Preview
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
CAUSE NO. C-0973-13-A
JUANA LAGUNA, JOANNA GONZALEZ § IN THE DISTRICT COURT
ACEVEDO, AS ADMINISTRATOR OF THE §
ESTATE OF REGINO GONZALEZ, JR. §
§
v. § 92ND JUDICIAL DISTRICT
§
RAY R. FULP, III, D.O. RAY FULP §
ORTHOPEDICS, P.A., ROBERT C. §
FOUNTILA, D.O., McALLEN HOSPITALS, §
L.P., McALLEN MEDICAL CENTER, SOUTH §
TEXAS HEALTH SYSTEM, MCALLEN §
MEDICAL CENTER, INC. § HIDALGO COUNTY, TEXAS
ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendants, McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL
CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC., and make the
following Original Answer, and in support thereof, would show the Court as follows:
I.
These Defendants generally deny the material allegations of Plaintiffs’ Original Petition
and all Amended Petitions and demands proof thereof as required by the Texas Rules of Civil
Procedure and reserves the right to plead further and in greater particularity as the case
progresses should such be indicated.
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
II.
These Defendants plead the provisions of §§74.301, 74.302 and 74.303 of Chapter 74
of the TEXAS CIVIL PRACTICE REMEDIES CODE, which limits the amount of damages, except for past
and future medical expenses, that may be recovered herein.
III.
Defendants further affirmatively plead the provisions of the TEXAS CIVIL PRACTICE &
REMEDIES CODE, including §§41.007 and 41.008 which limit the amount of exemplary damages
which may be awarded against Defendants.
IV.
For further answer, these Defendants invoke their legal rights to a reduction of any dollar
verdict which may be rendered in this cause by credit for payments made by other persons or
entities or by percentage reductions to which these Defendants would be entitled as a result
of jury findings against other persons or entities. In this connection, these Defendants reserve
the right to submit issues against parties who may be present in the case or absent from the
case at the time the matter is submitted to the jury for fact determinations.
V.
Defendants assert in the unlikely event Plaintiffs recover a judgment in this case,
Defendants are entitled to an offset or credit against such judgment based upon the total
amount of qualifying settlements received by Plaintiffs herein.
-2-
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
VI.
Defendants further assert their rights under the proportionate responsibility provisions
of Chapter 33 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including but not limited to:
(a) the right to receive the appropriate credit, offset, or reduction in judgment
based upon any settlement Defendant's insurers or for any amount of
money collected from any other Defendant (or their insurers) by
settlement, compromise, or agreement, or in payment of any judgment
entered in this case; and
(b) the right to a separate determination by the trier of fact of the percentage
of responsibility for each claimant, each Defendant, each settling person,
and each responsible third party.
VII.
Defendants would assert that the actions or omissions of one or more Co-Defendants
and/or third parties, either acting singularly or in combination, were the proximate cause,
contributing cause, the sole proximate or intervening cause(s) of Plaintiff's alleged injuries, if
any.
VIII.
Defendants hereby plead a cause of action against any and all Defendants who may
settle for the purpose of permitting the settling Defendants’ liability to be submitted to the jury,
in as much as a pleading is required.
IX.
Defendants assert that in addition to any other limitation under law, recovery of medical
or healthcare expenses is limited to the amount actually paid or incurred by or on behalf of the
claimant pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE §41.0105.
-3-
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
X.
Defendants assert that prejudgment interest may not be assessed or recovered on an
award of future damages, if any. V.T.C.A., Finance Code §304.1045.
XI.
Defendants assert their rights under §18.091 of the TEXAS CIVIL PRACTICE & REMEDIES CODE
pertaining to the required proof of alleged loss of earnings, loss of earnings capacity, or loss of
contributions of a pecuniary value, as well as the jury instructions regarding the same.
XII.
Defendants assert in the unlikely event Plaintiffs recover a judgment, Defendants
request the Court to order medical, healthcare, or custodial services, and future damages, if
any, be paid in periodic payments rather than lump sum as provided by TEXAS CIVIL PRACTICE &
REMEDIES CODE §74.503(a) and §§74.503(b).
XIII.
Should Plaintiffs make a claim for punitive damages at any time, these Defendants
further invokes their rights under the Due Process Clause and Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution and affirmatively pleads that the
Plaintiffs’ pleading for punitive and/or exemplary damages is violative of the Fourteenth
Amendment inasmuch as punitive and/or exemplary damages can be assessed:
1. in an amount left to the discretion of the jury and judge;
2. in assessing such sums, the decision of the jury need only be based
on a vote of ten jurors and does not require a unanimous verdict;
-4-
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
3. in assessing such penalty or exemplary awards, plaintiff need only
prove the theory of gross negligence on a “preponderance of the
evidence” standard and not on a “beyond a reasonable doubt”
standard, as should be required in assessing a punishment award;
4. further, the defendants who are subject to the award do not have
the right to refuse to testify against themselves, but must, in fact,
take the stand and/or give deposition testimony or subject
themselves to the consequences of a defaultjudgment;
5. the assessment of such a punishment and/or exemplary award is
not based upon a clearly defined statutory enactment setting forth
a specific mens rea requirement and/or other prerequisites of a
criminal fine and, in effect allows the assessment of such awards
even though there are not specific standards, limits or other
statutory requirements set forth which define the mens rea and
scope and limit of such awards. Therefore, the awards are unduly
vague and do not meet the requirements of due process;
6. in essence, this defendant issubjected to allthe hazards and risks
0f what amounts to a fine and, in fact, such awards often exceed
normal criminal fines; but this defendant receives none of the basic
rights afforded a criminal defendant when being subjected to
possible criminal penalties; and
7. the assessment of punitive and/or exemplary damages differs from
defendant to defendant and treats similar defendants in dissimilar
ways.
Further, if such be necessary, these Defendants further affirmatively plead that the
assessment and award of punitive and/or exemplary damages is violative of the Eighth
Amendment of the United States Constitution as it is applied to the States through the
Fourteenth Amendment ofthe United States Constitution inthatsuch awards potentially consti—
tute an excessive fine imposed without the protections of fundamental due process.
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
XIV.
Defendants affirmatively plead that Plaintiffs’ case and alleged causes of action are
barred by the statute of limitations.
XV.
Accordingly, these Defendants invoke their rights under the Eighth and Fourteenth
Amendments of the United States Constitution and respectfully requests that this Court disallow
the award of punitive and/or exemplary damages inasmuch as an award in this case would be
violative of the Defendants’ United States constitutional rights.
XVI.
Defendants would further invoke their rights under the Fifth Amendment to the United
States Constitution wherein it reads in part, “No person shall be . . . deprived of . . . property,
without due process of law; . . .” for the same reasons enumerated above.
WHEREFORE, PREMISES CONSIDERED, Defendants, McALLEN HOSPITALS, L.P. D/B/A
McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER,
INC., pray that Plaintiffs take nothing by reason of this suit, that Defendants recover their costs,
and for such other and further relief, both at law and in equity, to which they may show
themselves justly entitled.
-6-
Electronically Filed
2/4/2019 8:30 AM
Hidalgo County District Clerks
Reviewed By: Jonathan Coronado
Respectfully submitted,
GONZALEZ CASTILLO, LLP
By: /s/Edward J. Castillo
Steven M. Gonzalez
SBN: 08131900
Edward J. Castillo
SBN: 24040658
Eduardo Moya
SBN: 24105674
1317 E. Quebec Avenue
McAllen,Texas 78503
(956) 618-0115
FAX: (956)618—0445
Email: Iaw@vallefiirm.com
ATTORNEYS FOR DEFENDANTS,
MCALLEN HOSPITALS, L.P. D/B/A MCALLEN MEDICAL
CENTER, SOUTH TEXAS HEALTH SYSTEM, and MCALLEN
MEDICAL CENTER, INC.
CERTIFICATE 0F SERVICE
| hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to attorney for Plaintiffs via certified mail, return receipt requested, and to all
other counsel of record via regular mail, on this 4‘“ day of February, 2019.
/s/Edward J. Castillo
Edward J. Castillo
F:\data\WPDOCS\G\Gonzalez, M MC
R. v. 2 1.165\origina| answer.lc.wpd
Preview
Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado CAUSE NO. C-0973-13-A JUANA LAGUNA, JOANNA GONZALEZ § IN THE DISTRICT COURT ACEVEDO, AS ADMINISTRATOR OF THE § ESTATE OF REGINO GONZALEZ, JR. § § v. § 92ND JUDICIAL DISTRICT § RAY R. FULP, III, D.O. RAY FULP § ORTHOPEDICS, P.A., ROBERT C. § FOUNTILA, D.O., McALLEN HOSPITALS, § L.P., McALLEN MEDICAL CENTER, SOUTH § TEXAS HEALTH SYSTEM, MCALLEN § MEDICAL CENTER, INC. § HIDALGO COUNTY, TEXAS ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendants, McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC., and make the following Original Answer, and in support thereof, would show the Court as follows: I. These Defendants generally deny the material allegations of Plaintiffs’ Original Petition and all Amended Petitions and demands proof thereof as required by the Texas Rules of Civil Procedure and reserves the right to plead further and in greater particularity as the case progresses should such be indicated. Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado II. These Defendants plead the provisions of §§74.301, 74.302 and 74.303 of Chapter 74 of the TEXAS CIVIL PRACTICE REMEDIES CODE, which limits the amount of damages, except for past and future medical expenses, that may be recovered herein. III. Defendants further affirmatively plead the provisions of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including §§41.007 and 41.008 which limit the amount of exemplary damages which may be awarded against Defendants. IV. For further answer, these Defendants invoke their legal rights to a reduction of any dollar verdict which may be rendered in this cause by credit for payments made by other persons or entities or by percentage reductions to which these Defendants would be entitled as a result of jury findings against other persons or entities. In this connection, these Defendants reserve the right to submit issues against parties who may be present in the case or absent from the case at the time the matter is submitted to the jury for fact determinations. V. Defendants assert in the unlikely event Plaintiffs recover a judgment in this case, Defendants are entitled to an offset or credit against such judgment based upon the total amount of qualifying settlements received by Plaintiffs herein. -2- Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado VI. Defendants further assert their rights under the proportionate responsibility provisions of Chapter 33 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including but not limited to: (a) the right to receive the appropriate credit, offset, or reduction in judgment based upon any settlement Defendant's insurers or for any amount of money collected from any other Defendant (or their insurers) by settlement, compromise, or agreement, or in payment of any judgment entered in this case; and (b) the right to a separate determination by the trier of fact of the percentage of responsibility for each claimant, each Defendant, each settling person, and each responsible third party. VII. Defendants would assert that the actions or omissions of one or more Co-Defendants and/or third parties, either acting singularly or in combination, were the proximate cause, contributing cause, the sole proximate or intervening cause(s) of Plaintiff's alleged injuries, if any. VIII. Defendants hereby plead a cause of action against any and all Defendants who may settle for the purpose of permitting the settling Defendants’ liability to be submitted to the jury, in as much as a pleading is required. IX. Defendants assert that in addition to any other limitation under law, recovery of medical or healthcare expenses is limited to the amount actually paid or incurred by or on behalf of the claimant pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE §41.0105. -3- Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado X. Defendants assert that prejudgment interest may not be assessed or recovered on an award of future damages, if any. V.T.C.A., Finance Code §304.1045. XI. Defendants assert their rights under §18.091 of the TEXAS CIVIL PRACTICE & REMEDIES CODE pertaining to the required proof of alleged loss of earnings, loss of earnings capacity, or loss of contributions of a pecuniary value, as well as the jury instructions regarding the same. XII. Defendants assert in the unlikely event Plaintiffs recover a judgment, Defendants request the Court to order medical, healthcare, or custodial services, and future damages, if any, be paid in periodic payments rather than lump sum as provided by TEXAS CIVIL PRACTICE & REMEDIES CODE §74.503(a) and §§74.503(b). XIII. Should Plaintiffs make a claim for punitive damages at any time, these Defendants further invokes their rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and affirmatively pleads that the Plaintiffs’ pleading for punitive and/or exemplary damages is violative of the Fourteenth Amendment inasmuch as punitive and/or exemplary damages can be assessed: 1. in an amount left to the discretion of the jury and judge; 2. in assessing such sums, the decision of the jury need only be based on a vote of ten jurors and does not require a unanimous verdict; -4- Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado 3. in assessing such penalty or exemplary awards, plaintiff need only prove the theory of gross negligence on a “preponderance of the evidence” standard and not on a “beyond a reasonable doubt” standard, as should be required in assessing a punishment award; 4. further, the defendants who are subject to the award do not have the right to refuse to testify against themselves, but must, in fact, take the stand and/or give deposition testimony or subject themselves to the consequences of a defaultjudgment; 5. the assessment of such a punishment and/or exemplary award is not based upon a clearly defined statutory enactment setting forth a specific mens rea requirement and/or other prerequisites of a criminal fine and, in effect allows the assessment of such awards even though there are not specific standards, limits or other statutory requirements set forth which define the mens rea and scope and limit of such awards. Therefore, the awards are unduly vague and do not meet the requirements of due process; 6. in essence, this defendant issubjected to allthe hazards and risks 0f what amounts to a fine and, in fact, such awards often exceed normal criminal fines; but this defendant receives none of the basic rights afforded a criminal defendant when being subjected to possible criminal penalties; and 7. the assessment of punitive and/or exemplary damages differs from defendant to defendant and treats similar defendants in dissimilar ways. Further, if such be necessary, these Defendants further affirmatively plead that the assessment and award of punitive and/or exemplary damages is violative of the Eighth Amendment of the United States Constitution as it is applied to the States through the Fourteenth Amendment ofthe United States Constitution inthatsuch awards potentially consti— tute an excessive fine imposed without the protections of fundamental due process. Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado XIV. Defendants affirmatively plead that Plaintiffs’ case and alleged causes of action are barred by the statute of limitations. XV. Accordingly, these Defendants invoke their rights under the Eighth and Fourteenth Amendments of the United States Constitution and respectfully requests that this Court disallow the award of punitive and/or exemplary damages inasmuch as an award in this case would be violative of the Defendants’ United States constitutional rights. XVI. Defendants would further invoke their rights under the Fifth Amendment to the United States Constitution wherein it reads in part, “No person shall be . . . deprived of . . . property, without due process of law; . . .” for the same reasons enumerated above. WHEREFORE, PREMISES CONSIDERED, Defendants, McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC., pray that Plaintiffs take nothing by reason of this suit, that Defendants recover their costs, and for such other and further relief, both at law and in equity, to which they may show themselves justly entitled. -6- Electronically Filed 2/4/2019 8:30 AM Hidalgo County District Clerks Reviewed By: Jonathan Coronado Respectfully submitted, GONZALEZ CASTILLO, LLP By: /s/Edward J. Castillo Steven M. Gonzalez SBN: 08131900 Edward J. Castillo SBN: 24040658 Eduardo Moya SBN: 24105674 1317 E. Quebec Avenue McAllen,Texas 78503 (956) 618-0115 FAX: (956)618—0445 Email: Iaw@vallefiirm.com ATTORNEYS FOR DEFENDANTS, MCALLEN HOSPITALS, L.P. D/B/A MCALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and MCALLEN MEDICAL CENTER, INC. CERTIFICATE 0F SERVICE | hereby certify that a true and correct copy of the above and foregoing document has been forwarded to attorney for Plaintiffs via certified mail, return receipt requested, and to all other counsel of record via regular mail, on this 4‘“ day of February, 2019. /s/Edward J. Castillo Edward J. Castillo F:\data\WPDOCS\G\Gonzalez, M MC R. v. 2 1.165\origina| answer.lc.wpd