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CAUSE NO. 20 DCV-271311
PORSCHIA FINCH ALLEN, IN THE DISTRICT COURT OF
INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE ESTATE
OF B.A., A DECEASED MINOR
Plaintiffs,
VS. FORT BEND COUNTY, TEXAS
MICHELLE F. FERGUSON, JEFFERY
FERGUSON, GOOD HEARTS YOUTH
AND FAMILY SERVICES, INC.,
TAELOR HARMON, ANGELA
FACCIPONTE, JOYCE WATSON,
ESTHER DAVIDSON
Defendants. JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL DEPOSITIONS
COMES NOW the Plaintiff Porschia Finch Allen, Individually and as epresentative of
the Estate of B.A., a Deceased Minor Child Plaintiff”), by and through her attorney, and files
this Response Defendants Good Hearts Youth and Family Services, Inc., Taelor Harmon,
Angela Facciponte, and Joyce Watson (“Defendants”) Motion to Compel Depositions
(“Motion”). In support of her positions, Plaintiff would show the Court as follows:
INTRODUCTION
Plaintiff has voluntarily agreed to produce the owner of Innova for deposition limited to
the records for which Defendant Good Hearts is complaining. Plaintiff is not required to produce
any witness in its control regarding these records prior to trial and cannot produce witnesses
outside of its control.
Defendants begin their Motion with a "goose and gander" statement referencing a
previous Court Order from December 2020 compelling the production of germane documents
The documents included protocols and trainings like the foster parent’s handbook and water safety training. See
Plaintiff’s Motion to Compel and Motion for Sanctions filed in July of 2022.
from Defendant Good Hearts. “ es and oranges” is a more appropriate statement.
Defendant Good Hearts’ conveniently fails to admit after the Order was signed in December of
2020, Defendant’s counsel sent multiple written correspondence claiming documents had been
produced–which was patently false. Defendant Good Hearts then withheld the germane
documents, ignored a Court Order by failing to produce documents until May 2022.
In the instant matter, Plaintiff's counsel has withheld no documents in its possession and
this Court has found Defendants had notice of the mental health treaters whose depositions they
seek to compel. Further, Plaintiff has voluntarily offered to produce the owner of Innova, Dr.
Kasi Howard to give a deposition prior to trial regarding the records Defendant Good Hearts
complains. Defendant’s counsel has acknowledged that Plaintiff has no control over Dr. Weiss
and Plaintiff could not comply with a Court order compelling his production for deposition
because of that lack of control—much less at a moment’s notice.
Lastly, Defendants’ Motion to Compel at the eleventh hour of trial and following the
Court’s hearing on December 8, 2022, where the Court expressed that any additional depositions
would have to be conducted by agreement of the parties. Is further evidence of the negligence of
the Defendants’ insurance carrier, and their counsel in the investigation, discovery, preparation,
and evaluation of Plaintiff’s causes of action and damages in this matter. It is clear that this is
yet another dilatory tactic by Defendants and that they are again seeking to obstruct the trial date
in this case
RELEVANT BACKGROUND
On December , 2022, Defendants filed a Motion for Continuance as to this cause’s trial
date. This Motion was filed untimely as it was filed only three days before this case’s pre trial
See Plaintiff’s Motion to Compel and Motion for Sanctions filed in July of 2022.
Id.
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setting. Defendants ground their last minute Motion on the premise that medical records for a
week and a half inpatient stay that Plaintiff underwent in late September of 2022, almost four
years after the subject incident, and/or their non-disclosure was so material that a continuance is
necessary in this cause. In their Motion for Continuance, Defendants also alleged they
necessitated additional depositions such as the depositions of Plaintiff, her retained expert, and
the owner of Innova Recovery Center, Dr. Kasi Howard, which had already been conducted
previously in this litigationas a retained expert .
This untimely filed Motion for Continuance was filed without any attempt to confer with
Plaintiff’s counsel. Accordingly, Plaintiff delivered a correspondence to Defendants in a good
faith attempt to confer with Defendants and to address their concerns. More specifically,
Plaintiffs offered the depositions of Dr. asi Howard, the owner of Innova Recovery Center, and
Em Green of Innova Recovery Center, the director of counseling that saw Plaintiff at Innova
Recovery Center At the same time, Plaintiff explicitly informed Defendants that should they
decide to continue to pursue their Motion for Continuance, that Plaintiff may not agree to
produce the aforementioned witness :
Please note that in the event you choose to go forward with the motion for continuance
on Thursday and it gets denied, absent a Court order I may not agree to produce these
witnesses, which would still allow you to examine Plaintiff and Dr. Howard about the
content of Innova’s medical records at trial.”
In response to Plaintiff’s good faith attempt to confer, Defendants filed a supplement to
their Motion for Continuance on December 7, 2022.
See Defendants’ Motion for Continuance.
See Exhibit A, (Plaintiff’s Letter to Defendant’s Counsel Dated December 7, 2022 , Will Be Available For Review
at the Hearing as Plaintiff Does not Intend to Publish Mental Health records in any form
at Page 2.
at Page 2.
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In Plaintiff’s response to Defendant’s Motion for Continuance. Plaintiff presented several
grounds for the Continuance’s denial such as the following:
On October 10, 2022, Defendant Good Hearts independently sought out
Plaintiff’s file and obtained the following record from the Hale Counting
District Clerk’s Office giving Good Hearts express notice about Plaintiff’s
September 19-30, 2022 visit to Innova.
Illustration No. 1
On October 31, 2022, Plaintiff reports her 11 day visit to Innova at the IME of
Defendant Good Hearts’ retained expertDr. Boake. On Page 3 of his report, Dr.
Boake clearly indicates that he knew of the Plaintiff’s September 2022 visit to
Innova prior to the IME. 10
On December 8, 2022, after the Court heard the Defendants’ Motion for Continuance,
Plaintiff’s Response, pleadings, evidence, and arguments, the Court denied Defendants’ Motion
for Continuance. The Court as a basis for denying Defendants’ Motion for Continuance, found
that Defendants had adequate notice of Plaintiff’s September, 2022 visit to a timely disclosed
See Exhibit B, (Receipt For Purchase Of Porshia Finch Allen’s Criminal File By Thompson Coe Dated October
10, 2022; See Exhibit C, (Letter Regarding Treatment of Care By Innova Recovery).
Id.
See Exhibit D (Report of Dr. Boake Will Be Available For Review at the Hearing as Plaintiff Does not Intend
Publish Mental Health records in any form).
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medical provider. Further, a the hearing, the Court expressed that any additional depositions
would have to be conducted by agreement of the parties.
ARGUMENTS & AUTHORITIES
The scope of discovery is generally within a trial court’s discretion. In re State Farm
Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) But, a trial court is required to make an effort to
impose reasonable limits to discovery Defendants’ Motion to Compel is untimely as it has
been filed in the eleventh hour of trial and as Defendants have failed to diligently pursue
discovery. 11 As Defendants included in their Motion, the rules of discovery prevent trial by
ambush and ensure fairness.
Defendants’ Motion should be denied because Defendants have not been unfairly
surprised and/or will not suffer unfair prejudice as they failed to diligently pursue the discovery
that they are coincidentally seeking at the eleventh hour of trial. Defendants had since October
10, 2022, when they undisputedly became aware of Plaintiff’s September 2022 visits to Innova
to either attempt to schedule additional depositions, file a Motion to Compel, and/or had more
than enough time to bring a continuance to the Court’s attention in a timely manner such
depositions were desperately necessary prior to trial and to develop Defendants’ defenses.
Accordingly, Defendants’ Motion should be denied because of the foregoing and as
iscussed herein.
This Motion should be denied because Defendants have not been unfairly surprised
and will not suffer unfair prejudice as Defendants became aware of Plaintiff’s stay
on October 10, 2022
See State v. Wood Oil Distributing, 751 S.W.2d 863, 865 (Tex. 1988) (Case where trial court denied a motion to
continuance for additional depositions on the morning of trial
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t is undisputed that Defendants became aware of Plaintiff’s stay on October 10, 2022,12
only about 10 days after Plaintiff was discharged from her stay and 61 days prior to this Court’s
preferential trial setting. Consequently, Defendants became aware of Plaintiff’s stay and
treatment almost immediately after her discharge and well enough before the December , 2022
trial setting
In its Motion, Defendant points to how an employee of Innova Recovery Center nd Dr.
Thomas Weiss reside over 150 miles away from Fort Bend County in the San Antonio area and
are not in subpoena range under Rule 176.3. However, the fact that these individuals are not in
subpoena range do not detract from the fact that Defendants were aware of Plaintiff’s recent stay
at Innova Recovery Center since October 10, 2022, and were aware that Innova Recovery
Center’s location in the San Antonio area, which has always been over 150 miles from Fort Bend
County, Texas. Accordingly, Defendants had the opportunity to attempt to schedule additional
depositions and/or file a timely motion to compel well enough before the December 13, 2022,
preferential trial setting.
Consequently, Defendants’ Motion should be denied because Defendants have not been
unfairly surprised and will not suffer unfair prejudice as Defendants became aware of Plaintiff’s
stay on October 10, 2022.
is Motion should be denied because Defendants have not been unfairly surprised
and will not suffer unfair prejudice as Plaintiff has fully complied with the Texas
Rules of Civil Procedure and the Court’s Scheduling Order as to the disclosure of
these records.
In Plaintiff’s answer to interrogatory number 8, Plaintiff had already disclosed Innova
Recovery Center which is where Plaintiff had her stay and already answers August 3, 2020 to the
See Exhibit B, (Receipt For Purchase Of Porshia Finch Allen’s Criminal File By Thompson Coe Dated October
10, 2022; See Exhibit C, (Letter Regarding Treatment of Care By Innova Recovery).
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13
present This interrogatory was answered on November 20, 2020. 14 Defendants had two years
to confer with Plaintiff as to the form of the substance of Plaintiff’s interrogatory answer
including the entire month of November, 2022, but did not.
Plaintiff’s responses to request for production number 1, 8, 18, and 21 Plaintiff had
already disclosed Innova Recovery Center in its response to requests for production number 1, 8,
and 18, and as Plaintiff supplemented the records from Plaintiff’s stay when the records came
into Plaintiff’s possession 15 Further, Plaintiff was not obligated to supplement her response to
request for production number 21 for these records, as this request seeks Plaintiff’s exhibits at
trial, and Plaintiff will not be using the records from the stay as an exhibit at trial. 16
Further, with respect to the supplementation of Dr. Howard’s expert opinions, Plaintiff
was not required to supplement. As not even a change in an expert’s opinion always necessitates
supplementation. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 902 (Tex. App.Texarkana
2004, pet. denied). An expert is even allowed to change an opinion without supplementation if
the opinion is an expansion on an already disclosed subject. Supplementation of expert
designation opinions are only required when there is such a fundamental alteration that would
constitute a surprise attack on the opposing party. JLG Trucking LLC v. Garza, 461 S.W.3d 554,
560 (Tex. App.—San Antonio 2013), rev'd, 466 S.W.3d 157 (Tex. 2015).
In the instant matter, Plaintiff’s expert is not even changing her opinions. Plaintiff’s
expert will still only be testifying about the already disclosed subject of Plaintiff’s mental
anguish and will not be testifying about Plaintiff’s September 2022 stay. Consequently, there is
See Exhibit , Plaintiff’s Answers and Objections to Defendant’s First Set of Interrogatories.
.
.
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no alteration of Plaintiff’s expert’s testimony and there is no surprise attack that Defendant can
even allege.
Accordingly, Defendant’s Motion should be denied because Defendants have not been
unfairly surprised and will not suffer unfair prejudice as Plaintiff has fully complied with the
Texas Rules of Civil Procedure and the Court’s Scheduling Order as to the disclosure of these
records.
This Motion should be denied because Defendants have failed to establish that they
are entitled to conduct the discovery that they are seeking and/or that they will
suffer unfair surprise or prejudice
More specifically, this Motion should be denied as: (1) Defendants fail to point to any
new alleged change in Plaintiff’s mental anguish; (2) Defendants had already deposed Dr. Kasi
Howard, owner of Innova, as a retained expert well before Plaintiff’s stay; (3) Defendants still
have the same opportunity to cross examine Dr. Kasi Howard, owner of Innova, and Plaintiff as
to these records at trial as they would have already had; () Plaintiff is not and will not be
attempting to admit any billing or medical records for Plaintiff’s stay as evidence at trial; (
Defendants will still have the same opportunity to admit these billing or medical records at trial
as they would have already had; and (6) there is already an over excessive amount of discovery
that has been conducted on Plaintiff’s mental state including the independent medical
examination that was conducted by Defendant after Plaintiff’s stay and which allowed
Defendants to inquire as to Plaintiff’s mental state after her stay. None of these change
regardless of when these medical records would have been produced.
Defendants fail to point to any new alleged change in Plaintiff’s mental anguish
While Defendants repeatedly claim that that there are material changes to Plaintiff’s
mental health, Defendants have failed to point to any new alleged change in Plaintiff’s mental
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anguish and how such change affects Plaintiff’s damages in this lawsuit Throughout their entire
Motion, Defendants cry wolf and allege that there are new diagnosis but have not pointed to a
single new diagnosis in their filings which is so material to theextent that Defendants are entitled
to depositions at the eleventh hour of trial.
To the extent that Defendants attempt to argue that Plaintiff’s suicidal tendencies and
bipolar disorder are new diagnoses such as how they did in the December 8, 2022 hearing in this
cause, they are not. Plaintiff has suffered from suicidal tendencies 17 and bipolar since she was a
teenager and is not unheard of for a victim of sexual abuse. Defendants fail to point to how
Defendant’s mental anguish has materially changed in any form in their Motion.
Further, Defendants fail to point to and cannot argue that there has been a change in
Plaintiff’s mental anguish after the performance of their independent medical examination which
was done after Plaintiff’s stay. Accordingly, it is undisputed that Defendant has had the
opportunity to examine Plaintiff’s mental health and mental anguish after Plaintiff’s stay.
Defendants had already deposed Dr. Kasi Howard, owner of Innova, as a
retained expertwell before Plaintiff’s stay
Defendants are not entitled to conduct the discovery that they are seeking and/or will not
suffer unfair surprise or prejudice as Defendants had already deposed Dr. Kasi Howard, owner of
Innova, as a retained expert well before Plaintiff’s stay Plaintiff’s stay occurred in September of
2022, more than one year after the expert designations of both parties and the deposition of Dr.
Kasi Howard, the owner of Plaintiff at Innova Recovery Center. Regardless of Plaintiff’s stay i
September of 2022, Defendants had already conducted a deposition of Dr. Kasi Howard and
would not have been entitled to a second deposition of Dr. Kasi Howard as this would have
See Exhibit F, BATES FINCH ALLEN 008635 (Will Be Available For Review at the Hearing as Plaintiff Does
not Intend to Publish Mental Health records in any form).
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allowed Defendants a second bite at the apple, which Plaintiffs are graciously allowing
Defendants to do by agreement as to the records of which Defendants complain.
Defendants still have the same opportunity to cross examine Dr. Kasi Howard,
owner of Innova, and Plaintiff at trial as they would have already had
Defendants are not entitled to conduct the discovery that they are seeking and/or will not
suffer unfair surprise or prejudice as Defendants still have the same opportunity to cross-examine
Dr. Kasi Howard, owner of Innova, and Plaintiff as to these records at trial as they would have
already had. Because Defendants had already deposed both Plaintiff and Dr. Kasi Howard, the
owner of Innova Recovery Center, the next opportunity that Defendants would have had to
cross examine Plaintiff and this medical provider would have been at and is at trial. Defendants
still have this opportunity and will be entitled to cross examine this medical provider and
Plaintiff about these medical records if they so choose to do so.
While Defendants argue that the absence of another deposition of Plaintiff prior to trial
will affect their ability to properly bring their failure mitigate defense at trial, it does not. The
mitigation of damages doctrine requires an injured party to exercise reasonable care to minimize
its damages, if the damages can be avoided with only slight expense and reasonable effort.
Harris County v. Smoker, 934 S.W.2d 714, 721 (Tex. App.Houston [1st Dist.] 1996, writ
denied). However, the party who caused the loss bears the burden of proving lack of diligence on
the part of the plaintiff, and the amount by which the damages were increased by the failure to
mitigate.
Firstly, this argument fails because undergoing an inpatient stay that is longer than a
month cannot be undergone with only slight expense and effort. Secondly, this argument fails
because Defendant cannot attempt to prove Plaintiff’s mental anguish damages resulting from
this lawsuit have increased because she did not undergo inpatient mental health care four years
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after the death of her son, for mental health issues that she has had stemming from her teenage
years such as suicidal tendencies and bipolar disorder. The mere recitation of such an argument
is baffling. Third, this argument fails as Defendants will still have the opportunity to cross
examine Dr. Howard as owner of Innova Recovery Center to this during Dr. Howard’s second
deposition and at trial, will still have the opportunity to cross examine Plaintiff as to this at trial,
and still had already the opportunity to examine Plaintiff as to this during Defendants’
independent medical examination, the month following Plaintiff’s stay. Consequently,
Defendants will not be unfairly surprised or prejudiced as Defendants as they have already had
the opportunity to do develop this defense prior to trial and will still have the opportunity to
develop and present this defense at trial. Fourth, this argument fails and Defendants will not be
unfairly surprised or prejudiced as Defendants were already aware of Plaintiff’s stay as of
October 10, 2022 and were that such stay’s impact on their defense but nevertheless did not
attempt to confer with Plaintiff as to these depositions, attempt to compel these depositions, or
seek a continuance as to these depositions until the eleventh hour of trial.
Further, Defendant has failed to provide legal authority for when the failure to mitigate
doctrine has been applied in a similar matter. A matter involving mental health and mental
anguish. Where a Defendant is attempting to argue that post incident care that is subsequently
undergone as far as four years after the date of the subject incident can be applicable to a
Defendant’s failure mitigate defense.
Plaintiff is not and will not be attempting to admit any billing or medical records
for Plaintiff’s stay as evidence at trial
Defendants are not entitled to conduct the discovery that they are seeking and/or will not
suffer unfair surprise or prejudice as Plaintiff is not and will not be attempting to admit any
billing or medical records for Plaintiff’s stay as evidence at trial. Further, Plaintiff has no
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intention of using any medical or billing records of Plaintiff’s stay at trial. Plaintiff is not seeking
any compensation for medical bills regarding this stay at trial Plaintiff is not seeking any
compensation for medical bills regarding these visits.
Defendants will still have the same opportunity to admit these billing or medical
records at trial as they would have already had
Defendants are not entitled to conduct the discovery that they are seeking and/or will not
suffer unfair surprise or prejudice as Defendants will still have the same opportunity to admit
these billing or medical records at trial as they would have already had. While Plaintiffs have
already repeatedly expressed that they will not be attempting to admit any billing or medical
records for Plaintiff’s stay as evidence at trial. Defendants will still have the opportunity and
volition to use these records at trial.
here is already an over excessive amount of discovery that has been conducted
on Plaintiff’s mental state and anguish including independent medical
examination that was conducted by Defendant after Plaintiff’s stay and which
allowed Defendants to inquire as to Plaintiff’s mental state after her stay
This incident happened over four years ago and has been ongoing for more than two
years. During this time, Defendants have already engaged in and conducted an over excessive
amount of discovery as to Plaintiff’s mental state and anguish. Plaintiff did not even suffer
physical injury herself directly from the event that caused her son’s death. Plaintiff has not only
brought mental anguish claims but has also brought loss of consortium and survival estate
claims. All while Defendants have been allowed to conduct written discovery, oral depositions,
and expert discovery on Plaintiff’s mental anguish and mental state. Defendants even subjected
Plaintiff to an independent medical examination. An independent medical examination which
was conducted after Plaintiff’s September, 2022 stay and allowed Defendants to evaluate
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Plaintiff’s mental anguish and mental state after her stay. Yet Defendants still claim that they
need additional discovery. This behavior is ridiculous and should not be tolerated by the Court.
is Motion should be denied as Plaintiff has already provided Defendants the
opportunity to obtain the discovery that they seek in their Motion prior to trial
Lastly, this Motion should be denied as Plaintiff has already provided Defendants the
opportunity to conduct the alleged urgent discovery that is so desperately needed prior to trial
that is under the ability of Plaintiff 18 More specifically, Plaintiff has provided Defendants with
second deposition of Dr. Kasi Howard, the owner of Innova Recovery Center by agreement
regarding the records Defendant Good Hearts complains. And Defendants already had an
opportunity to depose Plaintiff as to her mental anguish and mental health during Plaintiff’s first
deposition. Plaintiff is not required to produce any witness in its control regarding these records
prior to trial and cannot produce witnesses outside of its control. Defendant’s counsel has
acknowledged that Plaintiff has no control over Dr. Weiss and Plaintiff could not comply with a
Court order compelling his production for deposition because of that lack of controlmuch less
at a moment’s notice.
IV. CONCLUSION
WHEREFORE, premises considered, Plaintiff Porshia Finch Allen prays that the Court
deny Defendants’ Motion to Compel and that Plaintiff be awarded any and all other relief that
the court deems just and equitable.
Plaintiffs and Defendant have agreed to a second deposition of Dr. Kasi Howard, owner of Innova Recovery on
December 12, 2022, regarding the records Defendant Good Hearts complains
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Respectfully Submitted,
THE LAW OFFICES OF JOEL PARDO, P.C.
_____________________________________
Joel B. Pardo
State Bar No. 24083617
6200 Savoy Drive, Suite 150
Houston, Texas 77036
Telephone (281) 584-6670
Facsimile (281) 404-9230
Email: joel@lawofficesofjoelpardo.com
THE WEBSTER LAW FIRM
JASON C. WEBSTER
State Bar No. 24033318
HEIDI O. VICKNAIR
State Bar No. 24046557
CHRISTIAN TOVAR
State Bar No. 24118561
6200 Savoy Drive, Suite 150
Houston, Texas 77036
713.581.3900 (telephone)
713.581.3907 (facsimile)
filing@thewebsterlawfirm.com
THE WEST LAW FIRM
S. Scott West
State Bar No. 21206920
Maddison M. West
State Bar No. 24104633
6908 Brisbane Court, Third Floor
Sugar Land, Texas 77479
Telephone (281) 277-1500
Facsimile (281) 277-15050
Email: Scott@westfirm.com
Email: WestTeam@westfirm.com
TTORNEYS FOR LAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that on this th day of December 2022, a true and correct copy of the
foregoing instrument was forwarded to all counsel of record by electronic service.
Joel B. Pardo
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ICENSED IN
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ICENSED IN EW
EBSTER
EIDI ICKNAIR
HELSIE ING USSELL ERAFIN
HRISTIAN OBERT ARRINGER
OEL
Porshia Finch-Allen et. al vs. Good Hearts Youth and Family Services, Inc;
is letter pertain to your Motion for Continuance Based on Undisclosed Evidence filed
December 5, 2022You did not call me to confer about the Motion but regardless my intent is
to make a good faith effort to resolve your concerns so that both our clients can finally have justice
Over a year ago, Good Hearts was given notice that Plaintiff treated with multiple
at Innova for a short time for trauma related to death of her son. Good Hearts had those
initial records when Mr. Cabe deposed the owner of Innova, Dr. Kasi Howard, and free to
As you know, Plaintiff briefly treat Innova for a second time for her general health
and well-being from ber 19 through September 30, 2022. I have informed you both
ltiple times that (1) Plaintiff never intended to seek compensation for medical bills related to
ese recent visits; and (2) Plaintiff stipulates that she has no intent to use the mental health records
from these recent treatments in support of her mental anguish or loss of consortium
Accordingly, any insinuation that Plaintiff’s attorneys facilitated this treatment to bolster h
At her IME on October 31, 2022, Plaintiff informed Good Hearts’ retained expert, Dr.
Boake, about her second visits to Innova only 30 days visits occurred. . Boake’s
IME report was produced 2 weeks later on ber 1 4, 2022. Mr. McCabe indicated in writing
that he was informed about Plaintiff’s second visits to Innova from Dr. Boake. Plaintiff’s counsel
I do not believe the hypocrisy of motion complaining about a delay in notice and or production of records
that Plaintiff has stipulated she will use in no way at trial will go unnoticed by the Court when consideri that Good
arts intentionally withheld the most germane records in this case for over two years while repeatedly assuring
Plaintiff’s counsel they were produced
did not these records as the first time rds came into Plaintiff’s coun
September 16, 20 Court preferentially set this case for r 13
trial is set for this case on December 8, 2 t is indisputable that Good Hearts waited
after learning about the ’s second Innova to request a contin
December 5, 2 Good Hearts requested a continuance based on ’s second visit
(D) Any known ground for continuance of the trial setting shall be presented to the
Court at least 14 days prior to the trial setting or at the pretrial conference, if any,
od Hearts ha ovember 24, to file its for conti
s for are waived under le 3.29 D). This was
after Good Hear received notice about Plaint’s se to Innova through Dr. B
10 days after Dr. Boake formally produced his IME report to Plaintiff plain and
of Rule , Good Hearts has its gro to seek
, Defendant Good Hearts has not been prejudiced by timing of the production
of the Plaintiff never intended to use any way for this case o the extent
Good Hearts chooses to use the reco in presenting its case at trial, Good Hets will
pportunity to examine the owner of Innova, Dr. Kasi Howard, and Plaintiff Po
en though Good Hearts basis for moving for has been waived and w
ability to assert her and/or objection in order to remove
y basis for Defendant Good Hearts to claim Plaintiff is offering to present the
of Innova Recovery, Dr. Kasi Howard, and of counseling that saw Ms. F
en now and the time of trial or even if necessary one evening during trial
limited to the September 19 tember 30 Innova record that Plaintiff has no intent to use at tr
Although I may not be as experienced as Mr. M, even in my young career I have
aken depositions multiple times before trial n an evening during trial
each of you has similar experiences To be frank, it be apparent to
student that this case is ready for tri, and it is in the best interest of both our clients to move past
experience for all those nless your insurance adjuster
for you in violation of do what we need nock out this trial and get
let me you decide about the dep as soon as possible Please note
that in event you choose to o forward with the motion for on Thurday and it gets
, absent a ourt order I y not agree to prod these witnesses, which would sll allow
t is also my understanding that you are seeking a based on the recent
disclosure my ” C isanne H at West Texas Family Med
Plainview, Te I refuse to clean off the wall for you is a
who lost her son and has never claimed any physica at any time during
this case. West Texas Family Medicine is the Urgent Care” and Plaintiff visited
this establish ingle time for standard up that to d
with this case. This request is and seeks to revictimize Plaintiff, and we object to any
Exhibit B
EXHIBIT E
Defendants Good Hearts Youth and Family Services, Taelor Harmen, Angela
Facciponte, and Joyce Walker, by and through their attorneys of record Zandra E.
Foley and Robert McCabe of THOMPSON OUSINS RONS, L.L.P., One
Defendants Michelle and Jeffrey Ferguson, by and through their attorney of
record, Matthew Cross of SMITH SBURN ROSS, 6320 Southwest Blvd, Suite 101,
Defendant Esther Davidson, by and through her attorney of record, Nancy Knox-
Pursuant to Texas Rules of Civil Procedure 193 and 194, Plaintiff Porschia Finch-
Allen Individually and As Representative of the Estate of B.A., a Deceased Minor, hereby
serves the following Third Supplemental Responses to Defendants’ Requests for
AMSEY AW ROUP
HE AW I RM
RISBANE OURT
HIRD LOOR
UGAR EXAS
YATT AW IRM
TTORNEYS FOR LAINTIFFS
ERTIFICATE OF ERVICE
that the foregoing document was served on the below
MITH SBURN ROSS
HOMPSON OUSINS RONS
been named correctly, and believe the other parties
The legal theories and, in general, the factual bases of the responding party’s
Plaintiff FinchAllen gave birth to her son B.A., a Deceased Minor,
on January 16, 2007. Plaintiff FinchAllen was fourteen (14) years old at the time
of B.A.’s birth and immediately encountered issues caring for her son due to the
circumstances of her environment. Plaintiff FinchAllen’s ability to care for her
son was further stressed when B.A. was medically diagnosed with a seizure
disorder, hyperthyroidism, and autism spectrum disorder. Upon information
and belief, prior to his death, B.A. was also diagnosed with a serious condition
known as adrenal deficiency disorder. B.A. required extensive medical care and
Upon information and belief, on or about August of 2017, the Texas Department
of Family and Protective Services (“TDFPS”) exercised custody over B.A. and
contracted with Defendant Good Hearts to locate foster parents with the
experience and qualifications necessary to provide a living environment in
compliance with Section 264.107 (c) of the Texas Family Co for B.A., until
Upon information and belief, Defendant Good Hearts is owned and operated
by Defendant Joyce . Defendant Good Hearts placed B.A. in the foster
care of Defendants Michelle and Jeffery Ferguson at their home located at 20114
Pebble Hollow Lane in Richmond, Texas 77407 (“Subject Foster Home”). Upon
information and belief, Defendant Good Hearts was responsible for vetting,
monitoring, and overseeing the Fergusons’ care of B.A. Defendant Good Hearts’
employees, Defendants Taelor Harmon and Angela Facciponte, were assigned
as case workers to ensure that Defendant Good Hearts’ responsibility
In selecting a placement for a child, the department shall consider whether the placement is in the child's
best interest In determining whether a placement is in a child's best interest, the department shall consider
whether the placement: (1) is the least restrictive setting for the child; (2) is the closest in geographic
proximity to the child’s home; (3) is the most able to meet the identified needs of the child; and (4) satisfies
any expressed interests of the child relating to placement, when developmentally appropriate. Tex. Fam.
Code § 264.107(c)
pertaining to Defendants Michelle and Jeffery Ferguson was prudently carried
Defendants Michelle and Jeffery Ferguson assumed custody of B.A. as his foster
care parents on or about August 24, 2017. Upon information and belief,
Defendants Michelle and Jeffery Ferguson received additional compensation
from the state of Texas for caring for B.A., because he was diagnosed as a special
Upon information and belief, Defendant Michelle Ferguson had express notice
of B.A.’s propensity to suffer from seizures and his specific need to be
supervised and/or monitored while bathing at least six (6) months prior to the
incident that forms the basis of this suit. Further, Defendant Michelle Ferguson
had express notice of B.A.’s adrenal deficiency condition at least two (2) months
prior to his death. At this time, Defendant Michelle Ferguson was also expressly
notified by B.A.’s physicians of the severity of his conditions and the
Upon information and belief, Defendants Michelle and Jeffery Ferguson were
Upon information and belief, Defendants Michelle and Jeffery Ferguson took a
vacation to North Carolina on the weekend of July 20, 2018. According to reports
from the TDFPS, Defendants Michelle and Jeffery Ferguson failed to notify the
TDFPS of their intention to leave B.A. in another’s care while taking this
Upon further information and belief, Defendant Good Hearts intended to move
B.A. from the Subject Foster Home and revoke Defendants Michelle and Jeffery
Fergusons’ foster care privileges the week following B.A.’s death due to reports
and/or allegations of child abuse. Further, according to records from the
TDFPS, the ultimate goal for B.A. was reunification with his mother
B.A.’s placement at the Subject Foster Home was tentative and never considered
Upon information and belief, on the weekend of July 20, 2018, Defendants
Michelle and Jeffery Ferguson left B.A. improperly supervised in the care of
while on vacation. Defendant Davidson had never cared for B.A. prior to this
occasion. Upon information and belief, Defendant Davidson was employed as
According to TDFPS documents, Defendants Michelle and Jeffery Ferguson
failed to leave Defendant Davidson with adequate information and instructions
regarding B.A.’s medical conditions, medical care, and medications. Upon
ormation and belief, Defendants Michelle and Jeffery Ferguson failed to
wait for Defendant Davidson to arrive at the Subject Foster Home before
leaving the children for their vacation. All Defendants knew that B.A. needed
special attention during bath timas was specifically articulated in B.A.’s
Upon information and belief, on the evening of July 20, 2018, Defendant
Davidson finished serving dinner to the Fergusons’ foster children, when B.A.’s
foster brother went upstairs to draw B.A.’s bath. Approximately twenty (20)
minutes later, the Fergusons’ nineteen (19) year old daughter went into the
bathroom for toilet paper and found B.A. unresponsive in the bathtub and not
Emergency services were called to the scene and attempted to resuscitate B.A.
upon arrival. B.A. was then rushed to Memorial Hermann Hospital where
machines kept him alive for two days until his biological mother, Plaintiff
Allen, could make the nine (9) hour drive from Plainview, Texas to be by
his side as he was taken off the machines. On or about July 22, 2018, B.A. was
removed from breathing machines and passed away in his hospital bed with
The medical examiner determined B.A.’s cause of death to be drowning. The
investigating authorities determined that B.A. suffered a seizure and then
drowned after becoming submerged in his bath water. Further, B.A. was not on
any seizure medication or adrenal deficiency medication at the time of his death.
Upon information and belief, Defendant Good Hearts failed to ensure B.A.’s
accurate medical history was available to his foster parents and physicians
Upon information and belief, Mrs. Davidson did not meet the requirements of
a Respite Caregiver as set forth in Section 8412.51 of the Texas Department of
Family and Protective Services Handbook and no entity or individual that met
the aforementioned requirements for a Respite Caregiver was present to
tiff has been completely devasted by her son’s death and continues to
suffer serious and permanent injuries as a direct result of Defendants’
Texas Department of Family and Protective Services Handbook § 8412.5. (“[i]n home respite care must
be provided by individuals who: (1) have been specifically trained to provide respite care to children with
special needs; or (2) have been selected by the adoptive family to provide respite care and approved in the
service plan for that purpose”).
Michelle and Jeffery Ferguson Negligent
Undertaking, Gross Negligence, and Negligence Per Se
Defendants committed actions of omission and commission, which collectively
and severally, constituted negligence, negligent undertaking, gross negligence,
and negligence per se, which were proximate causes of the injuries and damages
Defendants had a duty to exercise ordinary care and breached that duty in one
Failing to act as a reasonably prudent foster parent would in the same or
similar circumstances in regard to enforcing and implementing safety
Failing to monitor and/or supervise B.A. while bathing due to the risks
Failing to act as a reasonably prudent foster parent would in the same or
similar circumstances in regard to leaving B.A. improperly supervised for
Failing to notify Allen or the TDFPS that Defendants
Failing to ensure that B.A. received the appropriate medications to treat his
Failing to follow B.A.’s physician’s treatment orders in regarding to his
Failing to properly inform Defendant Davidson of the safety protocols and
procedures required to appropriately care for B.A. in their absence
Failing to comply with the Texas Department of Family Protective Services
Handbook relating to Respite Care at Section 8412.5051 of the Texas
Further, Defendants undertook, gratuitously or for consideration, the
responsibility to provide a safe environment, care for, and supervise B.A. In
doing so, Defendants failed to exercise reasonable care when caring for and
supervising B.A. Defendants’ failure to exercise reasonable care increased the
risk of harm to B.A. Plaintiff relied upon the undertakings of Defendants to her
The acts or omissions of Defendants, when viewed objectively from their
standpoint at the time of their occurrence, involved an extreme degree of ris
considering the probability and magnitude of the potential harm to
These acts and omissions were more than momentary thoughtlessness,
inadvertence, or error of judgment. Rather, Defendants had actual, subjective
awareness of the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of others. Such acts and/or
omissions of gross negligence as the law defines it were each and all, separately
and concurrently, a proximate cause of the incident described above and the
resulting injuries and damages sustained by Plaintiff, as set forth herein, and it
is on the basis of such gross negligence that Plaintiff hereby seeks an award of
per se is one method of proving, through proof of an unexcused
violation of a statute, designed to protect the class of persons to which the
injured party belongs, the breach of duty required in any negligence cause of
Upon information and belief, Defendants’ acts and/or omissions violated the
Tex. Admin. Code 749.2593(a)(2), which provides that Defendants were
Tex. Admin. Code 749.2593(a)(3), which provides that Defendants were
responsible for providing the level of supervision necessary to ensure B.A.’s
safety and wellbeing, including auditory and/or visual awareness of B.A.’s
Admin. Code 749.2593(a)(4), which provides that Defendants were
responsible for being able to intervene when necessary to ensure each B.A.’s
Tex. Admin. Code 749.2593(a)(5), which provides that Defendants were
responsible for not performing tasks that clearly impede the caregiver’s
ability to supervise and interact with B.A. while being responsible for the
supervision of B.A. and meet any service planning requirement regarding
Tex. Admin. Code (5), which requires that Defendants take
into consideration factors such as B.A.’s age, autism, seizure disorder,
medical disorders, past issues bathing, emotional and social needs, among
Tex. Admin. Code 749.2593(c)(1), which requires that Defendants be aware
of the B.A.'s habits, interests, and any special needs, including any special
Tex. Admin. Code 749.2593(c)(2), which requires that Defendants provide
Tex. Admin. Code 749.2593(c)(5), which requires that Defendants ensure
continuity of care for B.A. by sharing with incoming caregivers’ information
about his activities during the previous shift and any verbal or written
At the time of the Subject Incident, B.A. was a member of the class the
aforementioned statues were intended to protect. Plaintiff’s injuries sustained
from Defendants’ violations of the aforementioned statutes are the type of
The aforementioned negligent conduct of Defendants on the occasion in
question was a proximate cause of the occurrence in question and the injuries
Defendants Good Hearts, Taelor Harmon, Angela Facciponte, Joyce
, and Esther DavidsonNegligence, Negligent Undertaking,
Defendants committed actions of omission and commission, which collectively
and severally, constituted negligence, negligent undertaking, and gross
negligence, which were proximate causes of the injuries and damages to
Defendants had a duty to exercise ordinary care and breached that duty in one
Failing to ensure the Fergusons were providing a safe environment for B.A.;
Failing to ensure that B.A. was properly cared for and supervised during the
Failing to ensure that the Fergusons were following the appropriate
Failing to ensure the Fergusons were obtaining the proper medications and
Failing to ensure the Fergusons had the appropriate information and records
Failing to remove B.A. from the Fergusons’ care and suspend their foster
Failing to appropriately investigate previous claims of child abuse against
Failing to properly supervise and monitor the Fergusons during their care of
Failing to safely care for and/or supervise B.A. during the Fergusons’
Further, Defendants undertook, gratuitously or for consideration, the
responsibility to provide a safe environment, care for, and supervise B.A. In
doing so, Defendants failed to exercise reasonable care when caring for and
supervising B.A. Defendants’ failure to exercise reasonable care increased the
risk of harm to B.A. Pla
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CAUSE NO. 20 DCV-271311 PORSCHIA FINCH ALLEN, IN THE DISTRICT COURT OF INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF B.A., A DECEASED MINOR Plaintiffs, VS. FORT BEND COUNTY, TEXAS MICHELLE F. FERGUSON, JEFFERY FERGUSON, GOOD HEARTS YOUTH AND FAMILY SERVICES, INC., TAELOR HARMON, ANGELA FACCIPONTE, JOYCE WATSON, ESTHER DAVIDSON Defendants. JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL DEPOSITIONS COMES NOW the Plaintiff Porschia Finch Allen, Individually and as epresentative of the Estate of B.A., a Deceased Minor Child Plaintiff”), by and through her attorney, and files this Response Defendants Good Hearts Youth and Family Services, Inc., Taelor Harmon, Angela Facciponte, and Joyce Watson (“Defendants”) Motion to Compel Depositions (“Motion”). In support of her positions, Plaintiff would show the Court as follows: INTRODUCTION Plaintiff has voluntarily agreed to produce the owner of Innova for deposition limited to the records for which Defendant Good Hearts is complaining. Plaintiff is not required to produce any witness in its control regarding these records prior to trial and cannot produce witnesses outside of its control. Defendants begin their Motion with a "goose and gander" statement referencing a previous Court Order from December 2020 compelling the production of germane documents The documents included protocols and trainings like the foster parent’s handbook and water safety training. See Plaintiff’s Motion to Compel and Motion for Sanctions filed in July of 2022. from Defendant Good Hearts. “ es and oranges” is a more appropriate statement. Defendant Good Hearts’ conveniently fails to admit after the Order was signed in December of 2020, Defendant’s counsel sent multiple written correspondence claiming documents had been produced–which was patently false. Defendant Good Hearts then withheld the germane documents, ignored a Court Order by failing to produce documents until May 2022. In the instant matter, Plaintiff's counsel has withheld no documents in its possession and this Court has found Defendants had notice of the mental health treaters whose depositions they seek to compel. Further, Plaintiff has voluntarily offered to produce the owner of Innova, Dr. Kasi Howard to give a deposition prior to trial regarding the records Defendant Good Hearts complains. Defendant’s counsel has acknowledged that Plaintiff has no control over Dr. Weiss and Plaintiff could not comply with a Court order compelling his production for deposition because of that lack of control—much less at a moment’s notice. Lastly, Defendants’ Motion to Compel at the eleventh hour of trial and following the Court’s hearing on December 8, 2022, where the Court expressed that any additional depositions would have to be conducted by agreement of the parties. Is further evidence of the negligence of the Defendants’ insurance carrier, and their counsel in the investigation, discovery, preparation, and evaluation of Plaintiff’s causes of action and damages in this matter. It is clear that this is yet another dilatory tactic by Defendants and that they are again seeking to obstruct the trial date in this case RELEVANT BACKGROUND On December , 2022, Defendants filed a Motion for Continuance as to this cause’s trial date. This Motion was filed untimely as it was filed only three days before this case’s pre trial See Plaintiff’s Motion to Compel and Motion for Sanctions filed in July of 2022. Id. -2- setting. Defendants ground their last minute Motion on the premise that medical records for a week and a half inpatient stay that Plaintiff underwent in late September of 2022, almost four years after the subject incident, and/or their non-disclosure was so material that a continuance is necessary in this cause. In their Motion for Continuance, Defendants also alleged they necessitated additional depositions such as the depositions of Plaintiff, her retained expert, and the owner of Innova Recovery Center, Dr. Kasi Howard, which had already been conducted previously in this litigationas a retained expert . This untimely filed Motion for Continuance was filed without any attempt to confer with Plaintiff’s counsel. Accordingly, Plaintiff delivered a correspondence to Defendants in a good faith attempt to confer with Defendants and to address their concerns. More specifically, Plaintiffs offered the depositions of Dr. asi Howard, the owner of Innova Recovery Center, and Em Green of Innova Recovery Center, the director of counseling that saw Plaintiff at Innova Recovery Center At the same time, Plaintiff explicitly informed Defendants that should they decide to continue to pursue their Motion for Continuance, that Plaintiff may not agree to produce the aforementioned witness : Please note that in the event you choose to go forward with the motion for continuance on Thursday and it gets denied, absent a Court order I may not agree to produce these witnesses, which would still allow you to examine Plaintiff and Dr. Howard about the content of Innova’s medical records at trial.” In response to Plaintiff’s good faith attempt to confer, Defendants filed a supplement to their Motion for Continuance on December 7, 2022. See Defendants’ Motion for Continuance. See Exhibit A, (Plaintiff’s Letter to Defendant’s Counsel Dated December 7, 2022 , Will Be Available For Review at the Hearing as Plaintiff Does not Intend to Publish Mental Health records in any form at Page 2. at Page 2. -3- In Plaintiff’s response to Defendant’s Motion for Continuance. Plaintiff presented several grounds for the Continuance’s denial such as the following: On October 10, 2022, Defendant Good Hearts independently sought out Plaintiff’s file and obtained the following record from the Hale Counting District Clerk’s Office giving Good Hearts express notice about Plaintiff’s September 19-30, 2022 visit to Innova. Illustration No. 1 On October 31, 2022, Plaintiff reports her 11 day visit to Innova at the IME of Defendant Good Hearts’ retained expertDr. Boake. On Page 3 of his report, Dr. Boake clearly indicates that he knew of the Plaintiff’s September 2022 visit to Innova prior to the IME. 10 On December 8, 2022, after the Court heard the Defendants’ Motion for Continuance, Plaintiff’s Response, pleadings, evidence, and arguments, the Court denied Defendants’ Motion for Continuance. The Court as a basis for denying Defendants’ Motion for Continuance, found that Defendants had adequate notice of Plaintiff’s September, 2022 visit to a timely disclosed See Exhibit B, (Receipt For Purchase Of Porshia Finch Allen’s Criminal File By Thompson Coe Dated October 10, 2022; See Exhibit C, (Letter Regarding Treatment of Care By Innova Recovery). Id. See Exhibit D (Report of Dr. Boake Will Be Available For Review at the Hearing as Plaintiff Does not Intend Publish Mental Health records in any form). -4- medical provider. Further, a the hearing, the Court expressed that any additional depositions would have to be conducted by agreement of the parties. ARGUMENTS & AUTHORITIES The scope of discovery is generally within a trial court’s discretion. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) But, a trial court is required to make an effort to impose reasonable limits to discovery Defendants’ Motion to Compel is untimely as it has been filed in the eleventh hour of trial and as Defendants have failed to diligently pursue discovery. 11 As Defendants included in their Motion, the rules of discovery prevent trial by ambush and ensure fairness. Defendants’ Motion should be denied because Defendants have not been unfairly surprised and/or will not suffer unfair prejudice as they failed to diligently pursue the discovery that they are coincidentally seeking at the eleventh hour of trial. Defendants had since October 10, 2022, when they undisputedly became aware of Plaintiff’s September 2022 visits to Innova to either attempt to schedule additional depositions, file a Motion to Compel, and/or had more than enough time to bring a continuance to the Court’s attention in a timely manner such depositions were desperately necessary prior to trial and to develop Defendants’ defenses. Accordingly, Defendants’ Motion should be denied because of the foregoing and as iscussed herein. This Motion should be denied because Defendants have not been unfairly surprised and will not suffer unfair prejudice as Defendants became aware of Plaintiff’s stay on October 10, 2022 See State v. Wood Oil Distributing, 751 S.W.2d 863, 865 (Tex. 1988) (Case where trial court denied a motion to continuance for additional depositions on the morning of trial -5- t is undisputed that Defendants became aware of Plaintiff’s stay on October 10, 2022,12 only about 10 days after Plaintiff was discharged from her stay and 61 days prior to this Court’s preferential trial setting. Consequently, Defendants became aware of Plaintiff’s stay and treatment almost immediately after her discharge and well enough before the December , 2022 trial setting In its Motion, Defendant points to how an employee of Innova Recovery Center nd Dr. Thomas Weiss reside over 150 miles away from Fort Bend County in the San Antonio area and are not in subpoena range under Rule 176.3. However, the fact that these individuals are not in subpoena range do not detract from the fact that Defendants were aware of Plaintiff’s recent stay at Innova Recovery Center since October 10, 2022, and were aware that Innova Recovery Center’s location in the San Antonio area, which has always been over 150 miles from Fort Bend County, Texas. Accordingly, Defendants had the opportunity to attempt to schedule additional depositions and/or file a timely motion to compel well enough before the December 13, 2022, preferential trial setting. Consequently, Defendants’ Motion should be denied because Defendants have not been unfairly surprised and will not suffer unfair prejudice as Defendants became aware of Plaintiff’s stay on October 10, 2022. is Motion should be denied because Defendants have not been unfairly surprised and will not suffer unfair prejudice as Plaintiff has fully complied with the Texas Rules of Civil Procedure and the Court’s Scheduling Order as to the disclosure of these records. In Plaintiff’s answer to interrogatory number 8, Plaintiff had already disclosed Innova Recovery Center which is where Plaintiff had her stay and already answers August 3, 2020 to the See Exhibit B, (Receipt For Purchase Of Porshia Finch Allen’s Criminal File By Thompson Coe Dated October 10, 2022; See Exhibit C, (Letter Regarding Treatment of Care By Innova Recovery). -6- 13 present This interrogatory was answered on November 20, 2020. 14 Defendants had two years to confer with Plaintiff as to the form of the substance of Plaintiff’s interrogatory answer including the entire month of November, 2022, but did not. Plaintiff’s responses to request for production number 1, 8, 18, and 21 Plaintiff had already disclosed Innova Recovery Center in its response to requests for production number 1, 8, and 18, and as Plaintiff supplemented the records from Plaintiff’s stay when the records came into Plaintiff’s possession 15 Further, Plaintiff was not obligated to supplement her response to request for production number 21 for these records, as this request seeks Plaintiff’s exhibits at trial, and Plaintiff will not be using the records from the stay as an exhibit at trial. 16 Further, with respect to the supplementation of Dr. Howard’s expert opinions, Plaintiff was not required to supplement. As not even a change in an expert’s opinion always necessitates supplementation. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 902 (Tex. App.Texarkana 2004, pet. denied). An expert is even allowed to change an opinion without supplementation if the opinion is an expansion on an already disclosed subject. Supplementation of expert designation opinions are only required when there is such a fundamental alteration that would constitute a surprise attack on the opposing party. JLG Trucking LLC v. Garza, 461 S.W.3d 554, 560 (Tex. App.—San Antonio 2013), rev'd, 466 S.W.3d 157 (Tex. 2015). In the instant matter, Plaintiff’s expert is not even changing her opinions. Plaintiff’s expert will still only be testifying about the already disclosed subject of Plaintiff’s mental anguish and will not be testifying about Plaintiff’s September 2022 stay. Consequently, there is See Exhibit , Plaintiff’s Answers and Objections to Defendant’s First Set of Interrogatories. . . -7- no alteration of Plaintiff’s expert’s testimony and there is no surprise attack that Defendant can even allege. Accordingly, Defendant’s Motion should be denied because Defendants have not been unfairly surprised and will not suffer unfair prejudice as Plaintiff has fully complied with the Texas Rules of Civil Procedure and the Court’s Scheduling Order as to the disclosure of these records. This Motion should be denied because Defendants have failed to establish that they are entitled to conduct the discovery that they are seeking and/or that they will suffer unfair surprise or prejudice More specifically, this Motion should be denied as: (1) Defendants fail to point to any new alleged change in Plaintiff’s mental anguish; (2) Defendants had already deposed Dr. Kasi Howard, owner of Innova, as a retained expert well before Plaintiff’s stay; (3) Defendants still have the same opportunity to cross examine Dr. Kasi Howard, owner of Innova, and Plaintiff as to these records at trial as they would have already had; () Plaintiff is not and will not be attempting to admit any billing or medical records for Plaintiff’s stay as evidence at trial; ( Defendants will still have the same opportunity to admit these billing or medical records at trial as they would have already had; and (6) there is already an over excessive amount of discovery that has been conducted on Plaintiff’s mental state including the independent medical examination that was conducted by Defendant after Plaintiff’s stay and which allowed Defendants to inquire as to Plaintiff’s mental state after her stay. None of these change regardless of when these medical records would have been produced. Defendants fail to point to any new alleged change in Plaintiff’s mental anguish While Defendants repeatedly claim that that there are material changes to Plaintiff’s mental health, Defendants have failed to point to any new alleged change in Plaintiff’s mental -8- anguish and how such change affects Plaintiff’s damages in this lawsuit Throughout their entire Motion, Defendants cry wolf and allege that there are new diagnosis but have not pointed to a single new diagnosis in their filings which is so material to theextent that Defendants are entitled to depositions at the eleventh hour of trial. To the extent that Defendants attempt to argue that Plaintiff’s suicidal tendencies and bipolar disorder are new diagnoses such as how they did in the December 8, 2022 hearing in this cause, they are not. Plaintiff has suffered from suicidal tendencies 17 and bipolar since she was a teenager and is not unheard of for a victim of sexual abuse. Defendants fail to point to how Defendant’s mental anguish has materially changed in any form in their Motion. Further, Defendants fail to point to and cannot argue that there has been a change in Plaintiff’s mental anguish after the performance of their independent medical examination which was done after Plaintiff’s stay. Accordingly, it is undisputed that Defendant has had the opportunity to examine Plaintiff’s mental health and mental anguish after Plaintiff’s stay. Defendants had already deposed Dr. Kasi Howard, owner of Innova, as a retained expertwell before Plaintiff’s stay Defendants are not entitled to conduct the discovery that they are seeking and/or will not suffer unfair surprise or prejudice as Defendants had already deposed Dr. Kasi Howard, owner of Innova, as a retained expert well before Plaintiff’s stay Plaintiff’s stay occurred in September of 2022, more than one year after the expert designations of both parties and the deposition of Dr. Kasi Howard, the owner of Plaintiff at Innova Recovery Center. Regardless of Plaintiff’s stay i September of 2022, Defendants had already conducted a deposition of Dr. Kasi Howard and would not have been entitled to a second deposition of Dr. Kasi Howard as this would have See Exhibit F, BATES FINCH ALLEN 008635 (Will Be Available For Review at the Hearing as Plaintiff Does not Intend to Publish Mental Health records in any form). -9- allowed Defendants a second bite at the apple, which Plaintiffs are graciously allowing Defendants to do by agreement as to the records of which Defendants complain. Defendants still have the same opportunity to cross examine Dr. Kasi Howard, owner of Innova, and Plaintiff at trial as they would have already had Defendants are not entitled to conduct the discovery that they are seeking and/or will not suffer unfair surprise or prejudice as Defendants still have the same opportunity to cross-examine Dr. Kasi Howard, owner of Innova, and Plaintiff as to these records at trial as they would have already had. Because Defendants had already deposed both Plaintiff and Dr. Kasi Howard, the owner of Innova Recovery Center, the next opportunity that Defendants would have had to cross examine Plaintiff and this medical provider would have been at and is at trial. Defendants still have this opportunity and will be entitled to cross examine this medical provider and Plaintiff about these medical records if they so choose to do so. While Defendants argue that the absence of another deposition of Plaintiff prior to trial will affect their ability to properly bring their failure mitigate defense at trial, it does not. The mitigation of damages doctrine requires an injured party to exercise reasonable care to minimize its damages, if the damages can be avoided with only slight expense and reasonable effort. Harris County v. Smoker, 934 S.W.2d 714, 721 (Tex. App.Houston [1st Dist.] 1996, writ denied). However, the party who caused the loss bears the burden of proving lack of diligence on the part of the plaintiff, and the amount by which the damages were increased by the failure to mitigate. Firstly, this argument fails because undergoing an inpatient stay that is longer than a month cannot be undergone with only slight expense and effort. Secondly, this argument fails because Defendant cannot attempt to prove Plaintiff’s mental anguish damages resulting from this lawsuit have increased because she did not undergo inpatient mental health care four years -10- after the death of her son, for mental health issues that she has had stemming from her teenage years such as suicidal tendencies and bipolar disorder. The mere recitation of such an argument is baffling. Third, this argument fails as Defendants will still have the opportunity to cross examine Dr. Howard as owner of Innova Recovery Center to this during Dr. Howard’s second deposition and at trial, will still have the opportunity to cross examine Plaintiff as to this at trial, and still had already the opportunity to examine Plaintiff as to this during Defendants’ independent medical examination, the month following Plaintiff’s stay. Consequently, Defendants will not be unfairly surprised or prejudiced as Defendants as they have already had the opportunity to do develop this defense prior to trial and will still have the opportunity to develop and present this defense at trial. Fourth, this argument fails and Defendants will not be unfairly surprised or prejudiced as Defendants were already aware of Plaintiff’s stay as of October 10, 2022 and were that such stay’s impact on their defense but nevertheless did not attempt to confer with Plaintiff as to these depositions, attempt to compel these depositions, or seek a continuance as to these depositions until the eleventh hour of trial. Further, Defendant has failed to provide legal authority for when the failure to mitigate doctrine has been applied in a similar matter. A matter involving mental health and mental anguish. Where a Defendant is attempting to argue that post incident care that is subsequently undergone as far as four years after the date of the subject incident can be applicable to a Defendant’s failure mitigate defense. Plaintiff is not and will not be attempting to admit any billing or medical records for Plaintiff’s stay as evidence at trial Defendants are not entitled to conduct the discovery that they are seeking and/or will not suffer unfair surprise or prejudice as Plaintiff is not and will not be attempting to admit any billing or medical records for Plaintiff’s stay as evidence at trial. Further, Plaintiff has no -11- intention of using any medical or billing records of Plaintiff’s stay at trial. Plaintiff is not seeking any compensation for medical bills regarding this stay at trial Plaintiff is not seeking any compensation for medical bills regarding these visits. Defendants will still have the same opportunity to admit these billing or medical records at trial as they would have already had Defendants are not entitled to conduct the discovery that they are seeking and/or will not suffer unfair surprise or prejudice as Defendants will still have the same opportunity to admit these billing or medical records at trial as they would have already had. While Plaintiffs have already repeatedly expressed that they will not be attempting to admit any billing or medical records for Plaintiff’s stay as evidence at trial. Defendants will still have the opportunity and volition to use these records at trial. here is already an over excessive amount of discovery that has been conducted on Plaintiff’s mental state and anguish including independent medical examination that was conducted by Defendant after Plaintiff’s stay and which allowed Defendants to inquire as to Plaintiff’s mental state after her stay This incident happened over four years ago and has been ongoing for more than two years. During this time, Defendants have already engaged in and conducted an over excessive amount of discovery as to Plaintiff’s mental state and anguish. Plaintiff did not even suffer physical injury herself directly from the event that caused her son’s death. Plaintiff has not only brought mental anguish claims but has also brought loss of consortium and survival estate claims. All while Defendants have been allowed to conduct written discovery, oral depositions, and expert discovery on Plaintiff’s mental anguish and mental state. Defendants even subjected Plaintiff to an independent medical examination. An independent medical examination which was conducted after Plaintiff’s September, 2022 stay and allowed Defendants to evaluate -12- Plaintiff’s mental anguish and mental state after her stay. Yet Defendants still claim that they need additional discovery. This behavior is ridiculous and should not be tolerated by the Court. is Motion should be denied as Plaintiff has already provided Defendants the opportunity to obtain the discovery that they seek in their Motion prior to trial Lastly, this Motion should be denied as Plaintiff has already provided Defendants the opportunity to conduct the alleged urgent discovery that is so desperately needed prior to trial that is under the ability of Plaintiff 18 More specifically, Plaintiff has provided Defendants with second deposition of Dr. Kasi Howard, the owner of Innova Recovery Center by agreement regarding the records Defendant Good Hearts complains. And Defendants already had an opportunity to depose Plaintiff as to her mental anguish and mental health during Plaintiff’s first deposition. Plaintiff is not required to produce any witness in its control regarding these records prior to trial and cannot produce witnesses outside of its control. Defendant’s counsel has acknowledged that Plaintiff has no control over Dr. Weiss and Plaintiff could not comply with a Court order compelling his production for deposition because of that lack of controlmuch less at a moment’s notice. IV. CONCLUSION WHEREFORE, premises considered, Plaintiff Porshia Finch Allen prays that the Court deny Defendants’ Motion to Compel and that Plaintiff be awarded any and all other relief that the court deems just and equitable. Plaintiffs and Defendant have agreed to a second deposition of Dr. Kasi Howard, owner of Innova Recovery on December 12, 2022, regarding the records Defendant Good Hearts complains -13- Respectfully Submitted, THE LAW OFFICES OF JOEL PARDO, P.C. _____________________________________ Joel B. Pardo State Bar No. 24083617 6200 Savoy Drive, Suite 150 Houston, Texas 77036 Telephone (281) 584-6670 Facsimile (281) 404-9230 Email: joel@lawofficesofjoelpardo.com THE WEBSTER LAW FIRM JASON C. WEBSTER State Bar No. 24033318 HEIDI O. VICKNAIR State Bar No. 24046557 CHRISTIAN TOVAR State Bar No. 24118561 6200 Savoy Drive, Suite 150 Houston, Texas 77036 713.581.3900 (telephone) 713.581.3907 (facsimile) filing@thewebsterlawfirm.com THE WEST LAW FIRM S. Scott West State Bar No. 21206920 Maddison M. West State Bar No. 24104633 6908 Brisbane Court, Third Floor Sugar Land, Texas 77479 Telephone (281) 277-1500 Facsimile (281) 277-15050 Email: Scott@westfirm.com Email: WestTeam@westfirm.com TTORNEYS FOR LAINTIFF -14- CERTIFICATE OF SERVICE I hereby certify that on this th day of December 2022, a true and correct copy of the foregoing instrument was forwarded to all counsel of record by electronic service. Joel B. Pardo -15- ICENSED IN UITE ICENSED IN ISSISSIPPI OUSTON EXAS ICENSED IN EW ORK ICENSED IN ENNSYLVANIA ICENSED IN KLAHOMA OLL ICENSED IN LLINOIS ICENSED IN ALIFORNIA ICENSED IN EW EBSTER EIDI ICKNAIR HELSIE ING USSELL ERAFIN HRISTIAN OBERT ARRINGER OEL Porshia Finch-Allen et. al vs. Good Hearts Youth and Family Services, Inc; is letter pertain to your Motion for Continuance Based on Undisclosed Evidence filed December 5, 2022You did not call me to confer about the Motion but regardless my intent is to make a good faith effort to resolve your concerns so that both our clients can finally have justice Over a year ago, Good Hearts was given notice that Plaintiff treated with multiple at Innova for a short time for trauma related to death of her son. Good Hearts had those initial records when Mr. Cabe deposed the owner of Innova, Dr. Kasi Howard, and free to As you know, Plaintiff briefly treat Innova for a second time for her general health and well-being from ber 19 through September 30, 2022. I have informed you both ltiple times that (1) Plaintiff never intended to seek compensation for medical bills related to ese recent visits; and (2) Plaintiff stipulates that she has no intent to use the mental health records from these recent treatments in support of her mental anguish or loss of consortium Accordingly, any insinuation that Plaintiff’s attorneys facilitated this treatment to bolster h At her IME on October 31, 2022, Plaintiff informed Good Hearts’ retained expert, Dr. Boake, about her second visits to Innova only 30 days visits occurred. . Boake’s IME report was produced 2 weeks later on ber 1 4, 2022. Mr. McCabe indicated in writing that he was informed about Plaintiff’s second visits to Innova from Dr. Boake. Plaintiff’s counsel I do not believe the hypocrisy of motion complaining about a delay in notice and or production of records that Plaintiff has stipulated she will use in no way at trial will go unnoticed by the Court when consideri that Good arts intentionally withheld the most germane records in this case for over two years while repeatedly assuring Plaintiff’s counsel they were produced did not these records as the first time rds came into Plaintiff’s coun September 16, 20 Court preferentially set this case for r 13 trial is set for this case on December 8, 2 t is indisputable that Good Hearts waited after learning about the ’s second Innova to request a contin December 5, 2 Good Hearts requested a continuance based on ’s second visit (D) Any known ground for continuance of the trial setting shall be presented to the Court at least 14 days prior to the trial setting or at the pretrial conference, if any, od Hearts ha ovember 24, to file its for conti s for are waived under le 3.29 D). This was after Good Hear received notice about Plaint’s se to Innova through Dr. B 10 days after Dr. Boake formally produced his IME report to Plaintiff plain and of Rule , Good Hearts has its gro to seek , Defendant Good Hearts has not been prejudiced by timing of the production of the Plaintiff never intended to use any way for this case o the extent Good Hearts chooses to use the reco in presenting its case at trial, Good Hets will pportunity to examine the owner of Innova, Dr. Kasi Howard, and Plaintiff Po en though Good Hearts basis for moving for has been waived and w ability to assert her and/or objection in order to remove y basis for Defendant Good Hearts to claim Plaintiff is offering to present the of Innova Recovery, Dr. Kasi Howard, and of counseling that saw Ms. F en now and the time of trial or even if necessary one evening during trial limited to the September 19 tember 30 Innova record that Plaintiff has no intent to use at tr Although I may not be as experienced as Mr. M, even in my young career I have aken depositions multiple times before trial n an evening during trial each of you has similar experiences To be frank, it be apparent to student that this case is ready for tri, and it is in the best interest of both our clients to move past experience for all those nless your insurance adjuster for you in violation of do what we need nock out this trial and get let me you decide about the dep as soon as possible Please note that in event you choose to o forward with the motion for on Thurday and it gets , absent a ourt order I y not agree to prod these witnesses, which would sll allow t is also my understanding that you are seeking a based on the recent disclosure my ” C isanne H at West Texas Family Med Plainview, Te I refuse to clean off the wall for you is a who lost her son and has never claimed any physica at any time during this case. West Texas Family Medicine is the Urgent Care” and Plaintiff visited this establish ingle time for standard up that to d with this case. This request is and seeks to revictimize Plaintiff, and we object to any Exhibit B EXHIBIT E Defendants Good Hearts Youth and Family Services, Taelor Harmen, Angela Facciponte, and Joyce Walker, by and through their attorneys of record Zandra E. Foley and Robert McCabe of THOMPSON OUSINS RONS, L.L.P., One Defendants Michelle and Jeffrey Ferguson, by and through their attorney of record, Matthew Cross of SMITH SBURN ROSS, 6320 Southwest Blvd, Suite 101, Defendant Esther Davidson, by and through her attorney of record, Nancy Knox- Pursuant to Texas Rules of Civil Procedure 193 and 194, Plaintiff Porschia Finch- Allen Individually and As Representative of the Estate of B.A., a Deceased Minor, hereby serves the following Third Supplemental Responses to Defendants’ Requests for AMSEY AW ROUP HE AW I RM RISBANE OURT HIRD LOOR UGAR EXAS YATT AW IRM TTORNEYS FOR LAINTIFFS ERTIFICATE OF ERVICE that the foregoing document was served on the below MITH SBURN ROSS HOMPSON OUSINS RONS been named correctly, and believe the other parties The legal theories and, in general, the factual bases of the responding party’s Plaintiff FinchAllen gave birth to her son B.A., a Deceased Minor, on January 16, 2007. Plaintiff FinchAllen was fourteen (14) years old at the time of B.A.’s birth and immediately encountered issues caring for her son due to the circumstances of her environment. Plaintiff FinchAllen’s ability to care for her son was further stressed when B.A. was medically diagnosed with a seizure disorder, hyperthyroidism, and autism spectrum disorder. Upon information and belief, prior to his death, B.A. was also diagnosed with a serious condition known as adrenal deficiency disorder. B.A. required extensive medical care and Upon information and belief, on or about August of 2017, the Texas Department of Family and Protective Services (“TDFPS”) exercised custody over B.A. and contracted with Defendant Good Hearts to locate foster parents with the experience and qualifications necessary to provide a living environment in compliance with Section 264.107 (c) of the Texas Family Co for B.A., until Upon information and belief, Defendant Good Hearts is owned and operated by Defendant Joyce . Defendant Good Hearts placed B.A. in the foster care of Defendants Michelle and Jeffery Ferguson at their home located at 20114 Pebble Hollow Lane in Richmond, Texas 77407 (“Subject Foster Home”). Upon information and belief, Defendant Good Hearts was responsible for vetting, monitoring, and overseeing the Fergusons’ care of B.A. Defendant Good Hearts’ employees, Defendants Taelor Harmon and Angela Facciponte, were assigned as case workers to ensure that Defendant Good Hearts’ responsibility In selecting a placement for a child, the department shall consider whether the placement is in the child's best interest In determining whether a placement is in a child's best interest, the department shall consider whether the placement: (1) is the least restrictive setting for the child; (2) is the closest in geographic proximity to the child’s home; (3) is the most able to meet the identified needs of the child; and (4) satisfies any expressed interests of the child relating to placement, when developmentally appropriate. Tex. Fam. Code § 264.107(c) pertaining to Defendants Michelle and Jeffery Ferguson was prudently carried Defendants Michelle and Jeffery Ferguson assumed custody of B.A. as his foster care parents on or about August 24, 2017. Upon information and belief, Defendants Michelle and Jeffery Ferguson received additional compensation from the state of Texas for caring for B.A., because he was diagnosed as a special Upon information and belief, Defendant Michelle Ferguson had express notice of B.A.’s propensity to suffer from seizures and his specific need to be supervised and/or monitored while bathing at least six (6) months prior to the incident that forms the basis of this suit. Further, Defendant Michelle Ferguson had express notice of B.A.’s adrenal deficiency condition at least two (2) months prior to his death. At this time, Defendant Michelle Ferguson was also expressly notified by B.A.’s physicians of the severity of his conditions and the Upon information and belief, Defendants Michelle and Jeffery Ferguson were Upon information and belief, Defendants Michelle and Jeffery Ferguson took a vacation to North Carolina on the weekend of July 20, 2018. According to reports from the TDFPS, Defendants Michelle and Jeffery Ferguson failed to notify the TDFPS of their intention to leave B.A. in another’s care while taking this Upon further information and belief, Defendant Good Hearts intended to move B.A. from the Subject Foster Home and revoke Defendants Michelle and Jeffery Fergusons’ foster care privileges the week following B.A.’s death due to reports and/or allegations of child abuse. Further, according to records from the TDFPS, the ultimate goal for B.A. was reunification with his mother B.A.’s placement at the Subject Foster Home was tentative and never considered Upon information and belief, on the weekend of July 20, 2018, Defendants Michelle and Jeffery Ferguson left B.A. improperly supervised in the care of while on vacation. Defendant Davidson had never cared for B.A. prior to this occasion. Upon information and belief, Defendant Davidson was employed as According to TDFPS documents, Defendants Michelle and Jeffery Ferguson failed to leave Defendant Davidson with adequate information and instructions regarding B.A.’s medical conditions, medical care, and medications. Upon ormation and belief, Defendants Michelle and Jeffery Ferguson failed to wait for Defendant Davidson to arrive at the Subject Foster Home before leaving the children for their vacation. All Defendants knew that B.A. needed special attention during bath timas was specifically articulated in B.A.’s Upon information and belief, on the evening of July 20, 2018, Defendant Davidson finished serving dinner to the Fergusons’ foster children, when B.A.’s foster brother went upstairs to draw B.A.’s bath. Approximately twenty (20) minutes later, the Fergusons’ nineteen (19) year old daughter went into the bathroom for toilet paper and found B.A. unresponsive in the bathtub and not Emergency services were called to the scene and attempted to resuscitate B.A. upon arrival. B.A. was then rushed to Memorial Hermann Hospital where machines kept him alive for two days until his biological mother, Plaintiff Allen, could make the nine (9) hour drive from Plainview, Texas to be by his side as he was taken off the machines. On or about July 22, 2018, B.A. was removed from breathing machines and passed away in his hospital bed with The medical examiner determined B.A.’s cause of death to be drowning. The investigating authorities determined that B.A. suffered a seizure and then drowned after becoming submerged in his bath water. Further, B.A. was not on any seizure medication or adrenal deficiency medication at the time of his death. Upon information and belief, Defendant Good Hearts failed to ensure B.A.’s accurate medical history was available to his foster parents and physicians Upon information and belief, Mrs. Davidson did not meet the requirements of a Respite Caregiver as set forth in Section 8412.51 of the Texas Department of Family and Protective Services Handbook and no entity or individual that met the aforementioned requirements for a Respite Caregiver was present to tiff has been completely devasted by her son’s death and continues to suffer serious and permanent injuries as a direct result of Defendants’ Texas Department of Family and Protective Services Handbook § 8412.5. (“[i]n home respite care must be provided by individuals who: (1) have been specifically trained to provide respite care to children with special needs; or (2) have been selected by the adoptive family to provide respite care and approved in the service plan for that purpose”). Michelle and Jeffery Ferguson Negligent Undertaking, Gross Negligence, and Negligence Per Se Defendants committed actions of omission and commission, which collectively and severally, constituted negligence, negligent undertaking, gross negligence, and negligence per se, which were proximate causes of the injuries and damages Defendants had a duty to exercise ordinary care and breached that duty in one Failing to act as a reasonably prudent foster parent would in the same or similar circumstances in regard to enforcing and implementing safety Failing to monitor and/or supervise B.A. while bathing due to the risks Failing to act as a reasonably prudent foster parent would in the same or similar circumstances in regard to leaving B.A. improperly supervised for Failing to notify Allen or the TDFPS that Defendants Failing to ensure that B.A. received the appropriate medications to treat his Failing to follow B.A.’s physician’s treatment orders in regarding to his Failing to properly inform Defendant Davidson of the safety protocols and procedures required to appropriately care for B.A. in their absence Failing to comply with the Texas Department of Family Protective Services Handbook relating to Respite Care at Section 8412.5051 of the Texas Further, Defendants undertook, gratuitously or for consideration, the responsibility to provide a safe environment, care for, and supervise B.A. In doing so, Defendants failed to exercise reasonable care when caring for and supervising B.A. Defendants’ failure to exercise reasonable care increased the risk of harm to B.A. Plaintiff relied upon the undertakings of Defendants to her The acts or omissions of Defendants, when viewed objectively from their standpoint at the time of their occurrence, involved an extreme degree of ris considering the probability and magnitude of the potential harm to These acts and omissions were more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Such acts and/or omissions of gross negligence as the law defines it were each and all, separately and concurrently, a proximate cause of the incident described above and the resulting injuries and damages sustained by Plaintiff, as set forth herein, and it is on the basis of such gross negligence that Plaintiff hereby seeks an award of per se is one method of proving, through proof of an unexcused violation of a statute, designed to protect the class of persons to which the injured party belongs, the breach of duty required in any negligence cause of Upon information and belief, Defendants’ acts and/or omissions violated the Tex. Admin. Code 749.2593(a)(2), which provides that Defendants were Tex. Admin. Code 749.2593(a)(3), which provides that Defendants were responsible for providing the level of supervision necessary to ensure B.A.’s safety and wellbeing, including auditory and/or visual awareness of B.A.’s Admin. Code 749.2593(a)(4), which provides that Defendants were responsible for being able to intervene when necessary to ensure each B.A.’s Tex. Admin. Code 749.2593(a)(5), which provides that Defendants were responsible for not performing tasks that clearly impede the caregiver’s ability to supervise and interact with B.A. while being responsible for the supervision of B.A. and meet any service planning requirement regarding Tex. Admin. Code (5), which requires that Defendants take into consideration factors such as B.A.’s age, autism, seizure disorder, medical disorders, past issues bathing, emotional and social needs, among Tex. Admin. Code 749.2593(c)(1), which requires that Defendants be aware of the B.A.'s habits, interests, and any special needs, including any special Tex. Admin. Code 749.2593(c)(2), which requires that Defendants provide Tex. Admin. Code 749.2593(c)(5), which requires that Defendants ensure continuity of care for B.A. by sharing with incoming caregivers’ information about his activities during the previous shift and any verbal or written At the time of the Subject Incident, B.A. was a member of the class the aforementioned statues were intended to protect. Plaintiff’s injuries sustained from Defendants’ violations of the aforementioned statutes are the type of The aforementioned negligent conduct of Defendants on the occasion in question was a proximate cause of the occurrence in question and the injuries Defendants Good Hearts, Taelor Harmon, Angela Facciponte, Joyce , and Esther DavidsonNegligence, Negligent Undertaking, Defendants committed actions of omission and commission, which collectively and severally, constituted negligence, negligent undertaking, and gross negligence, which were proximate causes of the injuries and damages to Defendants had a duty to exercise ordinary care and breached that duty in one Failing to ensure the Fergusons were providing a safe environment for B.A.; Failing to ensure that B.A. was properly cared for and supervised during the Failing to ensure that the Fergusons were following the appropriate Failing to ensure the Fergusons were obtaining the proper medications and Failing to ensure the Fergusons had the appropriate information and records Failing to remove B.A. from the Fergusons’ care and suspend their foster Failing to appropriately investigate previous claims of child abuse against Failing to properly supervise and monitor the Fergusons during their care of Failing to safely care for and/or supervise B.A. during the Fergusons’ Further, Defendants undertook, gratuitously or for consideration, the responsibility to provide a safe environment, care for, and supervise B.A. In doing so, Defendants failed to exercise reasonable care when caring for and supervising B.A. Defendants’ failure to exercise reasonable care increased the risk of harm to B.A. Pla