Legal Document: Brent DePeppe, et al vs. Miguel A. Prada, MD, et al

On July 24, 2018 a Motion for Partial Summary Judgment - MOTION - PARTIAL SUMMARY JUDGMENT was filed involving a dispute between Brent Depeppe, Lauren Depeppe, and Anesthesiologists For Children, Children'S Health, Children'S Health System Of Texas, Children'S Medical Center Of Dallas, for MEDICAL MALPRACTICE in the District Court of Dallas County.

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FILED
DALLAS COUNTY
11/28/2018 3:44 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-18-09607

BRENT DEPEPPE and LAUREN §
DEPEPPE, both Individually, and as Next §
Friends of H.D., a minor child, §
§
Plaintiffs, §
§
v. § IN THE DISTRICT COURT OF
§
MIGUEL A. PRADA, M.D.; ADOLFO §
GONZALEZ, M.D.; BRADLEY BARTH, § DALLAS COUNTY, TEXAS
M.D., ROBERT FOGLIA, M.D.; RON §
MITCHELL, M.D.; FREDERICK §
SKLAR, M.D.; CHILDREN’S HEALTH § 160TH JUDICIAL DISTRICT COURT
SYSTEM OF TEXAS d/b/a §
CHILDREN’S HEALTH, and §
CHILDREN’S MEDICAL CENTER OF §
DALLAS and ANESTHESIOLOGISTS §
FOR CHILDREN; THE UNIVERSITY OF §
TEXAS SOUTHWESTERN §
MEDICAL CENTER; ROPER §
TECHNOLOGIES, INC.; and, §
VERATHON, INC. §
§
Defendants. §

DEFENDANT VERATHON, INC.’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant Verathon, Inc. (“Verathon”), pursuant to Texas Rule of Civil Procedure 166a,

files this Motion for Partial Summary Judgment, and, in support thereof, states:

INTRODUCTION

This case arises from injuries allegedly sustained by H.D., a minor, when physicians at

Children’s Medical Center of Dallas (“Children’s Medical”) attempted to intubate her on May 12,

2016, with the assistance of a medical device allegedly manufactured by Verathon. H.D.’s parents,

Brent and Laura DePeppe (“Mr. and Mrs. DePeppe”), filed this action on July 24, 2018, asserting

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 1
20110782
negligence, strict products liability, and express warranty claims against Verathon. Mr. and Mrs.

DePeppe assert these claims in their individual capacities and on behalf of H.D.

Verathon hereby moves the Court for summary judgment with respect to three aspects of

Plaintiffs’ claims on the following grounds:

(i) Mr. and Mrs. DePeppe’s individual negligence and strict liability claims are barred
by the applicable statute of limitations;

(ii) Plaintiffs’ express warranty claims fail as a matter of law for want of privity
between Plaintiffs and Verathon; and

(iii) Plaintiffs’ claims of negligent failure to issue post-sale warnings and negligent
failure to recall the allegedly defective product fail because Verathon has no duty
under Texas law to issue post-sale warnings or to recall its products.

STATEMENT OF MATERIAL FACTS

1. On May 12, 2016, Dr. Miguel Prada, a pediatric anesthesiologist, attempted to

intubate H.D. using an endotracheal tube in preparation for a planned surgery. To assist with the

placement of the endotracheal tube, Dr. Prada allegedly employed the GlideScope system, a video

laryngoscope system manufactured by Verathon. Exhibit A, Pls’ Orig. Pet. at 10-19.

2. Complications arose during the attempted intubation which resulted in a temporary

loss of H.D.’s airway. Although H.D.’s airway was eventually restored, the temporary oxygen

deprivation caused her.to enter cardiac arrest and ultimately suffer anoxic brain injury. Exhibit

A, Pls’ Orig. Pet. at 10-19.

3. Verathon’s GlideScope components are prescription-only medical devices; thus,

Verathon has never sold or otherwise distributed any GlideScope or GlideScope components to

Plaintiffs. Exhibit B, Affidavit of Mary Moore.

4. Plaintiffs’ Original Petition was filed on July 24, 2018. Exhibit A, Pls’ Orig.

Petition.

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 2
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ARGUMENT AND AUTHORITIES

A. Summary Judgment Standard

Summary judgment is appropriate when the moving party establishes that no genuine

issues of material fact exist, and that the movant is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). A

defendant who conclusively negates at least one of the essential elements of the plaintiff’s causes

of action or who conclusively establishes all elements of an affirmative defense is entitled to

summary judgment. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Cathey

v. Booth, 900 S.W.2d 339, 441 (Tex. 1995).

B. Mr. and Mrs. DePeppe’s negligence and strict liability claims are time-barred.

Mr. and Mrs. DePeppe, in their individual capacities, assert negligence and strict products

liability claims against Verathon. Exhibit A, Pls’ Orig. Pet. at 1. Because these claims arise from

personal injuries—those allegedly sustained by H.D.—they are subject to the two-year statute of

limitations codified in Section 16.003 of the Texas Civil Practice and Remedies Code. TEX. CIV.

PRAC. & REM. CODE § 16.003; Upjohn v. Freeman, 885 S.W.2d 538, 542 (Tex. App.—Dallas

1994, writ denied). As such, Mr. and Mrs. DePeppe were required to bring those claims within

two years of the date those causes of action accrued. See Childs v. Haussecker, 974 S.W.2d 31,

36 (Tex. 1998) (“A plaintiff must commence a suit for personal injuries within two years after the

day the cause of action accrues.”). Mr. and Mrs. DePeppe failed to do so, and Verathon is entitled

to summary judgment on those claims as a result.

Under Texas law, a cause of action accrues when a legal injury is sustained. Id.1 Here, it

is undisputed that H.D.’s injuries— i.e., loss of airway resulting in cardiac arrest and anoxic brain

1
Although the discovery rule operates as an exception to this general rule of accrual, it is not applicable here. In
Texas, the discovery rule applies only “in those rare cases when ‘the nature of the injury is inherently undiscoverable

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 3
20110782
injury—were sustained on May 12, 2016. See Exhibit A, Pls’ Orig. Pet. at 10-19. Mr. and Mrs.

DePeppe were, therefore, required to file their negligence and strict product liability claims on or

before May 13, 2018, but did not do so until July 24, 2018, seventy-three days after those claims

expired. Id. As a consequence, Mr. and Mrs. DePeppe’s negligence and strict product liability

claims are time-barred, and Verathon is entitled to summary judgment with respect to those claims

as a matter of law.

C. Plaintiffs’ express-warranty claim fails for lack of privity.

All three Plaintiffs claim a right to recover from Verathon based on an alleged “[b]reach

of an express warranty pertaining to the product, including but not limited to misrepresentations

concerning the safety and efficacy of the subject product.” Exhibit A, Pls’ Orig. Pet. at 30.

Verathon is entitled to summary judgment on Plaintiffs’ express-warranty claim because Verathon

has never sold or otherwise distributed any of its prescription-only GlideScope devices to

Plaintiffs, and, thus, there is no privity of contract between Verathon and the Plaintiffs. See

Exhibit B, Affidavit of ____________.

Under Texas law, privity between the plaintiff and the defendant is an essential element of

an express-warranty claim for personal injuries. Lujan v. Tampo Mfg. Co., 825 S.W.2d 505, 511

(Tex. App.—El Paso 1992, no writ) (“Without privity, [plaintiff] could have no cause of action for

personal injuries based on breach of an express warranty.”); see also Barragan v. General Motors

LLC, No. 4:14-CV-93-DAE, 2015 WL 5734842, at *9 (W.D. Tex. September 30, 2015) (“To

recover for breach of express warranty, the plaintiff must be in privity with the manufacturer or

and the evidence of injury is objectively verifiable.’”
Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998) (quoting
Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994)). An injury is inherently undiscoverable
if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.
S.V. v. R.V.,
933 S.W.2d 1, 7 (Tex. 1996). Here, the injuries complained of indisputably manifested on May 12, 2016, when H.D.
suffered a loss of airway and went into cardiac arrest following the attempted intubation by Dr. Prada. Exhibit A,
Pls’ Orig. Pet. at 10-14.

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 4
20110782
seller of the product.”); Well Head Welders, Inc. v. Techalloy Co., No. 14-96-01232-CV, 1999 WL

314795, at *6 (Tex. App.—Houston [14th Dist.] May 20, 1999, no pet.) (“Texas courts still

generally require privity between the buyer and seller for recovery on breach of express

warranty.”); Elsholtz v. Taser Intern., Inc., No. 4:05-CV-487-Y, 2007 WL 2781664, *5 (N.D. Tex.

September 25, 2007) (“[Plaintiff’s] express-warranty claim is unavailing inasmuch as she was not

the purchaser … Privity is required for an express warranty claim.”); Scott v. Dorel Juvenile

Group, Inc., 456 Fed. Appx. 450, 456 (5th Cir. 2012) (upholding summary judgment for defendant

on express warranty claims for lack of privity). “‘Privity’ is defined as a mutual or successive

relationship to the same rights of property.” Lujan, 825 S.W.2d at 511 (quoting Black’s Law

Dictionary (1979)). Or, in other words, “[a] buyer and seller stand in privity if they are in adjoining

links of the distribution chain.” In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prod. Liab.

Lit., 2016 WL 9559921, at*9 (N.D. Tex. October 3, 2016) (internal quotation marks omitted).

Privity is absent in this personal injury action because Verathon has never sold or otherwise

distributed any GlideScope products to Plaintiffs. Verathon is, therefore, entitled to a judgment as

a matter of law on Plaintiffs’ express warranty claim.

D. Verathon had no legal duty to issue post-sale warnings or recall products.

Plaintiffs claim a right to recover against Verathon in this action based on Verathon’s

alleged failure “to recall certain GlideScope models or issue post-sale warnings to users or

potential users advising of an increased risk of failed intubation ….” Exhibit A, Pls’ Orig. Pet.

at 29. Verathon is entitled to summary judgment with respect to these claims because Texas law

does not generally recognize a post-sale duty to warn of latently discovered risks or to recall

products. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174,

1185 (5th Cir. 1988); Dion v. Ford Motor Co., 804 S.W.2d 301, 311 (Tex. App.—Eastland 1991,

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 5
20110782
writ denied); Syrie v. Knoll Int’l, 748 F.2d 304, 311-12 (5th Cir. 1984 ); see also Am. Tobacco Co.,

Inc. v. Grinnell, 951 S.W.2d 420, 438 (Tex. 1997) (observing that Texas courts do not impose a

post-sale duty to take remedial measures).

CONCLUSION

WHEREFORE, premises considered, Verathon requests that the Court issue an order

granting Verathon summary judgment on: (i) Mr. and Mrs. DePeppe’s negligence and strict

product liability claims because those claims are time-barred; (ii) Plaintiffs’ breach of express

warranty claim for lack of privity between Plaintiffs and Verathon; and (iii) Plaintiffs’ negligent

failure to recall/issue post-sale warnings because Verathon had no legal duty to take either action.

Respectfully submitted,

BOWMAN AND BROOKE, LLP

By: /s/ Jonathan Smith
Kim M. Schmid
Admitted Pro Hac Vice
Molly J. Given
Admitted Pro Hac Vice
150 South First Street, Suite 3000
Minneapolis, Minnesota 55402
Tel.: (612) 339-8682
Fax: (612) 672-3200
Kim.Schmid@bowmanandbrooke.com
Molly.Given@bowmanandbrooke.com

Jonathan L. Smith
Texas Bar No.: 24088436
2901 Via Fortuna Drive, Suite 500
Austin, Texas 78746
Tel.: (512) 874-3853
Fax: (512) 874-3801
jonathan.smith@bowmanandbrooke.com

ATTORNEYS FOR DEFENDANT VERATHON,
INC.

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 6
20110782
CERTIFICATION OF SERVICE

I hereby certify that on the 28 day of November, 2018, a true and correct copy of Verathon
Inc.’s Motion for Partial Summary Judgment was electronically filed with the Clerk of the Court
using the e-filing system which sent notification of such filing to all known counsel of record in
accordance with and satisfaction of Texas Rule of Civil Procedure 21.

/s/ Jonathan L. Smith

Defendant Verathon, Inc.’s Motion for Partial Summary Judgment: Page 7
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EXHIBIT A
FILED
DALLAS COUNTY
7/24/2018 4:13 PM
FELICIA PITRE
13 CIT/CERT.MAIL DISTRICT CLERK

CAUSE NO. DC-18-09607 Alicia Mata

BRENT DEPEPPE and LAUREN DEPEPPE,
both Individually, and as Next Friends of
H.D., a minor child,

Plaintiffs,

v.
IN THE ______ COURT OF
MIGUEL A. PRADA, M.D.; ADOLFO
GONZALEZ, M.D.; BRADLEY BARTH,
M.D.; ROBERT FOGLIA, M.D.; RON
DALLAS COUNTY, TEXAS
MITCHELL, M.D.; FREDERICK SKLAR,
M.D.; CHILDREN'S HEALTH SYSTEM OF
TEXAS d/b/a CHILDREN'S HEALTH, and
______JUDICIAL DISTRICT COURT
CHILDREN'S MEDICAL CENTER OF
DALLAS and ANESTHESIOLOGISTS FOR
CHILDREN; THE UNIVERSITY OF
TEXAS SOUTHWESTERN MEDICAL
CENTER; ROPER TECHNOLOGIES, INC.;
and, VERATHON, INC.

Defendants.

PLAINTIFFS’ ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES BRENT DEPEPPE and LAUREN DEPEPPE, both Individually, and as

Next Friends of H.D., a minor, ("Plaintiffs") and file this Plaintiffs' Original Petition complaining

of Defendants MIGUEL A. PRADA, M.D., ADOLFO GONZALEZ, M.D., BRADLEY

BARTH, M.D., ROBERT FOGLIA, M.D., RON MITCHELL, M.D., FREDERICK SKLAR,

M.D., CHILDREN'S HEALTH SYSTEM OF TEXAS, CHILDREN'S HEALTH, CHILDREN'S

MEDICAL CENTER OF DALLAS, ANESTHESIOLOGISTS FOR CHILDREN, THE

UNIVERSITY OF TEXAS SYSTEM, THE UNIVERSITY OF TEXAS SOUTHWESTERN

MEDICAL CENTER, ROPER TECHNOLOGY, INC., and VERATHON, INC., and for cause

of action would show unto the Court as follows:

Page - 1 - of 34

Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
I. REQUEST FOR LEVEL 3 DISCOVERY CONTROL PLAN

1. Pursuant to Tex. R. Civ. P. Rule 190.1, Plaintiffs hereby request that discovery be

conducted under Level 3, Tex. R. Civ. P. 190.4.

2. Further, Plaintiffs move for an order that discovery be in accord with a discovery

control plan tailored to this case, pursuant to Rule 190.4(a).

II. PARTIES

1. Plaintiffs Brent DePeppe and Lauren DePeppe, Individually, and as Next Friends

of H.D., a minor, are all individuals residing in Dallas, Dallas County, Texas.

2. In compliance with Texas Civil Practice & Remedies Code §30.014, Plaintiff

Brent DePeppe states the last three digits of his social security number are 565 and the last three

digits of his Texas driver's license number are 153.

3. In compliance with Texas Civil Practice & Remedies Code §30.014, Plaintiff

Lauren DePeppe states the last three digits of her social security number are 333 and the last

three digits of her Texas driver's license number are 515.

4. Defendant Miguel A. Prada, M.D. is believed to be a physician licensed to

practice medicine in the State of Texas and may be served with civil process at 6621 Fannin

Street, Suite A3300, Houston, Texas 77030 or wherever he may be found.

5. Defendant Adolfo Gonzalez, M.D. is a physician licensed to practice medicine in

the State of Texas and may be served with civil process at 1935 Medical District Drive, Dallas,

Texas 75235 or wherever he may be found.

6. Defendant Frederick Sklar, M.D. is a physician licensed to practice medicine in

the State of Texas and may be served with civil process at 1920 W. Colorado, Dallas Texas,

75208 or wherever he may be found.

-2-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
7. Defendant Bradley Barth, M.D. is a physician licensed to practice medicine in the

State of Texas and may be served with civil process at 1935 Medical District Drive, Dallas,

Texas 75235 or wherever he may be found.

8. Defendant Robert Foglia, M.D. is a physician licensed to practice medicine in the

State of Texas and may be served with civil process at 1935 Medical District Drive, Dallas,

Texas 75235 or wherever he may be found.

9. Defendant Ron Mitchell, M.D. is a physician licensed to practice medicine in the

State of Texas and may be served with civil process at 2350 North Stemmons Freeway EN, 6th

Floor, F6212, Dallas, Texas or wherever he may be found.

10. Defendant Children's Health System of Texas (d/b/a Children's Health) and

Children's Medical Center of Dallas is a health care provider licensed under the laws of Texas

and doing business in Dallas County Texas, and may be served through its registered agent, CT

Corporation, 1999 Bryan Street, Suite 900, Dallas, TX 75201-3136.

11. Defendant Children's Health is a health care provider registered and licensed

under the laws of Texas and doing business in Dallas County Texas, and may be served through

its registered agent , Reginald Christian, 1935 Medical District Drive, Dallas, TX 75235.

12. Defendant Anesthesiologists for Children is a 162b, wholly-owned subsidiary of

Children's Health System d/b/a Children's Medical Center of Dallas and health care provider

licensed under the laws of Texas and doing business in Dallas County Texas, and may be served

through its registered agent CT Corporation, 1999 Bryan Street, Suite 900, Dallas, TX 75201-

3136.

13. Defendant University of Texas Southwestern Medical Center (hereinafter “UT

Southwestern”) is a health care facility licensed under the laws of the State of Texas and doing

-3-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
business in Dallas County, Texas. University of Texas Southwestern Medical Center may be

served with process by serving its president, Daniel K. Podolsky, M.D. at 5323 Harry Hines

Blvd., Dallas, TX 75390-9002 or wherever he may be found.

A. As the parent of its wholly-owned subsidiary Anesthesiologists for

Children, Children's Health System d/b/a Children's Medical Center of Dallas directs and/or

substantially exerts control over the operations of Anesthesiologists for Children.

B. Children's Health System d/b/a Children's Medical Center of Dallas and/or

Children's Health and/or Anesthesiologists for Children directs and/or controls and/or

substantially exerts control over Defendants Prada, Sklar, Gonzalez, Foglia, Cook, Barth, and/or

Mitchell while Defendants Prada, Sklar, Gonzalez, Foglia, Cook, Barth, and/or Mitchell are

serving at Children's Medical Center of Dallas.

C. Accordingly, there exists and at all relevant times herein existed, a unity of

interest and conduct between Children's Health System d/b/a Medical Center of Dallas and/or

Children's Health and/or Anesthesiologists for Children and/or Defendants Prada, Sklar,

Gonzalez, Foglia, Cook, Barth, and/or Mitchell with regard to the events in question and with

regard to other related conduct.

14. Defendant Roper Technologies, Incorporated in Delaware with corporate

headquarters located in Sarasota, Florida with rights to transact business in Texas and who

conducts business in Texas and may be served at its corporate headquarters pursuant to the Texas

Long-Arm Statute, Tex. Civ. Prac. & Rem. Code § 17.042.

15. Verathon, Inc. (a/k/a Verathon Medical Inc.) is a wholly-owned subsidiary of

Defendant Roper Technologies, Incorporated formed in Washington with rights to transact

-4-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
business in Texas and who conducts business in Texas and may be served at its corporate

headquarters pursuant to the Texas Long-Arm Statute, Tex. Civ. Prac. & Rem. Code § 17.042.

A. Defendants Roper Technologies, Incorporated and Verathon, Inc. have

sufficient "minimum contacts" with the State of Texas such that the imposition of jurisdiction

would not violate "Traditional notions of fair play and substantial justice.

B. As the corporate parent of its wholly-owned subsidiary Verathon, Inc.,

Roper Technologies, Incorporated directs and controls the operations of Verathon, Inc.

Accordingly, there exists and at all relevant times herein existed, a unity of interest, ownership,

and conduct between Roper Technologies, Incorporated and Verathon, Inc. with regard to the

manufacture, distribution, development, testing and labeling of the GlideScope in question and

with regard to other related conduct, such that any individuality and separateness between

defendants has ceased and these Defendants became the alter-ego of one another.

C. At all relevant times, Roper Technologies, Incorporated and Verathon,

Inc. acted in conjunction with each other in the development, marketing, production, labeling,

promotion, packaging, advertising, training, and/or selling to the general public, including

Plaintiffs. Defendants Roper and/or Verathon acted jointly and/or as each other's agents, within

the course and scope of their agency, with respect to the conduct alleged in this Complaint, such

that any individuality and separateness between Defendants had ceased and Defendants Roper

Technologies, Incorporated and Verathon, Inc. became the alter-ego of one another and are

jointly-liable for their misconduct and wrongful acts as alleged herein.

-5-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
III. JURISDICTION & VENUE

1. The court has Jurisdiction over the parties, the subject matter in controversy, and

the amount in controversy in this case. More specifically, the jurisdiction in this case is proper in

Texas for the following reasons:

A. The Court has jurisdiction over the Defendants because Defendants do

business in or reside in Texas, committed a tort in whole or in part in Texas and are amenable to

service by a Texas Court.

B. The Court has jurisdiction over the subject matter of the controversy in

this case, because Plaintiffs' asserted causes of action are based upon actions for damages under

Texas law and the damages are in excess of the minimum jurisdictional limits of the court,

exclusive of interest and costs.

C. The Court has jurisdiction over the amount in controversy in the above-

numbered and styled cause, because Plaintiffs' asserted claims and causes of action for damages,

interest, costs and other relief are based upon actions for damages under Texas law and the

damages are in excess of the minimum jurisdictional limits of the Court, exclusive of interests

and costs.

2. Venue is proper in Dallas County, Texas because it is the county in which all or a

substantial part of the events or omissions giving rise to the claims occurred. See Tex. Civ. Prac.

& Rem. Code § 15.002.

IV. CONDITIONS PRECEDENT AND PREREQUISITES

This suit is brought in part pursuant to the Texas Tort Claims Act. Plaintiffs would show

that all notice requirements and conditions precedent to filing suit pursuant to the Texas Tort

Claims Act have been completed, including the statutorily-required sixty-day notice and medical

-6-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
authorizations to Defendants, and Plaintiffs have fully complied with Tex. Civ. Prac. & Rem.

Code §§ 74.051 and 74.052.

V. DUTIES

1. At all times material hereto, Defendant Miguel Prada, M.D. (hereinafter

"Defendant Prada") was a licensed physician practicing in the State of Texas and represented to

Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At all

pertinent times, there existed a physician/patient relationship between Defendant Prada and

Plaintiffs. Defendant Prada also served under the direction, supervision and control of

Defendant's Children's Health System of Texas, Anesthesiologists for Children and/or Children's

Health and/or UT Southwestern, and/or Children's Medical Center of Dallas.

2. At all times material hereto, Defendant Adolfo Gonzalez, M.D. (hereinafter

"Defendant Gonzalez") was a licensed physician practicing in the State of Texas and represented

to Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At

all pertinent times, there existed a physician/patient relationship between Defendant Gonzalez

and Plaintiffs. Defendant Gonzalez also served under the direction, supervision and control of

Defendant's Children's Health System of Texas, Anesthesiologists for Children and/or Children's

Health and/or UT Southwestern, and/or Children's Medical Center of Dallas.

3. At all times material hereto, Defendant Frederick Sklar, M.D. (hereinafter

"Defendant Sklar") was a licensed physician practicing in the State of Texas and represented to

Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At all

pertinent times, there existed a physician/patient relationship between Defendant Sklar and

Plaintiffs. Defendant Sklar also served under the direction, supervision and control of

-7-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
Defendants' Children's Health System of Texas, and/or Children's Health and/or UT

Southwestern, and/or Children's Medical Center of Dallas.

4. At all times material hereto, Defendant Bradley Barth, M.D. (hereinafter

"Defendant Barth") was a licensed physician practicing in the State of Texas and represented to

Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At all

pertinent times, there existed a physician/patient relationship between Defendant Barth and

Plaintiffs. Defendant Barth also served under the direction, supervision and control of

Defendants' Children's Health System of Texas and/or Children's Health and/or UT

Southwestern and/or Children's Medical Center of Dallas.

5. At all times material hereto, Defendant Robert Foglia, M.D. (hereinafter

"Defendant Foglia") was a licensed physician practicing in the State of Texas and represented to

Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At all

pertinent times, there existed a physician/patient relationship between Defendant Foglia and

Plaintiffs. Defendant Folgia also served under the direction, supervision and control of

Defendants' Children's Health System of Texas and/or Children's Health and/or UT

Southwestern and/or Children's Medical Center of Dallas.

6. At all times material hereto, Defendant Ron Mitchell, M.D. (hereinafter

"Defendant Mitchell") was a licensed physician practicing in the State of Texas and represented

to Plaintiffs and to the public at large that he was a duly licensed, competent medical doctor. At

all pertinent times, there existed a physician/patient relationship between Defendant Mitchell and

Plaintiffs. Defendant Mitchell also served under the direction, supervision and control of

Defendants' Children's Health System of Texas and/or Children's Health and/or UT

Southwestern and/or Children's Medical Center of Dallas.

-8-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
7. At all times material hereto, Defendants Children’s Medical Center of Dallas;

Children's Health; Children's Health System; and/or Anesthesiologists for Children, through its

members, associates, employees, representatives, agents, and/or ostensible agents, represented to

the public at large and to Plaintiffs that it would provide competent health care.

8. At all times material hereto, Defendants Children’s Medical Center of Dallas;

Children's Health; Children's Health System; and Anesthesiologists for Children, through its

members, associates, employees, representatives, agents, and/or ostensible agents, also had a

provider/patient relationship with Plaintiffs.

9. Defendants Children’s Medical Center of Dallas; Children's Health; Children's

Health System; and Anesthesiologists for Children, through its members, associates, employees,

representatives, agents, and/or ostensible agents manifest, to such an extent the general public

and Plaintiffs reasonably believe Children's Medical Center of Dallas directs and/or controls

and/or substantially exerts control over Defendants Prada, Sklar, Gonzalez, Foglia, Cook, Barth,

and/or Mitchell while Defendants Prada, Sklar, Gonzalez, Foglia, Cook, Barth, and/or Mitchell

are serving at Children's Medical Center of Dallas.

10. At all times material hereto, Defendants Children’s Medical Center of Dallas;

Children's Health; Children's Health System; and/or Anesthesiologists for Children through its

members, associates, employees, representatives, agents, and/or ostensible agents maintain the

right to control the activity of Defendant Prada and/or Defendant Gonzalez and/or Defendant

Sklar and/or Defendant Foglia and/or Defendant Mitchell and/or Defendant Barth while

Defendants are serving at Children’s Medical Center of Dallas.

11. At all times hereto, Defendants Children’s Medical Center of Dallas; Children's

Health; Children's Health System; and/or Anesthesiologists for Children are vicariously liable

-9-
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
for the acts, errors, omissions, negligence, and/or fault of its employees, agents, ostensible

agents, and others acting on its behalf and/or any individual Children's Health maintains the right

to control the actions of pursuant to the doctrine of respondeat superior, which includes (but is

not limited to) Defendants Prada and/or Defendant Gonzalez and/or Defendant Sklar and/or

Defendant Foglia and/or Defendant Mitchell and/or Defendant Barth.

12. At all times material hereto Defendant UT Southwestern, through its members,

associates, employees, representatives, agents, and/or ostensible agents, represented to the public

at large and to Plaintiffs that it would provide competent health care. Defendant UT

Southwestern, through its members, associates, employees, representatives, agents, and/or

ostensible agents, also had a provider/patient relationship with Plaintiffs.

13. At all times material hereto, Defendants Roper Technologies, Incorporated and

Verathon, Inc. actively developed, marketed, produced, labeled, promoted, packaged, advertised,

trained, and/or sold tangible personal property to the general public, including Plaintiffs.

VI. CLAIMS FOR RELIEF

Plaintiffs seek monetary relief in excess of One Million Dollars ($1,000,000.00).

VII. STATEMENT OF FACTS

1. Lauren DePeppe and Brent DePeppe are the natural parents of H.D.

2. H.D. was born on March 11, 2015 and is Lauren and Brent's first child.

3. Shortly after her birth, H.D. was diagnosed with achondroplasia (dwarfism),

frontal bossing (protruding forehead), macrocephalia (abnormally large head), and plagiocephaly

(flat head syndrome).

4. On April 19, 2016 at Children's Medical Center of Dallas, Defendant Sklar

examined H.D.

- 10 -
Exhibit A to Verathon, Inc.'s Motion for Partial Summary Judgment
5. Defendant Sklar suggested to H.D.'s parents that H.D. undergo a routine

craniectomy operation to be performed by Defendant Sklar at Children's Medical Center.

6. H.D.'s craniectomy procedure was scheduled for May 12, 2016 at Children's

Medical Center of Dallas.

7. Anesthesia for H.D. for the craniectomy procedure was deemed necessary by one

or more Defendant(s) and assigned to a Children's Health's anesthesia team to be performed at

Children's Medical Center of Dallas.

8. Anesthesia for H.D. for the craniectomy procedure was deemed necessary and

assigned to Children's Health's anesthesia team, it was documented that H.D.'s airway posed a

potential difficult intubation.

9. A few days prior to the May 12, 2016 craniectomy procedure, H.D. started

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REDMOND, AIESHA Track Judge’s New Case

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November 28, 2018

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