Preview
Electronically Filed
1/13/2020 4:59 PM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
CAUSE NO. C-0973-1 3-A
JUANA LAGUNA, § IN THE DISTRICT COURT OF
JOANNA GONZALEZ ACEVEDO, as §
Administrator of THE ESTATE OF §
REGINO GONZALEZ, JR., §
Plaintiffs §
vs.
é
RAY R. FULP, Ill, D0, § HIDALGO COUNTY, TEXAS
RAY FULP ORTHOPEDICS, PA, §
ROBERT C. FOUNTILA, DO, §
MCALLEN HOSPITALS, LP, §
MCALLEN MEDICAL CENTER, §
SOUTH TEXAS HEALTH SYSTEM §
MCALLEN MEDICAL CENTER, INC., §
Defendants § 92nd JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO MCALLEN HOSPITALS, L.P. DIB/A MCALLEN
MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM AND MCALLEN MEDICAL
CENTER, INC.’S
MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT:
The PLAINTIFFS in the above case file this, their Response to MCALLEN
HOSPITALS, L.P., MCALLEN MEDICAL CENTER; SOUTH TEXAS HEALTH SYSTEM;
and MCALLEN MEDICAL CENTER, |NC.’s (Collectively “MMC”), MOTION FOR
PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY as follows:
|. Motion for Stay
A. Basis for Motion to Stay and Protective Order: On January 2, 2020, MMC filed
a Motion for Protective Order and to Stay A|| Discovery. The premise of MMC’S Motion
was that the Plaintiffs’ Expert Reports were “untimely” because of the expiration of the
Expert Report deadline.
B. First Lawsuit bv Plaintiffs - Non-suited: MMC correctly contended that the
lawsuit against MMC was first filed March 15, 2013. Plaintiffs non-suited MMC on June
24, 2013, before the Expert Report deadline of July 3, 2013. Itis important to note that
Electronically Filed
1/13/2020 4:59 PM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
the Plaintiffs only filed the First Lawsuit against McAllen Hospitals, LP d/b/a McAllen
Medical Center.
C. Second Lawsuit bv Plaintiffs Addinq Two MMC Defendants: On December 14,
2018, the Plaintiffs essentially filed a Second Lawsuit by filing Plaintiffs Second Amended
Petition seeking damages under the Wrongful Death Statute and Survival Statute, as a
result of the death of REGINO GONZALEZ, JR. (“REGINO”) on March 25, 2017. The
Second Lawsuit was based on the negligence and willful and wanton conduct of McAllen
Hospitals, LP and McAllen Medical Center. The Plaintiffs, in the Second Lawsuit, added
two (2) new parties as Defendants, South Texas Health System and McAllen Medical
Center, Inc. Plaintiffs’ Wrongful Death and Survival claims were not filed on March 15,
2013, because REGINO was stillalive at the time, and therefore Chapter 74’s 120-day
Expert Report deadline did not begin to run against any MMC Defendant until MMC filed
their Answer to Plaintiffs’ Second Amended Petition.
D. Deadline for Plaintiffs’ Expert Reports: MMC filed their Answer on February 4,
2019. The Plaintiff’s medical Expert Reports deadline as to MMC was June 4, 2019. The
Plaintiffs filed a total of six (6) Medical Expert Reports, five (5) on May 31, 2019 and one
(1) on June 3, 2019, within 120 days of MMC filing its Answer.
E. MMC’S Claim of No Expert Report is Erroneous: MMC’S claim, “Plaintiffs never
served an expert report on the hospital at any time,” is totally erroneous. JUANA
LAGUNA did timely file her Expert Reports.
F. MMC’s Obiection to Plaintiffs’ Expert Reports was Never Presented to the Court
for Hearing: On July 31, 2019, this Court considered the Motion for Summary Judgment
and the Motion to Dismiss filed by MMC. In MMC’S Motion to Stay All Discovery, on page
2, paragraph 5, MMC’S claim that, “On July 31st, 2019, the hearing on Defendants’
Objections to Plaintiffs’ expert reports was held and the Motion was taken under
2|P/aintiffs’ Response to MMC’s Motion for Protective Order &
Motion to Stay
Electronically Filed
1/13/2020 4:59 PM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
advisement,” is absolutely wrong. MMC’S Objections to the Expert Reports were not
presented or considered by The Court. MMC’s Objections were specifically designated
as “subject to MMC’s Motion for Summary Judgment and Motion to Dismiss”. There was
not one word, not a humming bird’s whisper, presented to the Court concerning whether
or not the Expert Reports contained the required elements of standard of care, breach
of the standard of care, causation and liability. MMC Defendants clearly deferred
presenting their objections until the Court ruled on MMC’S Motion for Summary Judgment
and Motion to Dismiss.
G. Leqal Basis to Stav Discovery: TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(s) is clear that: “Until a claimant has served the expert report and curriculum
vitae as required by Subsection (a). all discovery in a health care liability claim is stayed
. . . (emphasis added). MMC, Defendants, contort this clear language as follows:
An expert report has not been served if it is does not comply with the requirements
of Section 74.351. Lewis v. Funderburk, 253 S.W.3d, 204 (Tex. 2008).
Defendants have challenged the Plaintiffs' expert reports' failure to comply with
the requirements of Section 74.351. This Court has not determined that
Plaintiffs' expert reports comply with the requirements of Section 74.351.
Therefore, there has been no service of the expert reports as to McAIIen Medical
Center. Thus, discovery is stayed until final judicial determination that Plaintiffs'
expert reports comply with the requirements of Section 74.351. (MMC’s Motion
for Protective Order and Stay, page 3)
MMC Defendants have turned 74.351(s) on its head. MMC Defendants, argue that by
merely objecting to an Expert Report, an automatic stay must be placed on all discovery.
The expert report must only be “served” upon a Defendant. MMC provides no legal basis
for this novel theory whatsoever. It is not required that a Court must place an automatic
stay on all discovery until this Court has “determined that Plaintiffs' expert reports comply
with the requirements of Section 74.351”. (Ibid.) Rather, ifthe Court determines that an
Expert Report does not comply with the requirements of Section 74.351, only then is an
automatic stay on alldiscovery required.
3|P/aintiffs’ Response to MMC’s Motion for Protective Order &
Motion to Stay
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Hidalgo County District Clerks
Reviewed By: Monica Valdez
H. Additional Support that Plaintiffs are Entitled to MMC Discovery: The Texas
Supreme Court, in a very recent case decided December 20, 2019, In re Turner, No. 18-
0102, pg. 9 (Tex. 2019), held that a Plaintiff that properly serves a Chapter 74 compliant
Expert Report on a party may seek discovery from a different entity, even without serving
an Expert Report on that entity. The scope of discovery is limited to discovery that
pertains to the claim where an adequate Expert Report was filed. In this case, Plaintiffs
have properly and adequately filed Expert Reports against Dr. Fulp. These Expert
Reports have not been objected to timely or otherwise. Therefore, Plaintiffs may seek
discovery from MMC, so long as the discovery sought is within the scope of the claim
against Dr. Fulp.
|. Privilege Log: For the above stated reasons, MMC Defendants are also required
to produce a privilege log for all material withheld on the grounds of privilege.
CONSIDERING THE ABOVE, Plaintiffs’ request that MMC Defendants’ Motion for
Protective Order and to Stay Discovery be DENIED.
Respectfully submitted,
/s/ Jerry D. Patchen
JERRY D. PATCHEN
SBA No. 15561000
1400 Congress
Houston, Texas 77002
(713) 222-2000
(71 3) 222-2329 fax
ipatchen@1400conqress.com
Attorney for Plaintiffs
4|P/aintiffs’ Response to MMC’s Motion for Protective Order &
Motion to Stay
Electronically Filed
1/13/2020 4:59 PM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the foregoing Plaintifis’ Response
to McAllen Hospitals, L.P. D/B/A McAllen Medical Center, South Texas Health System
and McAllen Medical Center, |nc.’s & Motion for Protective Order and Motion to Stay A||
Discovery was served in accordance with Rules 21 and 21a of the Texas Rules of Civil
Procedure to all parties through their below listed counsel on the 13th day of January,
2020.
VIA E-SERVICE VIA E-SERVICE
Ronald G. Hole William Gault
Hole & Alvarez, LLP Gault, Nye & Quintana, LLP
612 W. Nolana Loop, Suite 370 P.O. Box 5959
P.O. Box 720547 Brownsville, Texas 78523
McAllen, Texas 78504-0547 bqault@qnqlawvers.com
ron@ho|ealvarez.com Attorney for Robert C. Fountila, DO
Attorney for Raymond R. Fu/p, Illand
Ray Fulp Orthopedics, PA
VIA E-SERVICE VIA E-SERVICE
Edward J. Castillo, C. Brandon Holubar
Gonzalez Castillo, LLP, Gonzalez Castillo, LLP,
1317 E. Quebec Avenue, 1317 E. Quebec Avenue,
McAllen, Texas 78503 McAllen, Texas 78503
|aw@va|leyfirm.com bholubar@vallevfirm.com
Attorney for Defendants McAllen Attorney for Defendants McAllen
Hospitals, LP, McAllen Medical Center, Hospitals, LP, McAllen Medical Center,
South Texas Health System, McAllen South Texas Health System, McAllen
Medical Center, Inc. Medical Center, Inc.
/s/ Jerry D. Patchen
JERRY D. PATCHEN
\\JDP2012\Document\JDP\CIient\GONZALEZ, Regino\P\Response MMC Protective
(Plaintiff) to Order -Stay.docx
5|P/aintiffs’ Response to MMC’s Motion for Protective Order &
Motion to Stay
Preview
Electronically Filed 1/13/2020 4:59 PM Hidalgo County District Clerks Reviewed By: Monica Valdez CAUSE NO. C-0973-1 3-A JUANA LAGUNA, § IN THE DISTRICT COURT OF JOANNA GONZALEZ ACEVEDO, as § Administrator of THE ESTATE OF § REGINO GONZALEZ, JR., § Plaintiffs § vs. é RAY R. FULP, Ill, D0, § HIDALGO COUNTY, TEXAS RAY FULP ORTHOPEDICS, PA, § ROBERT C. FOUNTILA, DO, § MCALLEN HOSPITALS, LP, § MCALLEN MEDICAL CENTER, § SOUTH TEXAS HEALTH SYSTEM § MCALLEN MEDICAL CENTER, INC., § Defendants § 92nd JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO MCALLEN HOSPITALS, L.P. DIB/A MCALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM AND MCALLEN MEDICAL CENTER, INC.’S MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: The PLAINTIFFS in the above case file this, their Response to MCALLEN HOSPITALS, L.P., MCALLEN MEDICAL CENTER; SOUTH TEXAS HEALTH SYSTEM; and MCALLEN MEDICAL CENTER, |NC.’s (Collectively “MMC”), MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY as follows: |. Motion for Stay A. Basis for Motion to Stay and Protective Order: On January 2, 2020, MMC filed a Motion for Protective Order and to Stay A|| Discovery. The premise of MMC’S Motion was that the Plaintiffs’ Expert Reports were “untimely” because of the expiration of the Expert Report deadline. B. First Lawsuit bv Plaintiffs - Non-suited: MMC correctly contended that the lawsuit against MMC was first filed March 15, 2013. Plaintiffs non-suited MMC on June 24, 2013, before the Expert Report deadline of July 3, 2013. Itis important to note that Electronically Filed 1/13/2020 4:59 PM Hidalgo County District Clerks Reviewed By: Monica Valdez the Plaintiffs only filed the First Lawsuit against McAllen Hospitals, LP d/b/a McAllen Medical Center. C. Second Lawsuit bv Plaintiffs Addinq Two MMC Defendants: On December 14, 2018, the Plaintiffs essentially filed a Second Lawsuit by filing Plaintiffs Second Amended Petition seeking damages under the Wrongful Death Statute and Survival Statute, as a result of the death of REGINO GONZALEZ, JR. (“REGINO”) on March 25, 2017. The Second Lawsuit was based on the negligence and willful and wanton conduct of McAllen Hospitals, LP and McAllen Medical Center. The Plaintiffs, in the Second Lawsuit, added two (2) new parties as Defendants, South Texas Health System and McAllen Medical Center, Inc. Plaintiffs’ Wrongful Death and Survival claims were not filed on March 15, 2013, because REGINO was stillalive at the time, and therefore Chapter 74’s 120-day Expert Report deadline did not begin to run against any MMC Defendant until MMC filed their Answer to Plaintiffs’ Second Amended Petition. D. Deadline for Plaintiffs’ Expert Reports: MMC filed their Answer on February 4, 2019. The Plaintiff’s medical Expert Reports deadline as to MMC was June 4, 2019. The Plaintiffs filed a total of six (6) Medical Expert Reports, five (5) on May 31, 2019 and one (1) on June 3, 2019, within 120 days of MMC filing its Answer. E. MMC’S Claim of No Expert Report is Erroneous: MMC’S claim, “Plaintiffs never served an expert report on the hospital at any time,” is totally erroneous. JUANA LAGUNA did timely file her Expert Reports. F. MMC’s Obiection to Plaintiffs’ Expert Reports was Never Presented to the Court for Hearing: On July 31, 2019, this Court considered the Motion for Summary Judgment and the Motion to Dismiss filed by MMC. In MMC’S Motion to Stay All Discovery, on page 2, paragraph 5, MMC’S claim that, “On July 31st, 2019, the hearing on Defendants’ Objections to Plaintiffs’ expert reports was held and the Motion was taken under 2|P/aintiffs’ Response to MMC’s Motion for Protective Order & Motion to Stay Electronically Filed 1/13/2020 4:59 PM Hidalgo County District Clerks Reviewed By: Monica Valdez advisement,” is absolutely wrong. MMC’S Objections to the Expert Reports were not presented or considered by The Court. MMC’s Objections were specifically designated as “subject to MMC’s Motion for Summary Judgment and Motion to Dismiss”. There was not one word, not a humming bird’s whisper, presented to the Court concerning whether or not the Expert Reports contained the required elements of standard of care, breach of the standard of care, causation and liability. MMC Defendants clearly deferred presenting their objections until the Court ruled on MMC’S Motion for Summary Judgment and Motion to Dismiss. G. Leqal Basis to Stav Discovery: TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(s) is clear that: “Until a claimant has served the expert report and curriculum vitae as required by Subsection (a). all discovery in a health care liability claim is stayed . . . (emphasis added). MMC, Defendants, contort this clear language as follows: An expert report has not been served if it is does not comply with the requirements of Section 74.351. Lewis v. Funderburk, 253 S.W.3d, 204 (Tex. 2008). Defendants have challenged the Plaintiffs' expert reports' failure to comply with the requirements of Section 74.351. This Court has not determined that Plaintiffs' expert reports comply with the requirements of Section 74.351. Therefore, there has been no service of the expert reports as to McAIIen Medical Center. Thus, discovery is stayed until final judicial determination that Plaintiffs' expert reports comply with the requirements of Section 74.351. (MMC’s Motion for Protective Order and Stay, page 3) MMC Defendants have turned 74.351(s) on its head. MMC Defendants, argue that by merely objecting to an Expert Report, an automatic stay must be placed on all discovery. The expert report must only be “served” upon a Defendant. MMC provides no legal basis for this novel theory whatsoever. It is not required that a Court must place an automatic stay on all discovery until this Court has “determined that Plaintiffs' expert reports comply with the requirements of Section 74.351”. (Ibid.) Rather, ifthe Court determines that an Expert Report does not comply with the requirements of Section 74.351, only then is an automatic stay on alldiscovery required. 3|P/aintiffs’ Response to MMC’s Motion for Protective Order & Motion to Stay Electronically Filed 1/13/2020 4:59 PM Hidalgo County District Clerks Reviewed By: Monica Valdez H. Additional Support that Plaintiffs are Entitled to MMC Discovery: The Texas Supreme Court, in a very recent case decided December 20, 2019, In re Turner, No. 18- 0102, pg. 9 (Tex. 2019), held that a Plaintiff that properly serves a Chapter 74 compliant Expert Report on a party may seek discovery from a different entity, even without serving an Expert Report on that entity. The scope of discovery is limited to discovery that pertains to the claim where an adequate Expert Report was filed. In this case, Plaintiffs have properly and adequately filed Expert Reports against Dr. Fulp. These Expert Reports have not been objected to timely or otherwise. Therefore, Plaintiffs may seek discovery from MMC, so long as the discovery sought is within the scope of the claim against Dr. Fulp. |. Privilege Log: For the above stated reasons, MMC Defendants are also required to produce a privilege log for all material withheld on the grounds of privilege. CONSIDERING THE ABOVE, Plaintiffs’ request that MMC Defendants’ Motion for Protective Order and to Stay Discovery be DENIED. Respectfully submitted, /s/ Jerry D. Patchen JERRY D. PATCHEN SBA No. 15561000 1400 Congress Houston, Texas 77002 (713) 222-2000 (71 3) 222-2329 fax ipatchen@1400conqress.com Attorney for Plaintiffs 4|P/aintiffs’ Response to MMC’s Motion for Protective Order & Motion to Stay Electronically Filed 1/13/2020 4:59 PM Hidalgo County District Clerks Reviewed By: Monica Valdez CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Plaintifis’ Response to McAllen Hospitals, L.P. D/B/A McAllen Medical Center, South Texas Health System and McAllen Medical Center, |nc.’s & Motion for Protective Order and Motion to Stay A|| Discovery was served in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure to all parties through their below listed counsel on the 13th day of January, 2020. VIA E-SERVICE VIA E-SERVICE Ronald G. Hole William Gault Hole & Alvarez, LLP Gault, Nye & Quintana, LLP 612 W. Nolana Loop, Suite 370 P.O. Box 5959 P.O. Box 720547 Brownsville, Texas 78523 McAllen, Texas 78504-0547 bqault@qnqlawvers.com ron@ho|ealvarez.com Attorney for Robert C. Fountila, DO Attorney for Raymond R. Fu/p, Illand Ray Fulp Orthopedics, PA VIA E-SERVICE VIA E-SERVICE Edward J. Castillo, C. Brandon Holubar Gonzalez Castillo, LLP, Gonzalez Castillo, LLP, 1317 E. Quebec Avenue, 1317 E. Quebec Avenue, McAllen, Texas 78503 McAllen, Texas 78503 |aw@va|leyfirm.com bholubar@vallevfirm.com Attorney for Defendants McAllen Attorney for Defendants McAllen Hospitals, LP, McAllen Medical Center, Hospitals, LP, McAllen Medical Center, South Texas Health System, McAllen South Texas Health System, McAllen Medical Center, Inc. Medical Center, Inc. /s/ Jerry D. Patchen JERRY D. PATCHEN \\JDP2012\Document\JDP\CIient\GONZALEZ, Regino\P\Response MMC Protective (Plaintiff) to Order -Stay.docx 5|P/aintiffs’ Response to MMC’s Motion for Protective Order & Motion to Stay