Motion for Change of Venue in HUNTER BRIANet al vs. D'ANDRA D. BINGHAM, MDet al| Trellis.Law

On February 02, 2023 a Motion-Secondary was filed involving a dispute between Brian, Hunter, Scott, Shelby, and Bingham, D'Andra D., Md, Christus Health, Christus Health Ark-La-Tex, Collom & Carney Clinic Association, Keeney, Susan Elizabeth, Md, Pediatrix Medical Group Of Texas, Pediatrix Medical Services, Inc., for MEDICAL MALPRACTICE in the District Court of Dallas County.

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FILED
4/14/2023 12:06 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jeremy Jones DEPUTY

CAUSE NO. DC-23-01657
HUNTER BRIAN and SHELBY SCOTT, § IN THE DISTRICT COURT
individually and as next friends of §
L.F.B., a Minor, §
§
Plaintiffs, §
§
vs. §
§ DALLAS COUNTY, TEXAS
D’ANDRA D. BINGHAM, M.D.; §
COLLOM & CARNEY CLINIC §
ASSOCIATION; CHRISTUS HEALTH §
ARK-LA—TEX d/b/a CHRISTUS ST. §
MICHAEL HEALTH SYSTEM; §
CHRISTUS HEALTH; SUSAN §
ELIZABETH KEENEY, M.D.; and §
PEDIATRIX MEDICAL SERVICES, §
INC. d/b/a PEDIATRIX MEDICAL §
GROUP OF TEXAS, §
§
Defendants. § 134th JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDAN TS COLLOM & CARNEY CLINIC
ASSOCIATION AND D’ANDRA D. BINGHAM. M.D.’S MOTION TO
TRANSFER VENUE
Plaintiffs Hunter Brian and Shelby Scott, individually and as next friends and

parents of L.F.B., a Minor, ﬁle this response to the motion to transfer venue ﬁled by

Defendants Collom & Carney Clinic Association and D’Andra D. Bingham, M.D.

(collectively “Bingham”), and would show the Court as follows:

ARGUMENT AND AUTHORITIES
It is undisputed that Dallas County is a permissible venue for this case. If venue

is proper as to one defendant, it is proper for all the defendants. Bingham has not

challenged the fact that Defendant CHRISTUS Health has its principal place of

business in Dallas County. Movants have not otherwise met their burden in seeking a

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 1
1 33 752 7
transfer to Bowie County based on convenience. Bingham has provided no evidence to

this Court to support their contention that Bowie County would be more convenient or

that maintaining this suit in Dallas County will impose an economic and personal

hardship on them.

A. Venue is proper in Dallas County because CHRISTUS
Health has its principal places of business in Dallas County.
None of the mandatory or speciﬁc permissive venue provisions apply in this case,

so venue here is governed by the general venue rule contained in section 15.002(a) of

the Texas Civil Practices and Remedies Code. As set forth in Plaintiffs’ Original

Petition, venue is proper in Dallas County, Texas pursuant to TeX. Civ. Prac. & Rem.

Code § 15.002 because Defendant CHRISTUS Health has its principal place of business

in Dallas County. Dallas County is in fact a proper venue under section 15.002(a)(2),

which provides that venue is proper “in the county of the defendant’s principal ofﬁce in

this state, if the defendant is not a natural person.” TeX. Civ. Prac. & Rem. Code

15.002(a)(3). In a suit involving multiple defendants, like this one, when a plaintiff

establishes proper venue against one defendant, venue is proper for all defendants as

long as the claims arise from the same transaction, occurrence, or series of transactions

or occurrences. Tex. Civ. Prac. & Rem. Code § 15.005; American Home Prods. v. Clark,

38 S.W.3d 92, 94 (Tex. 2000).

While Bingham correctly notes that “the incident made the basis of this suit”

occurred in Bowie County, that is not relevant because venue is also proper in Dallas

County under section 15.002(a)(2). Because CHRISTUS Health has its principal place

of business in Dallas County and the claims against all the defendants, including

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 2
1 33 752 7
Bingham, arise from the same incident, venue is proper in Dallas County.

In asserting that venue is not proper in Dallas County, Bingham states in their

motion that CHRISTUS Health “has been improperly named in this case.” (Motion at 1]

3). In doing so, Bingham challenges the merits of Plaintiffs’ claims, something that is

not permitted when moving to transfer venue. Rule 87 makes it clear that “it shall not

be necessary for a claimant to prove the merits of a cause of action, but the existence of

a cause of action, when pleaded properly, shall be taken as established as alleged by

the pleadings.” TeX. R. Civ. P. 87 (b). Bingham therefore cannot claim that Plaintiffs

have no causes of action against a different defendant in challenging venue.

Accordingly, for purposes of this motion, CHRISTUS Health is presumed to be a proper

party, and because CHRISTUS Health has its principal place of business in this

County, Dallas County is a proper venue.

B. Movants have the burden of demonstrating the need for
transfer based on convenience.
Texas law places the burden squarely on a party who seeks to challenge a

plaintiffs chosen venue based on convenience. Section 15.002(b) allows transfer to

another county of proper venue for convenience only “where the court finds” all three of

the following have been established by the movant:

(1) maintenance of the action in the county of suit would work an
injustice to the movant considering the movant's economic and
personal hardship;

(2) the balance of interests of all the parties predominates in favor of
the action being brought in the other county; and

(3) the transfer of the action would not work an injustice to any other
party.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 3
1 33 752 7
Tex. Civ. Prac. & Rem. Code § 15.002(b). Bingham’s bald assertions that convenience is

served by litigation in Bowie County instead of Dallas County do not satisfy the

showing required by the statute. In the absence of weighty evidence in favor of those

contentions, the Court ought not to transfer — and cannot be questioned on appeal if it

does not. Garza v. Garcia, 137 S.W.3d 36, 39 (TeX. 2004).

The standard for transfer for convenience under the Civil Practice and Remedies

Code essentially tracks the federal version of non conveniens transfers. See Abel v.

Surgitek, 975 S.W.2d 30, 41 (Tex. App. — San Antonio 1998), rev’d on other grounds sub

nom., Surgitek, Bristol Meyers Corp. v. Abel, 997 S.W.2d 598 (Tex. 1999) (“By adopting

[section 15.002(b)], the legislature provided defendants with a means to address the

fairness and convenience of trying a suit in different counties in Texas in the

traditional non conveniens sense.”)1 “[U]nless the balance is strongly in favor of the

movant, the plaintiff’s choice of forum should rarely be disturbed.” Scheidt v. Klein, 956

F.2d 963, 965 (10th Cir. 1992); see also Robinson v. Giarmarco & Bill, P. C., 74 F.3d

253, 260 (11th Cir. 1996) (“The plaintiff’s choice of forum should not be disturbed

unless it is clearly outweighed by other considerations”).

To overcome the heavy bias in favor of a plaintiff’s choice of appropriate forum,

the movant “must show that the original forum is inconvenient for it and that plaintiff

would not be substantially inconvenienced by a transfer. It is not enough for defendant

to argue only that plaintiffs choice of forum is inconvenient for the plaintif .” 15

1
When the legislature adopted the 1995 amendments to the venue provisions, it also
added section 15.002(b), which a commentator referred to as the “county non

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 4
1 33 752 7
WRIGHT, MILLER & COOPER § 3849; see also Mullins v. Equifax Information Services,

LLC, 2006 WL 1214024, *6 (E.D. Va. 2006), citing American Can Co. v. Crown Cork &

Seal Co., Inc., 433 F. Supp. 333, 338 (E.D. Wis. 1977) (“The defendant cannot assert

plaintiffs inconvenience in support of a motion to transfer.”); James v. Norfolk &

Western Ry. Co., 430 F. Supp. 1317, 1319 (S.D. Ohio 1976) (“The defendant cannot

assert plaintiffs inconvenience in support of a motion to transfer. Assuming arguendo

that the plaintiff has inconvenienced herself in this case, she may do so if she so

desires”) In deciding a motion to transfer venue, the Court must “determine Whether

the balance of convenience clearly weighs in favor of a transfer.” DermaMed, Inc. v. Spa

de Soleil, Inc., 152 F. Supp. 2d 780, 783 (E.D. Pa. 2001); Natl. Paintball Supply, Inc. v.

Cossio, 996 F. Supp. 459, 463 (E.D. Pa. 1998). “Moreover, such motions are not to be

liberally granted as the Plaintiffs’ choice of venue is not to be lightly disturbed.”

DermaMed, 152 F. Supp. 2d at 783.

C. Bingham has not demonstrated the requisite economic and
personal hardship needed to justify changing venue for
convenience.

Bingham has proffered no evidence whatsoever of any economic and personal

hardship that could possibly justify transferring the case based on convenience. In

their motion, Bingham broadly asserts that it would be more convenient for all the

parties and Witnesses to litigate in Bowie County. In support of this general statement,

Bingham provides only general assertions about distance and witnesses, but Bingham

does not bother to present evidence of any purported economic and personal hardship

conveniens” provision. See J. Patrick Hazel, Jurisdiction and Venue in Texas, State Bar
of Texas, Advanced Personal Injury Law Course B—13—14 (1997).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 5
1 33 752 7
they are under by maintaining the suit in Dallas County.

The statute requires Bingham to demonstrate that they would suffer “economic

and personal hardship” by maintaining this suit in Dallas County. Tex. Civ. Prac. &

Rem. Code § 15.002(b)(1). No such showing has been or can be made here. Whether the

suit is tried in Dallas or Bowie County, depositions of witnesses will likely take place in

attorney’s ofﬁces or other locations convenient for the witnesses. Out-of-town experts

will often be able to take advantage of widely available direct ﬂights to Love Field or

DFW Airport, in contrast to having to take connecting ﬂights to Texarkana. Trial in

Dallas County will not be signiﬁcantly more inconvenient for the Defendants than a

trial in Bowie County. While some parties live, work, or are headquartered in Bowie

County, others are located here in Dallas County. Bingham proffers no evidence of true

“economic and personal hardship involved” for any of the Defendants.

Bingham’s time and resources will be affected whether the venue is in Dallas or

Bowie County, and having to travel even a substantial distance is rarely grounds for

granting a motion to transfer based on convenience. Parties must frequently travel to

the venue of the suit. In Continental Airlines, Inc. v. American Airlines, Inc., 805 F.

Supp. 1392 (S.D. Tex. 1992), a federal court considered a motion to transfer a case from

Galveston to Fort Worth for the alleged convenience of the parties and witnesses. U.S.

District Judge Sam Kent colorfully rejected mere distance as a factor supporting the

requested transfer, noting that “the Galveston Division courthouse is not that far from

the Northern District, it is not as if the key witnesses will be asked to travel to the

wilds of Alaska or the furthest reaches on the Continental United States.” Id. at 1397.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 6
1 33 752 7
Bingham simply has provided no evidence that they will suffer any particular economic

and personal hardship should the case be tried in Dallas. Without the mandatory

showing of economic and personal hardship, Plaintiffs’ choice of venue should be

respected, and the motion should be denied.

At the very least, should Bingham actually proffer purported evidence of

hardship, the Court should continue the hearing to allow Plaintiffs to conduct discovery

regarding such allegations.

Conclusion

Plaintiffs ask the Court to deny the Motion to Transfer Venue in full and grant

them such other and further relief to which they may be justly entitled.

Respectfully Submitted,

MILLER WEISBROD OLESKY, L.L.P.
/s/ Matt Adair
LES WEISBROD
State Bar No. 21104900
lweisbrodeillerweisbrod.com
CLAY MILLER
State Bar No. 00791266
cmillerf@millerweisbrod.com
CARRIE LYNN VINE
State Bar No. 24128671
cvine@millerweisbrod.com
MATTHEW ADAIR
State Bar No. 24084471
madair@millerweisbrod.com
11551 Forest Central Drive
Forest Central II, Suite 300
Dallas, Texas 75243
(214) 987-0005 (Telephone)
(214) 987-2545 (Facsimile)

ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 7
1 33 752 7
CERTIFICATE OF SERVICE
The undersigned certiﬁes that a true and correct copy of the foregoing was
served upon the following attorneys of record on this the 14th day of April, 2023, as
follows:

Kevin W Yankowsky HAND DELIVERY
kvin.vankowskv@nortonrosefulbright.com CERTIFIED MAIL
Betty Feng FACSIMILE
bettV.feng@nortonrosefulbrightcom FIRST CLASS MAIL
Norton Rose Fulbright US, LLP ELECTRONIC X
Fulbright Tower
1301 McKinney, Suite 5100
Houston, Texas 7 7 101-3095
ATTORNEYS FOR DEFENDANTS
D’ANDRA D. BINGHAM, MD.
COLL 0M & CARNEY CLINIC ASSOCIATION

Elizabeth D. “Lisa” Alvarado HAND DELIVERY
lalvarado@smfadlaw.com CERTIFIED MAIL
Shannon, Martin, Finkelstein, Alvarado & FACSIMILE
Dunne, P.C. FIRST CLASS MAIL _
1001 McKinney Street, Suite 560 ELECTRONIC X
Houston, Texas 7 7002
ATTORNEYS FOR DEFENDANTS
CHRISTUS HEALTH ARK-LA- TEX /b /a CHRISTUS ST.
MICHAEL HEAL TH SYSTEM

Jon W. Stephenson HAND DELIVERY
ionstephenson@steedlawf1rm.com CERTIFIED MAIL
Casey Cashion FACSIMILE
caseycashion@steedlawﬁrm.com FIRST CLASS MAIL —
Steed Dunnill Reynolds Bailey Stephenson, ELECTRONIC X
LLP
1717 Main Street, Suite 2950
Dallas, Texas 75201
ATTORNEYS FOR DEFENDANTS
CHRISTUS HEALTH ARK-LATEX /b /a CHRISTUS ST.
MICHAEL HEALTH SYSTEM

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 8
1837527
Russell W. Schell HAND DELIVERY
rschell@schellcoolev.com CERTIFIED MAIL
Michelle G. Obach FACSIMILE
mobach@schellcoolev.com FIRST CLASS MAIL
Schell Cooley Campbell LLP ELECTRONIC
16415 Addison Road, Suite 700
Addison, Texas 75001
ATTORNEYS FOR DEFENDANTS
ELIZABETH KEENEY, MD.
PEDIATRIX MEDICAL SERVICES, INC. d/ b / a PEDIATRIX
MEDICAL GROUP 0F TEXAS

/s/ Matt Adair
MATTHEW ADAIR

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE PAGE 9
1837527
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Bianca Trejo on behalf of Les Weisbrod
Bar No. 21104900
btrejo@millenNeisbrod.com
Envelope ID: 74693143
Filing Code Description: Response
Filing Description: PLAINTIFFS RESPONSE TO DEFENDANTS' MOTION
TO TRANSFER VENUE
Status as of 4/17/2023 1:16 PM CST

Associated Case Party: HUNTER BRIAN

Name BarNumber Email TimestampSubmitted Status
Francine Ly fly@dallascourts.org 4/17/2023 9:28:35 AM SENT
Michelle Obach mobach@schellcooley.com 4/17/2023 9:28:35 AM SENT
Vera Brumley vbrumley@schellcooley.com 4/17/2023 9:28:35 AM SENT
LES WEISBROD Iweisbrod@millerweisbrod.com 4/17/2023 9:28:35 AM SENT
Lori Slywka Iorislywka@steedlawfirm.com 4/17/2023 9:28:35 AM SENT
C. Holloway Yvetteholloway@steedlawfirm.com 4/17/2023 9:28:35 AM SENT
Kathy Dorsey kathydorsey@steedlawfirm.com 4/17/2023 9:28:35 AM SENT
Russell Schell rschell@schellcooley.com 4/17/2023 9:28:35 AM ERROR

Associated Case Party: COLLOM & CARNEY CLINIC ASSOCIATION

Name BarNumber Email TimestampSubmitted Status
Liane Hunt |iane.hunt@nortonrosefulbright.com 4/17/2023 9:28:35 AM SENT
Kevin W.Yankowsky kevin.yankowsky@nortonrosefulbright.com 4/17/2023 9:28:35 AM SENT
Betty Feng Betty.Feng@Nortonrosefulbright.com 4/17/2023 9:28:35 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
Jon Wayne Stephenson 24041973 jonstephenson@steedlawﬁrm.com 4/17/2023 9:28:35 AM SENT
Matthew Adair 24084471 madair@millerweisbrod.com 4/17/2023 9:28:35 AM SENT
Charles Clayton Miller 791266 cmiller@millerweisbrod.com 4/17/2023 9:28:35 AM SENT
Casey Cashion 24103775 caseycashion@steedlawfirm.com 4/17/2023 9:28:35 AM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Case Contacts

Carrie Lynn Vine 24128671 cvine@millenlveisbrod.com 4/17/2023 9:28:35 AM SENT

Associated Case Party: CHRISTUS HEALTH

Name BarNumber Email TimestampSubmitted Status
Elizabeth D. (Lisa)Alvarado lalvarado@smfadlaw.com 4/17/2023 9:28:35 AM SENT
Sherry EKeIIy skelly@smfadlaw.com 4/17/2023 9:28:35 AM SENT
Carlos Mattioli cmattioli@smfadlaw.com 4/17/2023 9:28:35 AM SENT
Debra Boyd dboyd@smfadlaw.com 4/17/2023 9:28:35 AM SENT

Case Info

Judge

TILLERY, DALE Track Judge’s New Case

Case No.

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Document Filed Date

April 14, 2023

Case Filing Date

February 02, 2023

County

Parties

ALVARADO, ELIZABETH D. Attorney for the Defendant
BINGHAM, D'ANDRA D., MD Defendant
BRIAN, HUNTER Plaintiff
CHRISTUS HEALTH Defendant
CHRISTUS HEALTH ARK-LA-TEX Defendant
COLLOM & CARNEY CLINIC ASSOCIATION Defendant
DRY, ROBERT T, III Attorney for the Defendant
KEENEY, SUSAN ELIZABETH, MD Defendant
OBACH, MICHELL G Attorney for the Defendant
PEDIATRIX MEDICAL GROUP OF TEXAS Defendant
PEDIATRIX MEDICAL SERVICES, INC. Defendant
SCHELL, RUSSELL W Attorney for the Defendant
SCOTT, SHELBY Plaintiff
STEPHENSON, JON W Attorney for the Defendant
SUTKER, CORY MATTHEW Attorney for the Defendant
WEISBROD, LES Attorney for the Plaintiff
WILLIAM, KRISTINA M Attorney for the Defendant
YANKOWSKY, KEVIN WILLIAM Attorney for the Defendant
Charles Miller Attorneys for Plaintiffs
Carrie Vine Attorneys for Plaintiffs
Casey Cashion Attorneys for Defendants
Betty Feng Attorneys for Defendants
Lisa Blue Attorney
Jennifer Hamlett Attorney

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Motion-Secondary: HUNTER BRIANet al vs. D'ANDRA D. BINGHAM, MDet al

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