Request for Judgment in MAYA WALNUT LLC vs. BRIAN LY, et al| Trellis.Law

On May 02, 2019 a Letter,Correspondence was filed involving a dispute between Maya Walnut Llc, and Ly, Brian, Ly, Leng Chiv, Ly, Sao Minh, Walnut Creek Center, Inc., for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
10/22/2021 5:17 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY

HAYNES BOONE ®
October 22, 2021

The Honorable Martin Hoffman
Judge, 68th District Court
George L. Allen, Sr. Courts Building
600 Commerce Street, Box 540
Dallas, Texas 75202

Re: No. DC-19-06309; Maya WalnutLLC v. Bryan Ly, et a].

DearJudge Hoffman:

We write to update the Court on the status of this proceeding and to request a short hearing
at the Court’s earliest convenience to address various issues relating to entry of judgment.

Unfortunately, the court-ordered mediation with Chris Nolland concluded on October 19
and was unsuccessful. The next day, Plaintiff ﬁled a proposed form of judgment. That proposed
judgment, however, contains several errors that counsel in favor of a short hearing. See
Defendants’ Objections to Plaintiff’s October 20, 2021 Proposed Form of Judgment, ﬁled earlier
today.

Chief among those errors is the requested $10 million punitive—damages award. At the
close of the JNOV hearing, the Court asked the parties about a medical-malpractice case with a
jury-charge issue “very similar” to the issue here. GNOV Hearing Tr. 40-43.) The Court’s
recollection at the hearing was right: that case, Jamga v. Colombrz'to,1 conﬁrms that no judgment can
be entered on the jury’s punitive-damages ﬁnding in this case. The following analysis of Janga
shows why.

In Janga, the patient-plaintiff sued his doctors, the hospital, and two nurses after they
rendered care that resulted in his permanent disability. 358 S.W.3d at 406. The nurses and hospital
settled before trial, but the nurses were not included on the jury charge as “settling person[s] ” as
required under TEX. CIV. PRAc. & REM. CODE § 33.003. Id. at 408. Besides being statutorily
deﬁcient, this meant the jury “could not assign proportionate responsibility to the Nurses, as
settling parties.” Id. at 414. So the court of appeals reversed and remanded for a new trial. Id.

While the issue here is not identical to that in Jamga—that case concerned compliance with
§ 33.003; this case concerns compliance with § 41.006—the controlling principles are the same.
Indeed, § 33.003 requires submission of “each” person who may have caused the harm; § 41.006

1
358 S.W.3d 403 (Tex. App—Dallas 2011, no pet.) (attached).

Haynes and Boone, LLP 2323 Victory Avenue Suite 700 Dallas,
| |
TX 75219
T: 214.651.5000 haynesboone.com
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HAYNES BOONE;
Judge Martin Hoffman
October 22, 2021
Page 2

“ ”
requires speciﬁc” awards as to each defendant. And just as the failure to properly submit “eac
person under § 33.003 is reversible error, so too is the failure to speciﬁcally submit defendants
under § 41.006.

In fact, the joint submission of defendants in violation of § 41.006 is even more problematic
than the submission error in Jcmga. There, the error was the refusal to submit “each” settling
person according to § 33.003. Id. at 413. But for that submission error (which required reversal
because it was objected to), the verdict would have allowed the Court to craft a judgment. Maya’s
verdict, on the other hand, itselfviolates § 41.006—which “require[s] separate jury ﬁndings as to
each defendant”2—and thereby leaves the Court with “no basis upon which to render a proper
judgment.” See JQC Drilling C0. v. Salaz'z, 866 S.W.2d 632, 640 (Tex. App.—San Antonio 1993,
no writ).

That means, as other courts have held, that no charge objection was required to raise the
impropriety of the joint-and—several submission. Id. at 640-41 (emphasis added); Lovelace v. Sabine
Consol, Inc, 733 S.W.2d 648, 655 (Tex. App—Houston [14th Dist.] 1987, writ denied).
3

Section 41.006 prohibits a judgment on the verdict here as a matter of law: “an award of exemplary
damages must be speciﬁc as to a defendant, and each defendant is liable only for the amount of the
award made against that defendant.” TEX. CIV. PRAC. 8c REM. CODE § 41.006 (emphasis added). It
leaves the Court no room to “award” non-speciﬁc exemplary damages. See Compute/e Compact. 8
Oﬁ‘ice Supplies, Inc. v. Walton, 156 S.W.3d 217, 224 (Tex. App—Dallas 2005, no pet.) (noting that
§ 41.006 is “unambiguous” and precludes joint-and-several awards even for defendants who are
“closely related”).

It makes sense that a defendant can raise this issue at the judgment-formation stage. After
all, it is the plaintiff’s duty to obtain proper damages ﬁndings:

2
Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 878 (Tex. 2018) (citation
omitted).
3
See also Palla v. Bio-One, Inc., 424 S.W.3d 722, 725 (Tex. App—Dallas 2014, no pet.) (“A trial
court should disregard a jury ﬁnding if the jury question to which the ﬁnding responds is legally defective;
the answer to a legally defective question is immaterial to the judgment.” (quoting Fazio v. Cypress/GR
Houston I, L.P., 403 S.W.3d 390, 394 (Tex. App—Houston [lst Dist.] 2013, pet. denied) (en banc)); Raﬁ
v. Univ. of St. Thomas, 582 S.W.3d 707, 715 (Tex. App—Houston [lst Dist.] 2019, pet. denied) (holding
jury ﬁnding was immaterial when judgment on question was “barred as a matter of law”).
HAYNES BOONE;
Judge Martin Hoffman
October 22, 2021
Page 3

As for the contention of Sabine that Lovelace waived complaint by failing to object
at trial to the submission of the form of the damages issues, Sabine mistakes where
the dug! to submit separate jury ﬁndings on damages lies. An appellant cannot be held
accountable for the failure of an appellee to secure separate jury ﬁndings upon
which an accurate judgment could be based.

See Lovelace, 733 S.W.2d at 655 (emphasis added).

Here, too, § 41.006 “demands that a plaintiﬂ' secure a speciﬁc assessment of exemplary
damages against each defendant.” Horizon Health, 520 S.W.3d at 882. It was not up to Defendants
to make sure Maya secured ﬁndings upon which the Court could enter a proper judgment in its
favor. Jfo’C Drilling, 866 S.W.2d at 641. “The failure to object at trial [did] not waive this error.”
Id. (emphasis added).

Accordingly, because the Court cannot, under § 41.006, enter a “proper judgment” based
on Maya’s exemplary-damages question, Defendants request that the Court enter judgment that
Maya take nothing on its claim for exemplary damages. See id. at 640-41; Horizon Health, 520
S.W.3d at 882-83.

Thank you for your consideration of this letter.

Respectfully submitted,

Anne Johnson
Direct Phone Number: (214) 651-5376
Anne.]ohnson@haynesboone.com
Janga v. Colombrito, 358 S.W.3d 403 (2011)

358 S.W.3d 403
Court of Appeals of Texas, West Headnotes (12)
Dallas.

Sireesha JANGA, M.D. and [1] Trial 0- Authority to instruct jury in
general
Richard Torres, M.D., Appellants,
Trial 0- Discretion of court
v.
A trial court has wide discretion
Thomas A. COLOMBRITO and in submitting instructions and jury
Phorsha Colombrito, Appellees. questions.

2 Cases that cite this headnote
No. 05—10—00408—CV.
|

Dec. 12, 2011. [2] Trial G= Questions to Be Submitted
The court may reﬁise to submit a properly-
Synopsis
requested question to the jury only if there
Background: Patient brought medical negligence
is no evidence in the record to warrant
action against physicians and hospital, alleging
its submission. Vernon's Ann.Texas Rules
negligence in treatment resulting in permanent,
Civ.Proc., Rule 278.
incomplete paraplegia. Prior to trial, patient entered
into settlement agreement with hospital regarding, in
3 Cases that cite this headnote
part, hospital's Vicarious liability for any negligence of
nurses. After jury trial, the 68th Judicial District Court,
Dallas County, Martin Hoffman, J ., entered judgment [3] Health 0- Instructions
in favor of patient. Physicians appealed. Issue of which actors were to be submitted
to jury as possible proximate cause of
patient's injuries was governed by chapter
of civil practice and remedies code
Holdings: The Court of Appeals, FitzGerald, J ., held
that:
governing percentages of responsibility,
in medical malpractice action against
physicians in which physicians alleged
[l] nurses were
“settling persons” and thus
nurses' negligence was proximate cause
were required to be included in jury instruction
of injury; liability and percentage-of-
for determination of percentage of responsibility
attributable to each actor;
responsibility questions were necessarily
linked. V.T.C.A., Civil Practice &
Remedies Code § 33.003.
[2] evidence was sufﬁcient to support submission of
names of nurses for jury's determination of liability and 1 Cases that cite this headnote
percentages of responsibility for patient's injuries;

[4] Health 0- Instructions
[3] error in trial court's failure to submit names
of nurses as settling persons was not mitigated Nurses were “settling persons” and
or remedied by trial court's proposed alternative thus were required to be included in
submission; and jury instruction for determination of
percentage of responsibility attributable to
[4] such error was reversible error. each actor at issue in patient's medical
malpractice action, in case in which
patient executed settlement agreement
Reversed and remanded.

WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Janga v. Colombrito, 358 S.W.3d 403 (2011)

with hospital, despite argument that
nurses did not pay either patient or [9] Health 0- Instructions

hospital in return for release from liability; Evidence was sufﬁcient to support
hospital and nurses comprised a single submission of names of nurses for jury's
legal entity in regard to patient's claim determination of liability and percentages
for any of nurses' wrongful acts which of responsibility for patient's injuries, for
caused injury to patient, and that claim purposes of patient's medical malpractice
was settled by the settlement agreement. action against physicians arising out 0f
V.T.C.A., Civil Practice & Remedies complications of lumbar puncture, in case
Code § 33.003. in which patient settled with hospital
prior to trial, where expert witness for
patient testiﬁed that nurses were negligent
in several ways, including the failure
[5] Indemnity 0- Contractual Indemnity
to stop administration of agents known
Insurance 0- Insurer‘s Duty to
to cause bleeding complications in a
Indemnify in General
lumbar puncture. V.T.C.A., Civil Practice
The duty to indemnify may be based on
& Remedies Code § 33.003(b).
contract, as in the case of an insurer or
of one who voluntarily agrees to “front”
settlement money for another.
[10] Appeal and Error 0- Failure or refusal
to submit issues

Error in trial court's failure to submit
[6] Indemnity 0- Secondary liability
nurses as settling persons, for purposes of
The duty to indemnify may arise by determination of liability and percentages
operation of law, based on principles of of responsibility in medical malpractice
vicarious liability.
action, was not mitigated or remedied
by trial court's proposed alternative
submission, which would have added
[7] Torts 0- Vicarious liability nurses under blank space for percentage
Vicarious liability is liability placed upon of liability of hospital but which would
one party for the conduct of another, based not have given nurses their own blanks,

solely upon the relationship between the in case in which patient settled with
two. hospital prior to trial regarding any
wrongful acts of nurses and proceeded to
trial on claims against physicians; statute

[3] Labor and Employment 0- Nature of expressly required submission of each
liability in general defendant, and there was no reason to
treat settling employees differently than
In an employment relationship,
defendants for this purpose. V.T.C.A.,
the vicarious liability operating is
Civil Practice & Remedies Code §
“respondeat superior”; under that
33.003(a)(2, 3).
doctrine, an employer is exposed to
liability not because of any negligence
on its own part, but because of the
employee's negligence in the scope of the
[11] Appeal and Error 0- Failure or refusal
to submit issues
employment.
Appellate court will reverse if the trial
2 Cases that cite this headnote court denies, in a multi-party submission,
a proper submission of a settling person's

proportionate responsibility, and the error

WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Janga v. Colombrito, 358 S.W.3d 403 (2011)

probably caused the rendition of an treatment and awarded appellees more than $22
improper judgment. million. After applying settlement credits and statutory
caps, the trial court's January 4, 2010 ﬁnal judgment
1 Cases that cite this headnote awarded the Colombritos $504,291.94 from Torres
and $10,125,725, jointly and severally, ﬁom Janga.
In addition, the judgment awarded $250,000 in non-
[12] Appeal and Error 0- Failure or refusal
to submit issues economic damages from J anga and Torres. Appellants
raise three issues on appeal, alleging charge error and
Error in trial court's failure to include
factual insufﬁciency of the evidence supporting the
names of nurses in instructions for
jury's ﬁnding of liability and award of damages for loss
determining liability and percentages
of earning capacity. We conclude the trial court's jury
of responsibility was reversible error,
in patient's medical malpractice action charge contained reversible error, and we remand this
cause for new trial.
against physicians following settlement
with hospital for any wrongful acts of
nurses, where witnesses at trial offered
ample evidence of negligence on part of Background
nurses, and jury instructions as submitted
did not permit jury to assign proportionate Thomas Colombrito arrived at the emergency room
at Dallas Regional Medical Center (the “Hospital”)
responsibility to nurses as settling parties.
V.T.C.A., Civil Practice & Remedies early on the morning of Friday, January 11, 2008.
Code § 33.003. Colombrito complained, among other symptoms, of a
headache with severe pain and a stiff neck. Dr. Sireesha
l Cases that cite this headnote Janga became Colombrito's treating physician, and
she ordered a number of tests in an effort to identify
Colombrito's problem. As part of her plan of treatment,
J anga prescribed aspirin and *406 Lovenoxawhich

Attorneys and Law Firms is a blood thinner—to be administered to Colombrito
twice daily. The ﬁrst dose of Lovenox was given
*405 Jadd F. Masso, P. Michael Jung, Joseph A. to him at noon on Friday; the next was given
Turano, Strassburger & Price, LLP, Diana L. Faust, at midnight. Janga also recommended Colombrito
R. Brent Cooper, Michelle E. Robberson, Cooper & undergo a lumbar puncture because she was concerned
Scully, P.C., Dallas, TX, Susan Cassidy Cooley, Schell, about the possibility of meningitis. The procedure
Mitchel & Cooley LLP, Addison, TX, for Appellants. was performed by Dr. Lutﬁ Basatneh, a neurologist,
on Saturday aﬁernoon. However, Colombrito was
Jack E. McGehee, Hsien Chun Chang, Stephen
given a dose of Lovenox at noon on Saturday,
Anthony Barnes, Benjamin T. Landgraf, McGehee before the procedure; he was given another dose at
Chang Barnes, Houston, TX, for Appellees.
midnight, after the procedure. There is no dispute
that Lovenox is contraindicated before and after a
Before Justices FITZGERALD, FRANCIS, and
LANG—MIERS. lumbar puncture because it can cause bleeding around
the spine. On Sunday Colombrito began to develop
symptoms of a hematoma, including back pain, loss
of feeling in his legs, and an inability to urinate.
OPINION
The hematoma could not be conﬁrmed without an

Opinion By Justice FITZGERALD. MRI, and Basatneh ordered an MRI “STAT” at
6:10 on Sunday evening, but the Hospital did not
Appellees Thomas and Phorsha Colombrito sued perform the MRI on Sunday. Indeed, the MRI was not
appellants, Doctors Sireesha Janga and Richard Torres, performed until close to 3:00 on Monday afternoon;
alleging negligence in their treatment of Thomas. it revealed a spinal hematoma. Basatneh then ordered
A jury found appellants were negligent in their Colombrito transferred to a hospital where appropriate

WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Janga v. Colombrito, 358 S.W.3d 403 (2011)

neurosurgery could be performed. The neurosurgery
failed to restore Colombrito's nerve function, and 12. Failure to adopt, formulate, or enforce rules,

he continues to suffer from permanent, incomplete protocols or policies concerning the treatment of

paraplegia, with chronic pain and depression. These patients in Thomas Colombrito's condition;
facts are not disputed in the record before us. However,
13. Failure to ensure its employees; including
the parties vigorously disputed which of the health care
nurses; comply with Rule 217.11, 217.12, the
providers were responsible for Colombrito's injuries. Standards of Nursing Practice, and other Rules of
[sic] promulgated by the Nurse Practice Act and
The Colombritos sued both Janga and Basatneh.
the Texas Board of Nursing; and
They sued Torres, who took over Colombrito's care
ﬁ‘om Janga at about 4:00 on Sunday afternoon while *407 l4. Failure to warn or inform its patients,
J anga cared for her own sick child. Janga again took physicians, or the general public of its inability to
charge of Colombrito's care on Monday morning. The provide MRIs and/or other appropriate diagnostic
Colombritos pleaded negligence claims against all measures during the weekends.
three of these physicians. These allegations were as to the Hospital's own
conduct; they represent claims of the Hospital's direct
The Colombritos also sued the Hospital. In their Fourth negligence.
Amended Petition, they pleaded fourteen separate
allegations of negligence by the Hospital: But the Colombritos also pleaded the Hospital was
indirectly—or vicariously—liable for the negligence
l. Failure to diagnose, treat, or warn;
of Audrey Newton and Joan Smalling, the nurses
2. Failure to timely report the patient‘s condition t0 assigned to care for Thomas Colombrito at the
the doctors; Hospital (together, the “Nurses”).1 Through a series
of amended petitions, the Colombritos pleaded this
3. Failure to recognize the patient's condition and indirect negligence claim under the speciﬁc headings
injury; of Vicarious Liability and Principal/Agent Liability.
And, after listing the fourteen above allegations against
4. Failure to ensure that appropriate diagnostic
the Hospital, the Colombritos pleaded:
measures (i.e. MRI) were performed in a timely
manner as ordered;
The Hospital's pleading speciﬁcally disclaimed
5. Failure to follow up with the patient in a timely any vicarious liability theory involving the
manner; Hospital and Janga or Torres. And no other
employee of the Hospital is at issue in this
6. Failure to discontinue Lovenox; appeal. Accordingly, we limit our discussion to
the vicarious liability of the Hospital for the
7. Failure to notify the doctor that Lovenox was not Nurses.
discontinued on a patient;

Furthermore, in addition to above, Dallas Regional
8. Failure to stop a lumbar puncture on a patient
Medical Center is also vicariously liable for the
under the effects and inﬂuence of Lovenox;
negligence of its employees and nurses under
9. Failure to know the rationale for and effects of the respondeat superior.
medications administered; Thus, the pleadings speciﬁcally alleged vicarious
liability for the Hospital for any negligent conduct
10. Failure to ensure the doctor's orders were of its employees.
followed; The Colombritos next pleaded ten speciﬁc allegations
of negligence against Smalling:
11. Failure to arrange a timely transfer of the
patient when the hospital was unable to properly 1. Failure to timely report the patient‘s condition to
diagnose and treat the patient; the doctor;

WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Janga v. Colombrito, 358 S.W.3d 403 (2011)

Torres's requests, the Nurses' names were not
2. Failure to recognize the patient's condition and submitted to the jury for ﬁndings. The jury awarded
injury; more than $22 million in actual damages to the
Colombritos. The trial court applied percentages of
3. Failure to ensure that appropriate diagnostic
measures (i.e. MRI) were performed in a timely
responsibility and damage caps and ultimately signed a

manner as ordered;
judgment awarding the Colombritos $504,291.94 from
Torres and $10,125,725, jointly and severally from
4. Failure to follow up with the patient in a timely Janga. In addition, the judgment awarded $250,000 in
manner; non-economic damages from Janga and Torres. Janga
and Torres appeal.2
5. Failure to discontinue Lovenox;

6. Failure to notify the doctor that Lovenox was not In this appeal, Janga has ﬁled a brief that fully

discontinued on a patient; addresses the doctors' issues. Torres's brief adopts
Janga's brief. We will address the arguments in
7. Failure to stop a lumbar puncture on a patient Janga's brief as Appellants' arguments.
under the effects and inﬂuence of Lovenox;

8. Failure to know the rational[e] for and effects of Submission of Nurse Smalling and Nurse Newton
the medications administered;
[1] [2] Appellants' ﬁrst issue contends the trial court
9. Failure to ensure the doctor's orders were erroneously refused to submit the Nurses individually
followed; and in the court's charge to the jury. A trial court has
wide discretion in submitting instructions and jury
10. Failure to comply with Rule 217.11, 217.12, the
questions. European Crossroads'Shopping Ctr, Ltd. v.
Standards of Nursing Practice, and other Rules of
Criswell, 910 S.W.2d 45, 54 (Tex.App.-Dallas 1995,
[sic] promulgated by the Nurse Practice Act and writ denied). We review the trial court's submission of
the Texas Board of Nursing.
jury questions for an abuse of discretion. MR]: Inc.
The Colombritos pleaded the same ten allegations v. Vounckx, 299 S.W.3d 500, 505 (Tex.App.-Dallas

against Newton and added one more: 2009, no pet). The trial court must submit a question
that is raised by the written pleadings and evidence.
Failure to supervise the primary nurse in charge of
Tex.R. Civ. P. 278; ParkN. Serv. Ctn, LP. v. Applied
the patient.
Circuit Tech., 1nc., 338 S.W.3d 719, 721 (Tex.App.—
Dallas 2011, no pet). Indeed, the court may refuse to
The Colombritos settled with Basatneh and the
submit a properly requested question only if there is no
Hospital before trial. The parties disagree concerning
evidence in the record to warrant its submission. Park
whether there was a settlement with the Nurses, and
N. Serv. Ctr., 338 S.W.3d at 721.
that issue is discussed in detail below. Regardless, the
Nurses were non-suited after mediation and before
In this case, appellants contend the trial court
the beginning of trial. And the Colombritos' Fifth
should have submitted the Nurses individually within
Amended Petition, which was their live pleading at
both the charge's ﬁrst question (which identiﬁed
trial, removed all claims—however styled—against
parties whose negligence had proximately caused the
the Hospital and the Nurses.
injury of Thomas Colombrito) and second question
(which determined the negligent parties' percentage of
Thus, the Colombritos proceeded at trial against
responsibility). Appellants made timely objections to
only Janga and Torres. The jury found both doctors
the court's refusal to submit the Nurses individually
were negligent and found Janga 51% responsible
in both questions; appellants also tendered a proposed
for Colombrito's *408 injuries and Torres 4%
charge that included separate lines for the two Nurses
responsible. The jury also found the Hospital
under both questions.
and Basatneh were negligent and assigned them
percentages of responsibility. Despite Janga's and

WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Janga v. Colombrito, 358 S.W.3d 403 (2011)

The Trial Court's Charge
3
These deﬁnitions were requested by Janga and
The trial court's charge provided the jury with four Torres. We ﬁnd no objection to theminthe record
different sets of deﬁnitions of the terms “negligence,” before us.
“ordinary care,” and “proximate cause.” Each set of The trial court's ﬁrst question asked:
three deﬁnitions was tailored t0 a particular person or
entity. Thus, the deﬁnitions for Drs. Janga and Torres l. Did the negligence, if any, of those named
instructed the jury concerning the meaning of each below proximately cause the injury of Thomas
0f those terms for a physician. The remaining sets Colombrito?
instructed the jury concerning the terms' meanings for
a hospital (for the Hospital), for a nurse (for the two Answer “Yes” or “N0” for eaCh 0f the fouowmg:

Nurses), and for a neurologist (for Dr. Basatneh).3
a. Sireesha Janga, M.D.
b. Richard Torres, M.D.

c. Lutﬁ Basatneh, M.D.

d. Dallas Regional Medical Center

to Thomas Colombrito. The percentages you ﬁnd
*409 The jury answered “Yes” on each of the must total 100 percent. The percentages must
four lines. The trial court's second question, with its be expressed in Whole numbers. The negligence

accompanying instructions, then asked; attributable to any one named below is not
necessarily measured by the number of acts or
” to
Ifyou have answered “Yes Question I for more omissions found.
than one of those named below, then answer the
following question. Otherwise, do not answer the 2-For eaCh 0f those named below that you found
following question. caused or contributed to cause injury to Thomas
Colombrito, ﬁnd the percentage of responsibility
Assign percentages of responsibility only to those atm'butable to each.
you found caused or contributed t0 cause injury
Sireesha Janga, M.D. %

Richard Torres, M.D. %

Lutﬁ Basatneh, M.D. %

Dallas Regional Medical Center %

TOTAL %
100

The jury assigned the submitted parties the following
percentages of responsibility:
Sireesha Janga, M.D. 51 %

Richard Torres, M.D. 4 %

Lutﬁ Basatneh, M.D. ‘33 %

Dallas Regional Medical Center 12 %

and percentage-of-responsibility questions ifshe falls
[3] It is apparent from the outset that these two
within one of the categories listed in section 33 .003(a)
questions are inextricably linked. The questions list
and if sufﬁcient evidence supports her submission. See
the same four actors. And, importantly, Question 2
id.
instructs the jury (a) to answer the question only
if it has answered “Yes” for more than one of the
four names listed in Question l, and (b) to assign
percentages of responsibility only to those it has found *410 The Nurses as Settling Persons
in Question 1 had caused or contributed to cause injury
to Colombrito. Because the liability and percentage- [4] Appellants contend the Nurses are settling
of—responsibility questions are necessarily linked, the persons within the meaning of Chapter 33.4 A settling
issue of which actors are to be submitted is governed person is “a person who has, at any time, paid or
in both instances by the provisions of Chapter 33 of promised to pay money or anything of monetary value
the Texas Civil Practice and Remedies Code governing to a claimant in consideration of potential liability with
percentages of responsibility. respect to the personal injury for which recovery of
damages is sought.” Id. § 33.0ll(5). It is undisputed
that a conﬁdential Rule and Settlement Agreement
11

(the “Agreement”) was reached and signed during the
Chapter 33
parties' September 2, 2009 mediation of this cause. The
Chapter 33 contains the required procedure for Agreement settled all claims among the parties, with
submission in a multi-party negligence case such as “[n]o claims excepted.” It called for the Hospital to
this one: pay the agreed amount and for the plaintiffs to release
all employees of the Hospital who were involved
(a) The trier of fact, as to each cause of in any way in the care and treatment of Thomas
action asserted, shall determine the percentage of Colombrito or the operations of the Hospital that were
responsibility, stated in whole numbers, for the at issue in the case. The parties to the Agreement were
following persons with respect to each person's identiﬁed therein as Plaintiffs Thomas Colombrito and
causing or contributing to cause in any way the harm Phorsha Colombrito and Defendants Dallas Regional
for which recovery of damages is sought, whether Medical Center, Joan Smalling, and Audrey Newton,
by negligent act or omission and counsel for both nurses signed on their behalf. The
Agreement was later formally embodied in the Mutual
(1) each claimant; General Release. In that document, the Hospital and
all of its employees were released from any further
(2) each defendant;
liability to the Colombritos. The Nurses were non-
(3) each settling person; and suited on September 9, 2009, and the Colombritos
ﬁled their Fifth Amended Petition, dropping all claims
(4) each responsible third party who has been
against the Nurses and the Hospitals Before opening
designated under Section 33.004.
statements at trial, counsel for plaintiffs stated on
the record, “The hospital money is to release all the
(b) This section does not allow a submission to
the jury of a question regarding conduct by any hospital employees from top to bottom to include [the]
two nurses that were named and have since been non-
person without sufﬁcient evidence to support the
submission. suited.”
Tex. Civ. Prac. & Rem.Code Ann. § 33.003 (West
2008). This section—like the standard jury question The Nurses made no claim of their own in
submitted by the trial court in our case—ties a this lawsuit, so they were not claimants. They
determination of percentage of responsibility to the had been non-suited before trial, so they were
no longer defendants. And no other party had
negligent causing of the claimant's injury. Thus,
a person must be submitted in both the liability designated them as responsible third parties.

Thus, the only possible basis for submitting them
was as settling persons. Nothing in Section 33.011(5) requires that a
defendant personally and directly pay or promise
The Hospital was formally dismissed ﬁom the to pay money or anything of value to the claimant.
lawsuit with prejudice after the trial.
Likewise, this deﬁnition does not prohibit the
The Colombritos contend the Nurses are not settling payment of money by one defendant or party on
persons. They argue the Nurses have not met the behalf of another.
statutory deﬁnition because they have not “paid or Id. at 173. And the court concluded that “the payment
promised to pay money or anything of monetary value of money by [Southwestern Bell] on its own behalf
to a claimant in consideration of potential liability.” See and on behalf of General Cable in consideration of the
id. Certainly the Nurses were potentially liable to the potential liability of both defendants is a payment of
Colombritos before the settlement, and they were no money by General Cable.” Id. We agree with the El
longer potentially liable afterward. The Colombritos Paso court.
acknowledge the Nurses are, thus, released parties. But
they argue the Nurses are not settling persons because [5] [6] [7] [8] From a similar perspective, we
they did not pay either the Colombritos or the Hospital know that when insurance is involved, a settlement
in return for that release from potential liability. can be achieved by one person's paying for another's
release. An insurer and its insured have a contractual
The Colombritos identify no authority concluding relationship that requires the insurer to pay on the
one party cannot pay settlement funds on behalf of insured's behalf under the circumstances called for
another. And at least one Texas court has decided in their policy. Whether in the insurance arena or
this issue to the contrary. In Southwestern Bell otherwise, one party will pay for another's liability
Telephone C0. v. General CableIndustries, 966 S.W.2d when their relationship calls for indemnity. See
166 (Tex.App.-El Paso 1998, pet. denied), the court generally Black's Law Dictionary 781 (8th ed. 1999)
addressed a dispute concerning contribution rights (indemnity is a “duty to make good any loss,
between two defendants. The defendants and the damage, or liability incurred by another”). The duty to
plaintiff had entered into a settlement agreement indemnify may be based on contract, as in the case of
whereby Southwestern Bell would pay the entirety of an insurer or of one who voluntarily agrees to “front”
the negotiated settlement amount to the plaintiff, the settlement money for another. See Southwestern Bell,
plaintiff would release bo

Case Info

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HOFFMAN, MARTIN Track Judge’s New Case

Case No.

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Document Filed Date

October 22, 2021

Case Filing Date

May 02, 2019

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Parties

ACKELS, KATIE M Attorney for the Defendant
BOWMAN, W.IRA Attorney for the Plaintiff
JOHNSON, ANNE M Attorney for the Defendant
KNIGHT, CHRISTOPHER Attorney for the Defendant
LONG, EKATERINA G Attorney for the Plaintiff
LY, BRIAN Defendant
LY, LENG CHIV Defendant
LY, SAO MINH Defendant
MAYA WALNUT LLC Plaintiff
O'CONNOR, MARY L Attorney for the Defendant
WALNUT CREEK CENTER, INC. Defendant
Grace Lee Attorneys for Plaintiffs
William Bowman Attorney
Laurel Baker Attorneys for Plaintiffs
Samantha Baynes Attorneys for Plaintiffs
Alicia Pitts Attorneys for Defendants
Monica Niewiarowski Attorneys for Plaintiffs

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Letter,Correspondence: MAYA WALNUT LLC vs. BRIAN LY, et al

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