charles was reversed.
Standing to file suit as assignee of a cause of action: when does the cause of action arise?
Issue Presented: When does a cause of action arise such that it may be assigned by one individual to another?
Relevant Facts: Before filing suit for breach of an earnest money contract, the executor of an estate executed an assignment of all causes of action under the contract to two trusts. The trusts then filed suit against the Magills. At trial, the trustees prevailed and were awarded a judgment against the Magills. The Magills appealed, asserting that the trusts lacked standing to file the suit.
Legal Summary: A plaintiff may acquire standing by the assignment of a cause of action. On appeal, the Magills alleged that, because the assignments took place before suit was filed, the assignments were void when executed. To be effective, the Magills argued, a suit must have been filed by the estate at the time of the assignment.
To prove standing under an assignment, a party claiming to be the assignee of the assignment must prove “(1) a cause of action existed that was capable of assignment and (2) the cause was in fact assigned to the party seeking recovery.” In examining whether a cause of action existed at the time of the assignment, the court first addressed the Magills’ argument that Section 12.014 of the Texas Property Code permits a cause of action to be sold only after it is filed with a court. The First Court held that the only purpose of that section was to require notice to parties already involved in a lawsuit of the sale of a cause of action by one of the parties to the suit. The provision was never intended to limit the sale of causes of action to existing claims in lawsuits. Thus, the court held, Section 12.014 of the Texas Property Code did not apply.
The court went on to note that, “[a]t common law, a ‘cause of action’ ordinarily consists of two distinct and separate elements, the primary right and duty of the parties respectively and the wrongful act or omission violating it.” Further, “‘a cause of action’ has also been said to consist of those facts entitling one to institute and maintain an action at law or in equity.” Accordingly, the court noted, a cause of action may exist before a suit is filed. Therefore, the court held that the fact that the estate had not filed suit before it assigned its cause of action to the trusts was not a ground to conclude that the trustees lacked standing.
Is an applicable statute of limitations tolled for each day a defendant is not present in the State of Texas?
Issues Presented: Does a resident defendant’s absence from the State of Texas for any period of time during which an applicable statute of limitations is running toll the running of the statute?
Relevant Facts: Medina sued Tate for injuries occurring on Tate’s premises. Medina filed his suit two years and one day following the date of the injury—i.e., the date after the relevant limitations period expired. Tate moved for summary judgment on limitations grounds. The trial court granted the motion.
The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.
The court began by noting that numerous courts from around the State of Texas have held for years that an applicable statute of limitations is tolled each time a defendant is absent from the State, and is tolled for the whole time that the defendant is outside the State. In fact, the court noted its own precedent so holding. Winston v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied).
Tate did not address the court’s prior precedent, but rather urged the court to adopt the reasoning of a 2010 case from the Fourteenth Court of Appeals, Zavadil v. Safeco Insurance Co. of Illinois, 309 S.W.3d 593, 596 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). In Zavadil, the Fourteenth Court relied on two Texas Supreme Court decisions concerning the tolling of the statute of limitations for non-resident defendants, Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008) and Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009), to hold that a resident defendant’s time outside the State of Texas does not toll any applicable statutes of limitations. The Zavadil court based its ruling on the notion that, even when resident defendants are physically absent from the State, they are still subject to personal jurisdiction in Texas and are always amenable to suit in the State.
Although it noted its desire to achieve uniformity with its sister court, the First Court held that it could not follow Zavadil. The First Court noted that the Fourteenth Court’s interpretation of Section 16.063 “essentially appends to the statute the additional provision, ‘unless the person is subject to personal jurisdiction in Texas and amenable to service.’” This addition, the First Court held, would essentially render Section 16.063 meaningless. Accordingly, the Court held that the statute of limitations was tolled for the time Tate was out of the State of Texas, and that Medina’s action was not barred by limitations.
Calculation of prejudgment interest: when does the meter begin to run?
Issue Presented: When a litigant files a lawsuit and subsequently added additional causes of action, and at trial recovers only on the subsequently added causes of action, what is the proper date on which to begin the calculation of prejudgment interest?
Relevant Facts: Carswell sued Christus on June 7, 2005 for medical malpractice allegedly committed against her late husband. After conducting discovery, on January 5, 2007, Carswell amended her petition to add post-mortem claims against Christus for improper handling of her husband’s heart, body, and other organs. At trial, the jury awarded Carswell damages for her post-mortem claims only. In the final judgment, the trial court awarded prejudgment interest accruing from June 7, 2005, the date the suit was initially filed.
Legal Summary: On appeal, Christus challenged the date on which the trial court began the calculation of prejudgment interest, arguing that the proper date on which to begin the calculation was January 5, 2007, the date on which the post-mortem claims were added. The court began by noting the purposes behind prejudgment interest, namely to compensate plaintiffs for lost use of the money due between the time of filing and judgment, as well as to encourage settlements. Prejudgment interest is not awarded to punish the defendant.
Next, the court noted two 2012 cases from the Fourteenth Court of Appeals holding that where a plaintiff amends its pleadings to add claims on which it is eventually entitled to prejudgment interest, the calculation of prejudgment interest begins from the date the amended pleading was filed. Those decisions noted that the two main purposes underlying prejudgment interest awards are not served by permitting the interest to be calculated from the date of the initial filing of the suit. A plaintiff is not deprived of money if he is not awarded interest prior to the date the claim on which an award of prejudgment interest is based. Further, and perhaps more importantly, the goal of efficient settlement cannot be served by awarding prejudgment interest before a claim is filed, namely because a defendant is not aware of the claim and cannot attempt to settle it. The court agreed with the holdings of the Fourteenth Court of Appeals and held that an award of prejudgment interest is calculated from the date on which the claim supporting the award of prejudgment interest is filed.
Issue Presented: The issue presented in this appeal was whether a series of letters filed of record as an alleged Rule 11 agreement together constitute an enforceable contract.
Relevant Facts: Zachary Coleman and John Coleman (collectively, the "Colemans") filed suit to recover damage allegedly sustained in a motor vehicle accident with Christopher DeWayne Reich ("Reich"). On July 14, 2011, the Colemans' attorney sent a letter to Reich, offering to settle their claims for $8,000 and $4,500, respectively. The offer required a response by July 21, 2011.
On July 20, 2011, Reich responded, offering to pay $8,000 to settle Zachary's claim and $4,500 to settle John's claim, but adding that no settlement checks would be issued until the Colemans executed settlement documents and confirmed that no outstanding liens existed. Reich's letter included a signature line for the Colemans' attorney to indicate acceptance, which was never signed.
Thereafter, John executed a formal settlement agreement, but Zachary refused to agree to settle his claim, whereupon Reich moved for summary judgment on a counterclaim for breach of contract, alleging that the parties correspondence constituted an enforceable Rule 11 agreement. Zachary responded that Reich's July 20 letter was not an acceptance, but only a counter-offer, which Zachary was free to reject. The trial court agreed with Reich, entering summary judgment in his favor. After denial of a motion for new trial, Zachary appealed.
Outcome/Holding: The Court held that, because the July 20 letter included additional terms not found in the July 14 letter, referred to the fact that Reich was making an offer to settle, and further contained the unexecuted signature line, the July 20 letter was ambiguous as to whether Reich intended to accept Zachary's offer or to propose a counter-offer. Consequently, the Court concluded that the trial court had erred in granting summary judgment for Reich, and reversed and remanded.
Issue Presented: The issue presented by this appeal was whether a general warning to "don't slip" was sufficient to discharge the duty of the owner or occupier of land to an invitee.
Relevant Facts: Appellant Christopher Norman is a mail carrier whose walking route included Christopher and Lisa Henkel's neighborhood. On January 9, 2010, an abnormally cold day in Houston during which there was a hard-freeze warning in effect until the following day, Norman delivered mail to the Henkels, handing the mail directly to Lisa, who was standing at the front door. Lisa contended that she cautioned Norman to be careful and specifically mentioned the icy conditions. Norman contended that Lisa never said anything to him about ice on the Henkels' premises and saw no ice as he approached to deliver the mail, but acknowledged that she said, "[d]on't slip," after he gave her the mail. As he walked away, Norman slipped and fell on a patch of ice on the Henkels' walkway. Norman sued the Henkels for premises liability, negligence and gross negligence, seeking damages for injuries sustained in the fall.
The Henkels moved for summary judgment, on the ground that "all evidence presented by either side shows that Defendant Lisa Henkel explicitly warned Plaintiff regarding potentially icy conditions just seconds before he fell." The trial court granted summary judgment, and Norman appealed.
Outcome/Holding: The Court reversed and remanded, concluding that the phrase "don't slip" was too general an instruction to constitute an adequate warning of the slippery condition, noting the public policy concerns that might be raised by an alternate holding. Justice Jeffrey V. Brown dissented, concluding that, under the circumstances of the event (the generally icy conditions, the hard-freeze warning, etc.), a reasonably prudent person in Norman's position would have understood the warning to relate to ice as the cause of slippery conditions, and Lisa Henkel's warning was therefore adequate.
Issue Presented: The issue presented by this consolidated interlocutory appeal was whether the City of Houston, as the owner and operator of Bush Intercontinental Airport ("the Airport"), waived immunity under the Texas Tort Claims Act (TTCA) in connection with an accident involving the automated people mover (APM) system at the Airport in which several of the Appellees were injured.
Relevant Facts: The APM is a remotely controlled, above-ground train that transports passengers along elevated guideways from terminal to terminal. Because Houston and its employees do not possess the knowledge to operate and maintain the APM, Houston has always retained a third-party to perform these functions. For all times relevant, that third-party operator was Johnson Controls, Inc., one of the appellees.
At the time of the incident, Houston had decided to expand the APM system at the Airport to include an additional guideway connecting terminals 2 and 3, said expansion being referred to as the "Phase 3 Project." Houston contracted with Continental Airlines, Inc. to manage the Phase 3 Project. Two of the companies involved in the Project were Post, Buckley, Schuh & Jernigan, Inc. (PBS&J) and Webber, L.L.C. (Webber). Once the new guideway was substantially complete, it was turned over to Johnson Controls for inclusion under its existing contract to operate and maintain the APM system.
On October 26, 2010, James Farr, a Johnson Controls employee, escorted appellee Juan Cordero and two other Webber employees into an area of the new guideway where trains were not allowed due to the ongoing work. They were later joined by appellee Travis Turner, an employee of PBS&J. Subsequently, Farr left the worksite. At some point thereafter, Turner and Cordero walked onto a part of the guideway where the trains were running and were struck, Turner dying as a result of his injuries and Cordero suffering incapacitating injuries. Appellees filed suit.
At the trial court, Houston filed a plea to the jurisdiction, asserting that the TTCA did not waive Houston's sovereign immunity because no Houston employee was alleged to have used or operated the train in a negligent manner. The evidence presented showed that, although Houston owned the APM system, neither it nor its employees had the knowledge or expertise to operate it on a day-to-day basis. The evidence further showed that, under its contract, Houston (a) could give Johnson Controls permission to operate the system with a reduced number of trains and could shut down the system entirely by cutting the electrical feed for the Airport, but that Houston had no ability to directly affect the daily operation of trains on the APM guideway, for which Johnson Controls personnel were required; and (b) had input into the formulation of policies and procedures related to the APM guideway, but that Houston never provided Johnson Controls with a set of safety rules and regulations for the APM system, as Johnson Controls was given the authority to enact site policies and procedures without obtaining Houston's approval. It was also undisputed that the guideway was elevated, and could only be accessed by an elevator that was under the exclusive control of a Johnson Controls employee. Nevertheless, the trial court denied Houston's plea, and this appeal followed.
Outcome/Holding: The Court held that the TTCA did not waive Houston's immunity because the evidence showed that neither Houston nor its employees had the ability or contractual authority to directly control the operation or use of the APM trains. Though the Court noted that the evidence indicated that Houston had the contractual authority to instruct Johnson Controls to hold trains in the station and had participated in the formulation of the policy governing access to the APM guideway, this was insufficient to establish the level of control necessary to make Johnson Controls an employee, and thus subject Houston to waiver of immunity under the TTCA. As it concluded that remand would be futile, the Court reversed and rendered, dismissing appellees' claims against Houston.
Issue Presented: The issue presented in this appeal was whether the trial court erred in granting summary judgment in favor of the College of the Mainland (the "College") as to Navy's claims for disparate-treatment racial discrimination and retaliation under the Texas Commission on Human Rights Act (the "Act").
Relevant Facts: Navy, an African-American professor at the College who was terminated, sued the College, alleging that his firing was due to racism on the part of his superiors, and constituted disparate treatment and retaliation in violation of the Act. The College moved for summary judgment.
The summary judgment evidence showed that Navy was terminated because he failed to positively respond to disciplinary intervention, specifically by making unsupported allegations against colleagues, delaying answering students' correspondence, and exhibiting insubordinate behavior. In addition, the evidence showed that the quality of Navy's online courses was significantly substandard, he incorrectly calculated students' grades over a multiyear period, he inappropriately assigned an excessive number of incomplete grades, and his performance had been the subject of an excessive number of student complaints. Further, the evidence showed that a high-school principal whose students took classes at the College specifically requested that her students be assigned to any instructor other than Navy. The evidence also demonstrated that Navy had engaged in several activities protected under the Act, including filing numerous grievances and complaints against colleagues and against the College itself. Prior to his discharge, Navy was given a negative peer review evaluation in 2007, in which his colleagues gave him low scores. He was also denied tenure on multiple occasions, his tenure file being disorganized and containing multiple instances of plagiarism, as well as numerous spelling and grammatical errors. The evidence further showed that Navy had been unreceptive to feedback by the ad hoc review committee, which questioned Navy's professional judgment and ethics because, among other things, Navy included an e-mail in his tenure file which was, in fact, two separate e-mails that Navy had combined so as to change their meaning.
The trial court granted the College's motion, and Navy appealed.
Outcome/Holding: The Court addressed Navy's disparate-treatment and retaliation theories separately. As to both theories, the Court noted that it was undisputed that Navy was a member of a protected class and had engaged in protected activities (e.g., filing grievances, filing claims with the Texas Workforce Commission, etc.). As to Navy's disparate-treatment theory, the Court noted that the Act does not address every decision made by employers that arguably might have some tangential effect upon employment decisions (e.g., disciplinary filings, supervisor's reprimands, and even poor performance evaluations), but rather addresses only "ultimate employment decisions", such as those that involve hiring, granting leave, discharging, promoting, and compensation. Accordingly, the only, ultimate employment decision presented by Navy was his termination. The Court held that the College had presented ample evidence of non-discriminatory bases for Navy's termination, and that, for his part, Navy had failed to present evidence of any professor at the College with a similar history of misconduct and performance issues that had received different treatment. As to his retaliation claim, although the Court noted that retaliation claims are broader in scope than disparate treatment claims, encompassing decisions beyond merely "ultimate employment decisions," they also require that the claimant demonstrate that the adverse employment decision would not have occurred "but for" his engaging in the protected activity and that the adverse decision would deter a reasonable person from engaging in the protected activity. In this case, the adverse employment decisions cited by Navy included negative peer review evaluations and denials of tenure, for which the Court held that the record contained ample evidence of alternative bases for the adverse decisions (Navy's misconduct, history of complaints about his performance from within and outside the College, the poor state of his tenure file, etc.). Moreover, the Court concluded that the adverse decisions made by the College were not such as would deter a reasonable person from filing grievances, etc., and, in fact, the evidence showed that they had not deterred Navy himself. Accordingly, the Court concluded that Navy had failed to raise a genuine issue of material fact as to either of his claims, and it therefore overruled Navy's issues and affirmed the summary judgment of the trial court.
Justice Christopher filed a concurring opinion, as she determined that Navy's Pleadings raised an additional claim beyond disparate-treatment and retaliation: that the College committed discrimination in Navy's discharge. However, because Navy failed to present any evidence that he was replaced by anyone outside of his protected class, Justice Christopher found that he had likewise failed to raise a fact issue as to discrimination.
Issue Presented: The issues presented in this appeal included, but were not limited to, (1) whether the statute of frauds barred the appellees' breach of contract claim because a promise to make a contribution to a limited liability company is unenforceable unless it is in writing, see TEX. BUS. ORG. CODE § 101.151; (2) whether evidence that the money in one party's account all came from a second party, and that all of the second party's money came from a third party, is legally sufficient to support a conversion claim by the third party against persons who took the money out of the account of the first party; and (3) the effect of the omission of a question or instruction on justifiable reliance as to the sufficiency of the evidence for a claim of fraud.
Relevant Facts: Appellee Grover and a partner wrote a screenplay for a movie called 97 Minutes, featuring a plot involving a terrorist attack, and assigned the rights to the screenplay to Grover's company, appellee PAV Entertainment, L.L.C. ("PAV"). In November 2006, Grover formed appellee 87 Minutes Productions, L.L.C. ("87 Minutes") for the purpose of producing the film, naming PAV as the registered agent for 87 Minutes and causing PAV to assign the rights to the screenplay to 87 Minutes. He also hired Maureen Doherty as 87 Minutes' attorney. At all times relevant, Doherty also represented appellant Sutapa Ghosh ("Ghosh") and his company, Cinemawalla, Inc. ("Cinemawalla").
Over the course of the next year, Grover, PAV and 87 Minutes (collectively, "Appellees") secured a written commitment from William Hurt, an Academy-Award winning actor, to star in the film, as well as written commitments from a director, casting director and a director of photography. By the end of 2007, however, Appellees had failed to secure financial backing for the film. At around that time, Doherty suggested that Grover contact Ghosh, who was attempting to produce a film called Ex-Pats that similarly featured a terrorist attack as a key plot point. Doherty explained that Ghosh had secured financing for his project in the form of $4 million in escrowed funds, but had not been able to obtain commitments from actors, directors or other necessary personnel. Grover met with Ghosh, who verified Doherty's statements. The two then agreed to combine the resources of their respective companies and form Cinemawalla 97 Minutes, L.L.C. ("the LLC") for the purpose of producing 97 Minutes, and filed a certificate of formation naming 87 Minutes and Cinemawalla as the LLC's members. the certificate was silent as to any capital contributions to be made in exchange for those membership interests. After opening a bank account in the LLC's name, Grover and Ghosh orally agreed that, in exchange for their respective membership interests, (a) 87 Minutes would contribute the rights to the screenplay for 97 Minutes, as well as the written commitments obtained by Appellees, plus an additional $1 million -- $600,000 cash and a $400,000 credit; and (b) Ghosh would attempt to modify Cinemawalla's existing financing contract and have the $4 million escrowed funds released for the production of 97 Minutes instead of Ex-Pats.
Grover gave Ghosh the business plan for 97 Minutes to submit to her financier. Over the next several months, Ghosh repeatedly assured Grover that the financier had agreed to the reallocation of the escrowed funds to the 97 Minutes project, and would release the first portion thereof at the end of April, but would need proof of 87 Minutes' capital contribution before it would authorize the release. Accordingly, Grover wired an additional $633,979 from 87 Minutes' account to the LLC's account. With Grover's approval, Ghosh then wrote herself a check from the LLC's account for preproduction expenses that she had incurred, but for which she could not otherwise reimburse herself until the first portion of the escrowed funds was released. Over the course of that month, the parties used funds from the LLC's account to buy an airplane that was to be the primary set of the film, pay for a trip to Argentina to scout locations, and to pay various personnel, including $375,000 to pay Hurt half of the fee he required to secure his commitment to the film. The parties' relationship subsequently deteriorated, and, on April 28, Ghosh told Grover that the financier had backed out.
In July 2008, Appellees sued Ghosh and Cinemawalla (collectively, "Appellants"), alleging, among other things, breach of contract, conversion, and common-law fraud. Following a trial on the merits, a jury returned a verdict in the Appellees' favor on each cause of action.
On appeal, Appellants argued, in part: (1) the statute of frauds barred the breach of contract claim; (2) the evidence was legally insufficient to support the jury's finding on the conversion claim; and (3) the trial court erred in entering judgment in Appellees' favor on the fraud claim because the evidence conclusively established that Grover's reliance on Ghosh's alleged misrepresentations was unjustifiable.
Outcome/Holding: The Court reversed in part and remanded. The Court concluded that the statute of frauds barred enforcement of Ghosh's oral promise to secure the $4 million escrowed funds for the project. Addressing Grover's argument that Ghosh had waived the statute of frauds as an affirmative defense by failing to request a jury instruction on it, the Court concluded that the issue had been conclusively established by the evidence, and the defense was therefore not waived, consistent with the Court's prior holding in XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 632 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). The Court further concluded that the evidence was legally insufficient to support Grover's conversion claim, as the evidence showed that he no longer had the immediate right of possession, having lost upon deposit of the funds into 87 Minutes account, which, in turn, lost any claim for possession of the funds upon their deposit into the LLC's account. Disposing of Grover's argument that he retained a right to immediate possession because he was entitled to rescind the fraudulently induced oral contract, the Court noted that there was no legally enforceable contract to rescind. Turning to Ghosh's legal sufficiency point of error, the Court noted that Ghosh had not requested a jury instruction on the issue of justifiable reliance. Therefore, consistent with the Court's prior holdings in Yeng v. Zou, No. 14-11-00819-CV, 2013 WL 3864320 (Tex. App.—Houston [14th Dist.] Jul. 25, 2013, no pet. h.), and Energy Maint. Servs. Grp. I, LLC v. Sandt, 401 S.W.3d 204 (Tex. App.—Houston [14th Dist.] 2012, pet. denied), because the jury charge did not require Appellees to prove justifiable reliance, and legal insufficiency of the evidence on that issue would not prevent the trial court from rendering judgment on the fraud claim. Accordingly, the Court overruled Ghosh's legal sufficiency point of error as to the fraud claim.


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Nicorandil’s simple chemical name is N-(2-Hydroxyethyl) –nicotinamide nitrate.
Clinical studies employing exercise tolerance test as the major end point show that nicorandil at doses 10 to 20 mg twice daily is as efficacious as other antianginal agents.
(including diltiazem , nifedipine , isosorbide , mononitrate , isosobide dinitrate, propranolo, metprolol and atenolol ) in treating patients with chronic stable angina. Most of the studies which are controlled and comparative were of limited duration (3 months) which included anginal attacks patients less than five per week.
Limited data’s are only available on the influence of nicorandil on myocardial infarction and mortality .When nicorandil is added to a beta-blocker or calcium channel blocker , increased antianginal efficacy is observed but not of momentous.
Although no strictly comparative studies of different dosing frequencies were performed but some studies did investigate three times daily dosing with nicorandil and it did not appear to present any advantages over twice daily dosing.
Some long term uncontrolled study reveals that nicorandil maintains its efficacy with no evidence of tolerance developing up to two years after commencement of therapy.
Nicorandil relaxes the muscles in the walls of the veins and arteries which condense the workload of the heart and augment the supply of oxygen to the heart muscles.
It is used for the prevention of angina. It is usually used when angina can not be controlled by other drugs and is prescribed as an additional treatment.
Headaches – this usually stop when the body fiddle with tablets.
It can also cause flushing.
Avoid driving or operating machineries when you have started to take nicorandil until you know that you are confident.
Nicorandil, an approved drug for the treatment of ischaemic heart disease, is said to have dual properties. The intrinsic mechanism of drug (selective activation of K+ ATP channels at the sarcolemmal and mitochondrial level) allows coronary and peripheral vasodilatation with subsequent reduction of preload and afterload.
The primary end-point (a composite cardiac death, myocardial infarction, unplanned hospital admission for chest pain) occurred considerably less in the nicorandil (13.1%) and in the placebo group (15.5%, P= 0.014). Only about 50% of patients were on ?-blockers and ‘unplanned hospital admission for chest pain ‘is a very weak end-point despite the randomized character of the trial.
Blockers for angina relief in patients with stable angina pectoris.
A search of the literature was undertaken to determine the depth of knowledge available pertaining to the subject under examination. The following strategies were employed.
A search of data bases in pub med ,Medline , Cinahl , American Heart association journal ,Eur Heart Journal, the Second department of internal medicine , Hirosaki University school of Medicine , Hirosaki , Japan research papers , Am heart J from pub med to for the past five years with the words “ Nicorandil “ was made to determine the role of nicorandil in myocardial infarction .
A review of issues from the relevant journals such as pub med , AHA ( American Heart Association ) & Eur ( European ) Heart Journal.
Backward chaining from the articles obtained.
A search on relevant book and periodicals.
The studies based on efficacy of nicorandil in ischaemic preconditioning in the human angioplasty model and impact of drug on left ventricular filling pressures in exercising patients with hypertrophic cardimyopathy were taken to prove the efficacy of nicorandil in the prevention and cure of myocardial infarction .
Further the role of Nicorandil in improving cardiac function and clinical outcome in patients with acute myocardial infarction undergoing primary percutaneous coronary intervention and role of inhibitory effect on reactive oxygen species formation were also taken to establish nicorandil is the best drug for controlling the MI diseases.
The reviewed literature will consider the strength of evidence using a critical analysis framework as shown below .The role of evidence based medicine within this field and how it can be used to inform clinical practice will be evaluated.
The efficacy of drug is revealed in both trials characterized by a heavy, ‘high –tech ‘methodology applied to small study cohort.
Matsue et al. have demonstrated by simple ST-segment analysis that nicorandil enhances pre-conditioning in the human PTCA model.5 ( percutaneous trnasluminal coronary angioplasty ) but the potential contribution of collateral blood flow was not satisfactorily assessed.
In this present study , a homogenous group of 44 patients with isolated proximal LAD ( ( (Left anterior decending artery stenosis ) stenosis and normal left ventricular function , was randomized to intravenous nicorandil or saline prior to angioplasty.8 Further to ST-segment analysis ,99mTc tetrofosmin SPECT acquisition was performed at the end of the PTCA as a surrogate for myocardial perfusion to the related myocardium. A trend but no major flow increase to the ischemic bed was found together with a noteworthy attenuation of ST-segment elevation in the nicorandil group. This demonstrates that nicorandil seems to possess a cardio protective effect independent of myocardial (collateral) blood flow to the ischaemic bed.
A continuous increase pressure was observed in patients with severe hypertrophy, while those with mild hypertrophy experienced a biphasic pattern with an initial increase following by a decrease prior to peak exercise. Both groups could further be distinguished by more severe Thallium -201 scintigraphy perfusion defects in case of severe hypertrophy. The biphasic pattern in the mild hypertrophy group was abolished by pre-treatment with propanolol, suggesting a ?-adrenergic medicated coronary vasodilatation induced by exercise. Vasodilatation may prevent myocardial ischaemia in a vascular bed that has grown in proportion to the hypertrophy, therefore preventing further rise in filling pressures.
Without providing clear anatomic cut-off values to predict these haemodynamic alterations, the authors have now conducted a second trial. A total of 23 patients with non-obstructive hypertrophic cardio-myopathy were randomized to pre-treatment to nicorandil or propanolol prior to any knowledge of haemodynamic conditions induced by exercise.
Both above research studies revealed that nicorandil may act beneficial at the myocardial cellular level. The first research shows that a cardio protective effect during angioplasty independent of collateral flow to the ischaemic bed.Nicorandil is being prescribed to patients with an anticipated high interventional risk. Further nicorandil should more extensively be investigated during reperfusion strategies for acute myocardial infarction.
Nicorandil improves cardiac function and clinical outcome in patients with acute myocardial infarction undergoing primary percutaneous coronary intervention: role of inhibitory effect on reactive oxygen species formation.
*The team examined the efficacy of nicorandil, a hybrid of K (ATP) channel opener and nicotinamide nitrate, on reactive oxygen species (ROS) formation and clinical outcomes after primary percutaneous coronary intervention (PCI) AMI.
Methods: 58 patients with AMI were randomized into control (n=25) and nicorandil pretreatment groups (n=33) .In nicorandil group, nicorandil was administered just after admission.ROS formation was assessed and compared between two groups. Cardiac function and the incidence of reperfusion injury and cardiac events were also compared.
Urinary 8-epi –PGF2alpha excretion was increased two fold at 60 to 90 minutes after PCI in the control group, where as it was unchanged in after PCI in the Nicorandil group.
The incidence of no-reflow phenomenon was lower in the nicorandil group than in the control group.
Left ventricular ejection fraction and cardiac index at six months were higher in the nicorandil group than in controls.
Plasma brain natriuretic peptide level at 6 months was lower in the nicorandil group.
Inhospital cardiac events and rehospitalization were lower in nicorandil group than in controls.
myocardial infarction. Suppression of reactive oxygen species formation may be involved in the mechanism.
Nicorandil reduced coronary events in stable angina.
5126 UK patients ( mean age 67 years ,76% men ) who had stable angina with a history of myocardial infection , coronary bypass surgery , a definite diagnosis ( by angiography ) of coronary heart diseases ( CHD ) , or a documented positive result on the exercise test .Patients with CHD or positive result on the exercise test were also required to have additional risk factors , including left ventricular ejection fraction? 45% , echocardiographical end –diastolic dimension >55 mm , type 1 or type 2 diabetes .Patients receiving treatment with a sulfonylurea were excluded .
Patients were allocated to nicorandil, 20mg daily (n=2565). All patients received standard antianginal treatment.
Findings :12 In patients with stable angina and additional risk factors, nicorandil was more effective than placebo for reducing coronary events.
Background: Intravenous nicorandil has been reported to ameliorate early functional and clinical problems in patients with acute myocardial infarction.
This follow-up study to 5 years of a randomized , double-blinded trial conducted among 368 patients with first ST-segment –elevation myocardial infarction undergoing percutaneous coronary intervention ( PCI) .They were randomly assigned to receive 12 mg of nicorandil or a placebo intravenous just before reperfusion..
Analysis showed the incidence of cardiovascular death or rehospitalization for congestive heart failure after PCI as well as various aspects of epicardial flow and micro vascular function.
The addition of intravenous nicorandil to PCI leads to beneficial clinical outcomes and prevents cardiovascular events of long duration and death in patients with ST-segment –elevation of myocardial infarction.
Question: In acute Myocardial infarction, does nicorandil, given orally, intravenously or standard therapy alone lead to fewer adverse cardiac events and lower mortality?
If a patient with consistent chest pain for the last two hours and treatment has been given on aspirin, oxygen, clopidogrel, morphine, thrombolysis and buccal glyceryl trinitrate (GTN) and despite of this patient is not recovered. Whether Nicorandil will have beneficial effect in this acute situation rather than GTN: IV.
In total, nine papers were identified out 248 papers and eight trials investigated nicorandil in acute myocardial infarction (AMI) and PCI. One trial investigated nicorandil in AMI treated medically.
Nicorandil should be strongly considered in the emergency setting for patients with acute myocardial infarction.
All the above studies have confirmed that Nicorandil is one of the best drug for controlling the myocardial infarction.
Under evidence type -1, it is revealed that nicorandil may act beneficial at the myocardial cellular level. Nicorandil is being prescribed to patients with an anticipated high interventional risk. Further nicorandil should more extensively be investigated during reperfusion strategies for acute myocardial infarction.
Under evidence type -2, it is divulged that Nicorandil enhances the cardiac functions and clinical results in patient with acute Myocardial infarctions. Suppression of reactive oxygen species formation may be involved in the mechanism.
Under evidence type-3, it is disclosed that in patients with stable angina and additional risk factors, nicorandil was more effective than placebo for reducing coronary events.
Under evidence type -5, it is recommended that Nicorandil should be strongly considered in the emergency setting for patients with acute myocardial infarction.
Nicorandil, being a potassium channel activator and beta –blockers do have some side effects also like headache, flushing, dizziness and indigestion, inability to exercise, claudication and impotence.
In view of the many advantages as per the evidences illustrated above, nicorandil is being prescribed by the cardiologists nowadays in case of stable angina and myocardial infarction.
IONA – Impact of Nicorandil on Angina .
3 Article Title – Health news in Brief. Newspaper Title – Sunday Mirror .Publication date: May 10, 1988.Page No: 39.
5. The IONA Study group. Effect of nicorandil coronary events in patients with stable angina. The impact of nicorandil in Angina (IONA) randomized trial .Lancet 2002; 359:1269-75.
6.Matsuo H,Watanabe S, Segawa T et al .Evidence of Pharmacological preconditioning during PTCA by intravenous pre-treatment with ATP –sensitive K+channel opener nicorandil . Eur Heart J 2003 : 2003:04 :1296-303.
Izawa H.Iwase M, Takeichi Y .et al . Effect of nicorandil on left ventricular end-diastolic during exercise in patients with hypertrophic cardiomyopathy .Eur Heart J 2003;24:1340-8.
*By Ono H and others, the Second department of internal medicine, Hirosaki University school of Medicine, Hirosaki , Japan – Am Heart J 2004 Oct ,148 ( 4) : E15.
13. Hideki Ishi , MD & Others from Department of Cardiology, Nagoya University Graduate of School of Medicine.
15.REPORT BY – RICHARD BODY – CLINICAL RESEARCH FELLOWINSTITUTION ; MANCHESTER ROYAL INFIRMARY.
17.Pieper GM;Gross GJ Anti –free-radical and neutrophil –modulating properties of the nitro vasodilator , nicorandil Cardiovascular Drugs and Threapy.1992 : 6 (3) : 225-232.
18.Ce M; Jennings RB; Reimer KA Preconditions with ischaemia : a delay of lethal cell injury in ischaemic myocardium Circulation 1986;74;1124-1136.
19.Sakamoto T; Kakita K; Miyamoto S; Kojima S;Sugiyama S; Yoshimura M; Ogawa H . Effects of Nicorandil on endogenous fibrinolytic capacity in patients with coronary artery disease. Circulation Journal 2004 .68;232-235.
20.Koboyashi Y;Goto Y; Daikoku S; Itoh A ; Miyazaki S ; Ohshima S ; Nonogi H ; Haze K . Cardio protective effect of intravenous nicorandil in patients with successful reperfusion for acute myocardial infarction, Japanese Circulation Journal 1998;62.183-189.
21.The IONA Study Group effect of nicorandil on coronary events in patients with stable angina :The impact of nicorandil in Angina ( IONA ) randomized trial The Lancet 2002;359;1269-1275.
22.Ito H; Taniyama Y; Iwakura K; Nishikawa N; Masauyama T; Kuzuya T; Hori M;Higashino Y; Fuji K;Minamino T; Intravenous nicorandil can preserve micro vascular integrity and myocardial viability in patients with reperfused anterior wall myocardial infarction .Journal of the American College of Cardiology .1999;33(3);654-660.
23.Sen S; Neuss H ; Berg G; Nitsche K; Goddemeier T; Doring GA Beneficial effects of nicorandil in acute myocardial infarction: a placebo-controlled, double blind pilot safety study .British Journal of Cardiology ,19985(4):208-220.
24.Ono H; Osanai T; Ishizaka H; Hanada H ; Kamada T; Onodera H ; Fujita N ; Sasaki S ; Matsunga T; Okumara k; Nicorandil improves cardiac function and clinical outcome in patients with acute myocardial infarction undergoing primary percutaneous coronary intervention : Role of inhibitory effect on reactive – American Heart Journal 2004;148.e15.
26.Ikeda N ; Yasu T; Kubo N; Hashimoto S ; Tsuruya Y; Fujii M; Kawakami M; Saito M ; Nicorandil versus isosorbide dinitrate as adjunctive treatment to direct balloon angioplasty in acute myocardial infarction .Heart 2004 ; 90;181-185.
27.Sujimoto K ; Ito H ; Iwakura K; Ikushima M; Kato A ; Kimura R; Tanaka k ; Massuyama T; Ogihara T; Kawano S; Fujii K .Intravenous nicorandil in conjunction with coronary reperfusion therapy is associated with better clinical and functional outcomes in patients with acute myocardial infarction. Circulation Journal 2003;67;295-300.
28.Nameki M: Ishibashi I ; Miyazaki Y ; Sakai Y;Namikawa S ; Kuriyama N ; Komiyama N ; Tsunoda K ; Masuda Y ; Komuro I .Comparison between nicorandil and magnesium as an adjunct cardio protective agent to percutanous coronary intervention in acute anterior myocardial infarction . Circulation Journal. 2004.68;192-197.
29.Ueda H ; Nakayama Y ; Tsumura K ; Yoshimaru K; Hayashi T ; Yoshikawa J .Intravenous nicorandil can reduce the occurrence of ventricular fibrillation and QT dispersion in patients with successful coronary angioplasty in acute myocardial infarction .Canadian Journal of Cardiology 2004;20(6);625-628.
In case ,if you want use the following table , you may use it as an additional source for evidence no 5.
No clinical outcome data. The outcomes are laboratory-based and only theoretically clinically relevant.
Germany 45 patients with AMI treated medically (20 thrombolysed), randomised to receive either nicorandil 10mg or placebo every 12 hours, starting as soon as possible after admission.
Japan 81 eligible patients (of 90) with first anterior MI, randomly allocated to receive either nicorandil (4mg IV bolus plus continuous infusion for 24 hours then 15mg bd orally for 28 days) or no nicorandil (control group).
No sample size calculation, probably underpowered.
Death, in-hospital 0 nicorandil v. 4 (10%) control. P=0.043.
No reflow on myocardial contrast echocardiography Lower (superior) in nicorandil group (15% v. 33%, p<0.05).
Japan 62 eligible (of 74) patients admitted to the Coronary Care Unit with a first MI, within 6 hours of symptom onset. Randomised to receive either nicorandil (IV bolus plus 24 hour infusion) or no nicorandil (controls).
All patients underwent PTCA for reperfusion. PRCT Myocardial perfusion-metabolism mismatch (assessed by dual BMIPP and thallium SPECT) No significance in BMIPP severity (metabolism); significantly lower thallium severity in the nicorandil group with preceding angina (p<0.05). Significantly lower thallium/BMIPP (perfusion/metabolism) severity ratio in nicorandil group with preceding angina (p<0.05). No difference with nicorandil if no preceding angina. Authors propose that this suggests cardioprotective effect of nicorandil Randomisation procedure not described.
Perfusion-metabolism mismatch is a laboratory-based outcome, which is only theoretically relevant in the clinical situation. Clinical follow-up data would be desirable.
Left ventricular function (assessed by echocardiography) Significant reduction in wall motion score in nicorandil group with preceding angina (p<0.05), suggesting greater preservation of LV function. No difference with nicorandil without preceding angina.
Japan 58 patients wth AMI, randomised to receive either nicorandil (IV bolus then infusion, n=33) from admission (Emergency Room) to 24 hours or no nicorandil (control, n=25).
All patients underwent primary PCI with stenting within 60 minutes of admission. PRCT Plasma BNP levels 7 and 14 days and 6 months post-PCI All lower in nicorandil group (P<0.05) Small numbers.
No clinical outcome data at 6-month follow-up.
Total in-hospital cardiac events (CHF, arrhythmia, pericardial effusion or recurrent MI) No significant differences when each outcome assessed individually. As a composite outcome, significantly fewer in nicorandil group (p=0.032).
Left ventricular function (LVEF and CIn) LVEF: No significant difference immediately after PCI; Significantly greater at 6 months in nicorandil group (p<0.05); CIn: Significantly greater immediately after PCI and at 6 months in nicorandil group (p<0.05).
Urinary 8-epi-PGF-2alpha excretion Significant increases in control group following PCI (P<0.01); No change in excretion following PCI in nicorandil group (P<0.0001).
All patients underwent PCI. Nicorandil was given by IV bolus then infusion from the time of diagnosis to 24 hours, followed by 15mg od for a mean of 28 days. Retrospective observational trial LV function (assessed by echocardiography, wall motion score) Total: No significant differences. Anterior MI’s only: Superior in nicorandil group (p;0.03). Study design subject to considerable bias. Retrospective, control group were treated two years earlier.
Stent use significantly higher in nicorandil group (p;0.01).
Death at late follow-up (mean 3.1 years) Significantly lower in nicorandil group (cardiac cause p;0.04, all-cause p;0.01).
Cardiac events at late follow-up Significantly less in nicorandil group (p;0.01).
Re-infarction at late follow-up Significantly less in nicorandil group (p;0.01).
Multiple regression analysis to derive factors related to cardiac events Nicorandil related (p;0.0011), odds ratio 0.27 (95% CI 0.12-0.58).
Japan 60 eligible (of 209 consecutive) patients with AMI, randomly assigned to receive either nicorandil (n=30) or ISDN (n=30) by IV infusion (+ slow IC bolus at PCI) from immediately after diagnosis – 72 hours.
All patients underwent primary PCI and had repeat coronary angiography at 3 weeks. PRCT Recovery of ST elevation imediately after reperfusion Nicorandil 15/27 (55.5%) v. ISDN 5/26 (19.2%), p=0.006. No clinical outcome data at follow-up.
Relatively small numbers with no sample size calculations.
Regional wall motion (left ventriculography) Significantly greater in nicorandil group, both immediately (p=0.015) and at 3 weeks (p=0.046).
Coronary flow measurements Significantly higher in nicorandil group 40 minutes post-PCI (p;0.05 for all measurements).
Canada 83 eligible (of 150 consecutive) patients with AMI (symptom onset ;12 hours) who underwent primary PTCA. Patients enrolled in the 1st 6 months were controls (n=37). Patients in the 2nd 8 months received nicorandil IV infusion from admission – 48 hours after PTCA (n=46). Historical cohort study QT interval Maximum shorter in nicorandil group 48 hours after PTCA (P;0.05). No significant difference in minimum QT interval. No randomisation or blinding.
Historical cohort design subject to considerable bias. Of note, nicorandil group was enrolled after controls. Standards of care in general may have improved.
Nicorandil group less likely to be on ACE inhibitors (P=0.029) – possibly because of less CHF in that group.
QT intervals calculated manually by same (blinded) observer. No assessment of intraobserver variability.
QT dispersion Significantly lower at 48 hours in nicorandil group (P;0.05); Nicorandil (but no other variables) independently associated with QT dispersion on multivariate analysis (r=0.342, P;0.05).
Ventricular fibrillation within 48 hours of PTCA Nicorandil 0 v. control 3 (P;0.05).
Japan 40 consecutive patients with first AMI who underwent primary PCI and had occluded LAD. Randomised to receive either (1) nicorandil (IV bolus, IC bolus then IV infusion for 24 hours), (2) magnesium sulphate (IV bolus then infusion for 24 hours) or (3) neither (control).
All patients had repeat coronary angiography at 3 months. PRCT Reperfusion injury phenomena Trend towards less in both treatment groups (not significant) Method of randomisation not desribed.
No clinical outcome data at follow-up.
Exclusions not reported but randomisation occurred before fulfilment of inclusion criteria (LAD occlusion).
Restenosis rates, TIMI frame count (measure of wall motion), ejection fraction No significant differences between the groups.
Change in regional wall motion Significant improvement from baseline in nicorandil group but not other groups (p;0.05 v. control, not significant v. magnesium).

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