Preview
FILED
2/14/2020 3:38PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
Loaidi Grove
CAUSE NO. DC-20-00255
AMY WICKERSHAM AND PERRY IN THE DISTRICT COURT
WICKERSHAM
Plaintiffs
v.
BENHAMIN BRASHEAR, M.D.; DALLAS COUNTY, TEXAS
GARRY GUCE, M.D.; DANIEL
SCHEURICH, M.D.; GUSTAVO DEL WWWWWWWWWWWWWWWWWWW
TORO, D.O.; PAUL GUTTUSO, M.D.;
CHRISTINA D. WRIGHT, R.D.;
BRASHEAR FAMILY MEDICAL, P.A.;
WELLMED MEDICAL GROUP, P.A.
D/B/A WELLMED AT KAUFMAN;
TEXAS HEALTH PRESBYTERIAN
HOSPITAL KAUFMAN; ET AL
Defendants 44TH JUDICIAL DISTRICT
DEFENDANT TEXAS HEALTH PRESBYTERIAN HOSPITAL
KAUFMAN’S MOTION TO TRANSFER VENUE, PLEA IN ABATEMENT
AND ORIGINAL ANSWER SUBJECT THERETO
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Texas Health Presbyterian Hospital Kaufman (“Defendant 0r
THK”), Defendant in the above entitled and numbered cause and files this its Motion
t0 Transfer Venue, Plea in Abatement and Original Answer Subject Thereto and in
support thereof would respectfully show this Honorable Court the following:
WICKERSHAM — THK MTV AND ANSWER PAGE 1
I.
MOTION TO TRANSFER VENUE
Pursuant t0 Texas Rule 0f Civil Procedure 86, Defendant THK moves t0
transfer venue t0 Kaufman County, Texas. In their petition, Mr. and Mrs.
Wickersham detail care and treatment provided t0 Mrs. Wickersham by many
healthcare providers at Texas Health Presbyterian Hospital Kaufman (a hospital
located in Kaufman County) Which forms the foundation of their allegations against
all Defendants including THK.
Pleading further and in the alternative, as alleged, the foundation 0f
Plaintiffs’ cause 0f action arises out 0f occurrences in Kaufman County, Texas.
Plaintiffs’ cause of action, if it exists, accrued in Kaufman County, Texas. Section
15.002 of the Texas Civil Practice and Remedies Code provides:
Except as otherwise provided by this subchapter 0r by
subchapter b 0r c, all lawsuits shall be brought in the
county in which all 0r part of the cause 0f action accrued
0r in the county 0f the defendant’s residence, if defendant
is a natural person.
We need only 100k t0 TeX. CiV. Prac. & Remedies Code § 15.006 t0 answer
the question 0f When venue is determined. The statute provides that it is at the
precise moment that the cause 0f action accrues. As t0 When the cause 0f action
accrues, the law in Texas has been well settled and unchanged since the Plea 0f
Privilege days. The Texas Supreme Court held in GM Acceptance Corp. vs.
WICKERSHAM — THK MTV AND ANSWER PAGE 2
Howard, 487 S.W.2d 708, 710 that a cause 0f action accrues When “facts come
into existence Which entitle one t0 institute and maintain a suit.” Defendant
believes that using this analysis coupled With the evidence before this court, there
can be n0 doubt that the proper venue is Kaufman County. It is clear from
Plaintiffs’ elaborate and detailed statement of facts that Plaintiffs’ cause 0f action
came into existence in Kaufman County, Texas at Texas Health Presbyterian
Hospital Kaufman.
Texas Health Presbyterian Hospital Kaufman is an independent healthcare
facility located in Kaufman County and is the facility Where much of the healthcare
at issue in this case was provided. Plaintiffs’ cause 0f action herein accrued in
Kaufman County, Texas. Health care at issue was rendered in Kaufman County.
Accordingly, Kaufman County is the proper county of venue and not Dallas
County.
II.
Defendant specifically denies the venue facts pled in Plaintiffs’ First
Amended Petition. T0 the extent that any 0f the Plaintiffs’ allegations could be
construed as venue facts, they are denied.
WICKERSHAM — THK MTV AND ANSWER PAGE 3
III.
FORUM NON CONVENIENS
Pleading further and in the alternative, should the same be necessary,
Defendant would show that this matter should be transferred to Kaufman County
pursuant t0 Texas Civil Practice and Remedies Code §15.002(b), for the
convenience 0f the parties and in the interest ofjustice. As stated above, Kaufman
County is the county 0f proper venue. Maintaining this suit in Dallas County
would work a hardship 0n the Defendant THK because if the hospital staff at THK
is required t0 participate in trial in Dallas County, itWill take them away from their
responsibilities delivering healthcare in Kaufman County. T0 d0 so would require
Defendant THK t0 alter work schedules 0r perhaps engage temporary employees t0
fill the void by those participating in the trial. Defendant would further show that
the balance 0f all the parties’ interests in this matter weighs in favor 0f the suit
being transferred t0 Kaufman County. The care and treatment at issue herein
occurred in Kaufman County. The individuals who rendered that care either work
and/or reside in Kaufman County. Many 0f the witnesses to the facts made the
basis 0f this suit work and/or reside in Kaufman County. The physicians Who were
involved in the care and treatment at Texas Health Kaufman work and/or reside in
Kaufman County. The evidence Which will be introduced in this matter relating t0
the care at Texas Health Kaufman will almost certainly be kept in the ordinary
WICKERSHAM — THK MTV AND ANSWER PAGE 4
course 0f business in Kaufman County. Plaintiffs reside in Kaufman County,
Texas, therefore, the transfer 0f this matter t0 Kaufman County Will not impose a
hardship 0r injustice 0n the Plaintiffs, 0r any other party.
IV.
Defendant respectfully requests that this action be transferred t0 a District
Court in Kaufman County, Texas, where proper venue lies in this cause.
V.
GENERAL DENIAL AND JURY DEMAND
Defendant THK denies each and every, all and singular, the allegations
contained in Plaintiffs’ First Amended Petition and demands strict proof thereof by
a preponderance 0f evidence before a jury.
VI.
DISCOVERY CONTROL PLAN
Defendant THK agrees t0 conduct discovery under Rule 190.4 0f the Texas
Rules of Civil Procedure (Level 3).
VII.
REQUEST FOR DISCLOSURE
Pursuant to Texas Rule 0f Civil Procedure 194, THK requests that Plaintiffs
disclose, within 30 days 0f the service 0f this request, the information or materials
described in Rule 194.2.
WICKERSHAM — THK MTV AND ANSWER PAGE 5
VIII.
SPECIAL EXCEPTIONS
a. Defendant objects and specially excepts t0 Paragraphs 56, 71 and 75 0f
Plaintiffs’ Amended Petition. Defendant would show that the allegations 0f
negligence against THK included in Plaintiffs’ Amended Petition, as a matter of law,
d0 not rise t0 the level 0f gross negligence as the term is defined by law and
interpreted by the Supreme Court of Texas. As such, these allegations have been
made in bad faith and for the sole purpose 0f harassing Defendant. Further, said
allegations fail t0 apprise Defendant ofthe specific acts 0r omissions which Plaintiffs
believe rise t0 the level 0f gross negligence 0r malice. In order t0 formulate an
effective defense, Defendant must be advised 0fthe specific acts 0r omissions Which
Plaintiffs contend were malicious 0n the part of Defendant along with identification
0f the individuals who allegedly carried out the conduct complained 0f.
b. Defendant objects and specially excepts t0 Paragraph 21 0f Plaintiffs’
First Amended Petition wherein Plaintiffs claim to have complied with the Pre-Suit
Notice provision 0f Chapter 74. Pursuant t0 Section 74.051 0f the Texas Civil
Practice & Remedies Code, a defendant is entitled t0 at least sixty (60) days’ notice
before the filing 0f any suit against that specific Defendant. Plaintiffs filed suit
against THK 0n January 6, 2020. Defendant received Plaintiffs’ Pre-Suit Notice
(dated December 12, 2019) 0n December 17, 2019. Because Plaintiffs failed t0
WICKERSHAM — THK MTV AND ANSWER PAGE 6
comply with said notice provision, Defendant asks this court for the exclusive
remedy t0 Which it is entitled, a 60-day abatement, running from the date the order
is signed granting said abatement.
c. Defendant obj ects and specially excepts t0 Paragraphs 65 0f Plaintiffs’
First Amended Petition wherein Plaintiffs attempt to impose a claim of Vicarious
liability upon THK. Plaintiffs fail t0 identify the agents, representatives, nursing
staff, officers, directors, servants and/or employees of Defendant THK that carried
out the negligence alleged in Plaintiffs’ First Amended Petition. Without said
identification, Defendant THK cannot properly prepare its defenses. A varied
number 0f individuals provide care or treatment within the confines 0f a hospital.
Many of those individuals are not employed by the hospital and further, said
hospital may not be vicariously responsible for them. A number 0f such care givers
are independently licensed and regulated and are not employed by the hospital.
Accordingly, specific identification, either by name 0r description in the record, is
necessary for Defendant THK t0 determine the applicable defenses t0 Plaintiffs’
allegations.
d. Defendant objects and specially excepts t0 Paragraph 69 0f Plaintiffs’
First Amended Petition because Section 74.053 of Texas Civil Practice and
Remedies Code mandates that Plaintiffs must advise this Court and Defendant in
writing 0f the total dollar amount 0f damages claimed against it. Plaintiff has not
pled compliance With the statute and has not provided the required information t0
WICKERSHAM — THK MTV AND ANSWER PAGE 7
Defendant. As such, this court lacks jurisdiction over the subject matter 0fthe case.
Plaintiff should be required t0 comply With the statute and their failure t0 d0 so
leaves this court without jurisdiction.
The allegations specially excepted to above fail t0 give Defendant fair notice
of the claims being made against it. As such, Defendant is unable t0 formulate an
effective defense. Accordingly, Defendant prays that said allegations be stricken
from the pleadings herein and Plaintiffs be given a specified period of time within
which t0 replead With specificity, if they can d0 so. Of these special exceptions,
Defendant also prays for judgment 0f this Court.
IX.
ADDITIONAL DEFENSES
For further answer, if the same be necessary, Defendant affirmatively pleads
as follows:
a. The injuries and damages 0f which Plaintiffs complain were not caused
by any act 0r omission 0f Defendant.
b. The injuries, damages, 0r liabilities 0f which the Plaintiffs complain, if
any exist, are the result in Whole or in part 0f a pre—existing condition and/or
disability and are not the result 0f any act or omission 0n the part 0f Defendant.
c. The injuries 0f Which Plaintiffs complain, if any exist, were Wholly
caused by a new and independent cause 0r causes not reasonably foreseeable by
WICKERSHAM — THK MTV AND ANSWER PAGE 8
Defendant, or by intervening acts 0f others which were the sole proximate cause, or
in the alternative, a proximate cause t0 any injuries 0r damages t0 Plaintiffs, and
therefore, such new and independent acts 0r causes became the immediate and
efficient cause 0r causes of injury, such that any and all of the negligent acts or
omissions of which Plaintiffs complain as t0 these Defendant were not the cause of
any damages 0r injuries suffered by Plaintiffs.
d. The matters 0f which Plaintiffs complain, if true, were as t0 Defendant
wholly and completely unavoidable, and if said matters occurred, it was Without
negligence on the part of Defendant. In this connection, Defendant would show that
the occurrence in question was the result 0f events and/or conditions Which were
Wholly beyond the scope and control 0f Defendant, and for which they are not
responsible.
e. The injuries and damages 0f Which Plaintiffs complain were solely 0r
alternatively, proximately caused by the acts 0r omissions of a third party, not party
t0 this litigation, and over Whom these Defendant had n0 control.
f. At this time, Defendant is unaware of any settlement by any alleged
tortfeasor; however, in the event that any settlement is or has been made by any
alleged tortfeasor, then Defendant is entitled t0 full credit, offset, pro rata reduction
0r percentage reduction based on the percentage 0f the fault or causation attributable
to the settling Defendant herein, and Defendant hereby makes known to the other
WICKERSHAM — THK MTV AND ANSWER PAGE 9
parties and to the Court that itWill avail itself of his rights under Chapter 33 0f the
Texas Civil Practice and Remedies Code 0r other statute 0r common law rule.
g. Defendant denies any and all liability on his part t0 Plaintiffs; however,
if the Court 01' jury should find that Defendant and any other Defendant in this cause
were negligent or otherwise jointly and severally liable to Plaintiffs, then Defendant
makes known t0 the Court and the other Defendants herein that itWill avail itself 0f
his rights under Chapters 32 and 33 of the Texas Civil Practice and Remedies Code
0r other applicable statute 0r common law rule, and would ask the Court to enter
judgment for contribution or alternatively, indemnity. In order t0 preserve his
procedural rights and remedies With respect t0 submission 0f comparative
fault/proportionate responsibility should settlements be effectuated, Defendant
states that any such settling person 0r parties negligently caused the damages
claimed by Plaintiffs in this lawsuit.
h. Defendant affirmatively pleads the liability limits set forth in
Subchapter G of Chapter 74 the Texas Civil Practice and Remedies Code.
i. Defendant asserts that at all times relevant to this cause, it was a “health
care provider” as that term is defined by TeX. CiV. Prac. & Rem. Code §74.001(12).
j. Defendant asserts that Plaintiffs’ claims against it constitute a
“healthcare liability claim” as that term is defined by TeX. CiV. Prac. & Rem. Code
WICKERSHAM — THK MTV AND ANSWER PAGE 10
§74.001(13). Accordingly, Defendant invokes each 0f the applicable provisions 0f
Chapter 74, Texas Civil Practice & Remedies Code.
k. Defendant pleads that any findings against it may not be based solely
0n evidence 0f an alleged bad result t0 Amy Wickersham and assert its right t0 the
instruction set forth in TeX. CiV. Prac. & Rem. Code §74.303(e)(2) pursuant to TeX.
CiV. Prac. & Rem. Code §74.201.
1. Defendant asserts that claims for pre- and post-judgment interest are
limited by the dates and amounts set forth in §304 0f the Texas Finance Code, Ch.
41, TeX. CiV. Prac. & Rem. Code, and TeX. CiV. Prac. & Rem. Code §74.301 and
§74.302.
m. Defendant pleads by way 0f affirmative defense that any recovery for
medical or healthcare expenses incurred is limited t0 the amount actually paid 0r
incurred by 0r on behalf 0f the claimant, pursuant t0 TeX. Civ. Prac. & Rem. Code
§41.0105.
n. Defendant asserts that its civil liability for non-economic damages in
this case, if any, is limited in keeping with the provisions of TeX. CiV. Prac. & Rem.
Code §74.301(a).
o. In the unlikely event that a court 0r jury should find that the alleged
negligence 0f Defendant proximately caused injury to Plaintiffs, Which is herein
expressly denied, Defendant gives notice that it Will request that the Court order
WICKERSHAM — THK MTV AND ANSWER PAGE 11
payment of any future medical or health care services t0 be paid in periodic payments
rather than by a lump-sum payment, as provided for by Texas Civil Practice and
Remedies Code §§74.501-74.507.
p. Defendant invokes the evidentiary requirements 0f Texas Civil Practice
and Remedies Code 18.091(a) With regard t0 any claim for loss of earnings, loss of
earning capacity, loss 0f contributions 0f a pecuniary value, 0r loss 0f inheritance.
Defendant also asserts its right to the instruction set forth in Tex. CiV. Prac. & Rem.
Code 18.091(b), that such alleged damages amounts are subject to federal or state
income taxes.
q. In the unlikely event that the Court should submit this cause 0n the basis
0f punitive damages, Defendant would show that:
1. Consideration of any punitive damages in this civil action
violates the due process clauses 0f the Fifth and Fourteenth
Amendments 0f the United States Constitution;
2. An award 0f punitive damages, if allowed, is a punishment and
quasi-criminal sanction for which Defendant is not afforded the
specific procedural safeguards prescribed by the Fourth, Fifth
and Sixth Amendments of the United States Constitution;
3. An award 0f punitive damages, if allowed, would also Violate
Article 1, Sections 3, 13, and 19 0f the Texas Constitution.
WICKERSHAM — THK MTV AND ANSWER PAGE 12
4. An award 0f punitive damages is limited by Texas Civil Practice
& Remedies Code, §41.008.
X.
PLEA IN ABATEMENT
Pursuant to Section 74.051 of the Texas Civil Practice & Remedies Code, a
defendant is entitled t0 at least sixty (60) days’ notice before the filing 0f any suit
against that specific Defendant. Plaintiffs filed suit against THK 0n January 6, 2020.
Defendant received Plaintiffs’ Pre—Suit Notice (dated December 12, 2019) on
December 17, 2019. Because Plaintiffs failed t0 comply with said notice provision,
Defendant asks this court for the exclusive remedy t0 which it is entitled, a 6O -day
abatement, running from the date the order is signed granting said abatement.
By not providing the statutorily mandated notice, the Plaintiffs have failed
t0 comply with the provisions 0f Sections 74.05 1 and 74.052 0f the Code.
Pursuant to Chapter 74 of the Texas Civil Practices & Remedies Code and the
case law Which has interpreted the provisions of it, Defendant is entitled and hereby
requests an order granting this Plea in Abatement be entered in this action abating it
for a period 0f sixty (60) days from the date the order is signed by the Judge. See,
Schepps v. Presbyterian Hospital ofDallaS, 652 S.W.2d 934 (TeX. 1983); Rose v.
McCarren, 763 S.W.2d 518, 522 (TexApp. - Amarillo 1988, writ denied). Roberts
WICKERSHAM — THK MTV AND ANSWER PAGE 13
v. Southwest Texas Methodist Hospital, 811 S.W.2d 141, 144 (TexApp. - San
Antonio, 1991, writ denied).
WHEREFORE, PREMISES CONSIDERED, Defendant Texas Health
Presbyterian Hospital Kaufman prays that its Motion t0 Transfer Venue be granted
and that this case be transferred t0 a District Court in Kaufman County; that its Plea
in Abatement be granted; that its Special Exceptions t0 Plaintiffs’ Amended Petition
be sustained in their entirety; and that upon final hearing 0r trial hereof, that Plaintiffs
have and recover nothing by this suit and that Defendant g0 hence With costs without
day; and for such other and further relief, both general and special, at law 0r in
equity, t0 Which Defendant may be justly entitled.
WICKERSHAM — THK MTV AND ANSWER PAGE 14
Respectfully submitted,
ALAN CAMPBELL & ASSOCIATES, PC
5900 S. Lake Forest Drive
Suite 410
McKinney, Texas 75070
(469) 675-3881
(800) 793-7607 (Fax)
alan@alclawfirm.com
Alan L. Campbell
State Bar N0. 03692700
Elizabeth A. Campbell
State Bar No. 240922 14
Attorneyfor Texas Health
Presbyterian Hospital Kaufman
WICKERSHAM — THK MTV AND ANSWER PAGE 15
CERTIFICATE OF SERVICE
The undersigned certifies that 0n this the 14th day 0f February 2020, a true and
correct copy 0f the foregoing document was delivered Via e-service t0 the following
counsel 0f record:
VIA E-SER VICE VIA E-SER VICE
Steven R. Davis Ray Jackson
DAVIS & DAVIS THE JACKSON LAW FIRM
440 Louisiana, Suite 1850 1700 Pacific Ave., Suite 1045
Houston, Texas 77002 Dallas, Texas 75201
(713) 781—5200 Telephone (2 14) 65 1 -6250 Telephone
(713) 781-2235 Facsimile (2 14) 65 1 -6244 Facsimile
Attorneysfor Plaintiflfs Attorneyfor Gary Guce, MD.
VIA E-SER VICE VIA E-SER VICE
Cathy F. Bailey Missy Atwood
Amanda F. Hobbs GERMER BEAMAN & BROWN PLLC
STEED DUNNILL REYNOLDS 301 Congress Ave
BAILEY STEPHENSON LLP Suite 1700 Austin, Texas 78701
17 17 Main Street, Suite 2950 (5 12) 472-0288
Dallas, Texas 75201 (5 12) 472-9280 (Fax)
(469) 698-4200 Telephone
(469) 698-4201 Facsimile Counsel for Defendant Hospitalist
Medicine Physicians 0f Texas, PLLC
Attorneysfor Benjamin Brashear, MD. d/b/a Sound Physicians 0f Texas III
And Brashear Family Medical, P.A.
Alan L. Campbell
WICKERSHAM — THK MTV AND ANSWER PAGE 16
Preview
FILED 2/14/2020 3:38PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS Loaidi Grove CAUSE NO. DC-20-00255 AMY WICKERSHAM AND PERRY IN THE DISTRICT COURT WICKERSHAM Plaintiffs v. BENHAMIN BRASHEAR, M.D.; DALLAS COUNTY, TEXAS GARRY GUCE, M.D.; DANIEL SCHEURICH, M.D.; GUSTAVO DEL WWWWWWWWWWWWWWWWWWW TORO, D.O.; PAUL GUTTUSO, M.D.; CHRISTINA D. WRIGHT, R.D.; BRASHEAR FAMILY MEDICAL, P.A.; WELLMED MEDICAL GROUP, P.A. D/B/A WELLMED AT KAUFMAN; TEXAS HEALTH PRESBYTERIAN HOSPITAL KAUFMAN; ET AL Defendants 44TH JUDICIAL DISTRICT DEFENDANT TEXAS HEALTH PRESBYTERIAN HOSPITAL KAUFMAN’S MOTION TO TRANSFER VENUE, PLEA IN ABATEMENT AND ORIGINAL ANSWER SUBJECT THERETO TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Texas Health Presbyterian Hospital Kaufman (“Defendant 0r THK”), Defendant in the above entitled and numbered cause and files this its Motion t0 Transfer Venue, Plea in Abatement and Original Answer Subject Thereto and in support thereof would respectfully show this Honorable Court the following: WICKERSHAM — THK MTV AND ANSWER PAGE 1 I. MOTION TO TRANSFER VENUE Pursuant t0 Texas Rule 0f Civil Procedure 86, Defendant THK moves t0 transfer venue t0 Kaufman County, Texas. In their petition, Mr. and Mrs. Wickersham detail care and treatment provided t0 Mrs. Wickersham by many healthcare providers at Texas Health Presbyterian Hospital Kaufman (a hospital located in Kaufman County) Which forms the foundation of their allegations against all Defendants including THK. Pleading further and in the alternative, as alleged, the foundation 0f Plaintiffs’ cause 0f action arises out 0f occurrences in Kaufman County, Texas. Plaintiffs’ cause of action, if it exists, accrued in Kaufman County, Texas. Section 15.002 of the Texas Civil Practice and Remedies Code provides: Except as otherwise provided by this subchapter 0r by subchapter b 0r c, all lawsuits shall be brought in the county in which all 0r part of the cause 0f action accrued 0r in the county 0f the defendant’s residence, if defendant is a natural person. We need only 100k t0 TeX. CiV. Prac. & Remedies Code § 15.006 t0 answer the question 0f When venue is determined. The statute provides that it is at the precise moment that the cause 0f action accrues. As t0 When the cause 0f action accrues, the law in Texas has been well settled and unchanged since the Plea 0f Privilege days. The Texas Supreme Court held in GM Acceptance Corp. vs. WICKERSHAM — THK MTV AND ANSWER PAGE 2 Howard, 487 S.W.2d 708, 710 that a cause 0f action accrues When “facts come into existence Which entitle one t0 institute and maintain a suit.” Defendant believes that using this analysis coupled With the evidence before this court, there can be n0 doubt that the proper venue is Kaufman County. It is clear from Plaintiffs’ elaborate and detailed statement of facts that Plaintiffs’ cause 0f action came into existence in Kaufman County, Texas at Texas Health Presbyterian Hospital Kaufman. Texas Health Presbyterian Hospital Kaufman is an independent healthcare facility located in Kaufman County and is the facility Where much of the healthcare at issue in this case was provided. Plaintiffs’ cause 0f action herein accrued in Kaufman County, Texas. Health care at issue was rendered in Kaufman County. Accordingly, Kaufman County is the proper county of venue and not Dallas County. II. Defendant specifically denies the venue facts pled in Plaintiffs’ First Amended Petition. T0 the extent that any 0f the Plaintiffs’ allegations could be construed as venue facts, they are denied. WICKERSHAM — THK MTV AND ANSWER PAGE 3 III. FORUM NON CONVENIENS Pleading further and in the alternative, should the same be necessary, Defendant would show that this matter should be transferred to Kaufman County pursuant t0 Texas Civil Practice and Remedies Code §15.002(b), for the convenience 0f the parties and in the interest ofjustice. As stated above, Kaufman County is the county 0f proper venue. Maintaining this suit in Dallas County would work a hardship 0n the Defendant THK because if the hospital staff at THK is required t0 participate in trial in Dallas County, itWill take them away from their responsibilities delivering healthcare in Kaufman County. T0 d0 so would require Defendant THK t0 alter work schedules 0r perhaps engage temporary employees t0 fill the void by those participating in the trial. Defendant would further show that the balance 0f all the parties’ interests in this matter weighs in favor 0f the suit being transferred t0 Kaufman County. The care and treatment at issue herein occurred in Kaufman County. The individuals who rendered that care either work and/or reside in Kaufman County. Many 0f the witnesses to the facts made the basis 0f this suit work and/or reside in Kaufman County. The physicians Who were involved in the care and treatment at Texas Health Kaufman work and/or reside in Kaufman County. The evidence Which will be introduced in this matter relating t0 the care at Texas Health Kaufman will almost certainly be kept in the ordinary WICKERSHAM — THK MTV AND ANSWER PAGE 4 course 0f business in Kaufman County. Plaintiffs reside in Kaufman County, Texas, therefore, the transfer 0f this matter t0 Kaufman County Will not impose a hardship 0r injustice 0n the Plaintiffs, 0r any other party. IV. Defendant respectfully requests that this action be transferred t0 a District Court in Kaufman County, Texas, where proper venue lies in this cause. V. GENERAL DENIAL AND JURY DEMAND Defendant THK denies each and every, all and singular, the allegations contained in Plaintiffs’ First Amended Petition and demands strict proof thereof by a preponderance 0f evidence before a jury. VI. DISCOVERY CONTROL PLAN Defendant THK agrees t0 conduct discovery under Rule 190.4 0f the Texas Rules of Civil Procedure (Level 3). VII. REQUEST FOR DISCLOSURE Pursuant to Texas Rule 0f Civil Procedure 194, THK requests that Plaintiffs disclose, within 30 days 0f the service 0f this request, the information or materials described in Rule 194.2. WICKERSHAM — THK MTV AND ANSWER PAGE 5 VIII. SPECIAL EXCEPTIONS a. Defendant objects and specially excepts t0 Paragraphs 56, 71 and 75 0f Plaintiffs’ Amended Petition. Defendant would show that the allegations 0f negligence against THK included in Plaintiffs’ Amended Petition, as a matter of law, d0 not rise t0 the level 0f gross negligence as the term is defined by law and interpreted by the Supreme Court of Texas. As such, these allegations have been made in bad faith and for the sole purpose 0f harassing Defendant. Further, said allegations fail t0 apprise Defendant ofthe specific acts 0r omissions which Plaintiffs believe rise t0 the level 0f gross negligence 0r malice. In order t0 formulate an effective defense, Defendant must be advised 0fthe specific acts 0r omissions Which Plaintiffs contend were malicious 0n the part of Defendant along with identification 0f the individuals who allegedly carried out the conduct complained 0f. b. Defendant objects and specially excepts t0 Paragraph 21 0f Plaintiffs’ First Amended Petition wherein Plaintiffs claim to have complied with the Pre-Suit Notice provision 0f Chapter 74. Pursuant t0 Section 74.051 0f the Texas Civil Practice & Remedies Code, a defendant is entitled t0 at least sixty (60) days’ notice before the filing 0f any suit against that specific Defendant. Plaintiffs filed suit against THK 0n January 6, 2020. Defendant received Plaintiffs’ Pre-Suit Notice (dated December 12, 2019) 0n December 17, 2019. Because Plaintiffs failed t0 WICKERSHAM — THK MTV AND ANSWER PAGE 6 comply with said notice provision, Defendant asks this court for the exclusive remedy t0 Which it is entitled, a 60-day abatement, running from the date the order is signed granting said abatement. c. Defendant obj ects and specially excepts t0 Paragraphs 65 0f Plaintiffs’ First Amended Petition wherein Plaintiffs attempt to impose a claim of Vicarious liability upon THK. Plaintiffs fail t0 identify the agents, representatives, nursing staff, officers, directors, servants and/or employees of Defendant THK that carried out the negligence alleged in Plaintiffs’ First Amended Petition. Without said identification, Defendant THK cannot properly prepare its defenses. A varied number 0f individuals provide care or treatment within the confines 0f a hospital. Many of those individuals are not employed by the hospital and further, said hospital may not be vicariously responsible for them. A number 0f such care givers are independently licensed and regulated and are not employed by the hospital. Accordingly, specific identification, either by name 0r description in the record, is necessary for Defendant THK t0 determine the applicable defenses t0 Plaintiffs’ allegations. d. Defendant objects and specially excepts t0 Paragraph 69 0f Plaintiffs’ First Amended Petition because Section 74.053 of Texas Civil Practice and Remedies Code mandates that Plaintiffs must advise this Court and Defendant in writing 0f the total dollar amount 0f damages claimed against it. Plaintiff has not pled compliance With the statute and has not provided the required information t0 WICKERSHAM — THK MTV AND ANSWER PAGE 7 Defendant. As such, this court lacks jurisdiction over the subject matter 0fthe case. Plaintiff should be required t0 comply With the statute and their failure t0 d0 so leaves this court without jurisdiction. The allegations specially excepted to above fail t0 give Defendant fair notice of the claims being made against it. As such, Defendant is unable t0 formulate an effective defense. Accordingly, Defendant prays that said allegations be stricken from the pleadings herein and Plaintiffs be given a specified period of time within which t0 replead With specificity, if they can d0 so. Of these special exceptions, Defendant also prays for judgment 0f this Court. IX. ADDITIONAL DEFENSES For further answer, if the same be necessary, Defendant affirmatively pleads as follows: a. The injuries and damages 0f which Plaintiffs complain were not caused by any act 0r omission 0f Defendant. b. The injuries, damages, 0r liabilities 0f which the Plaintiffs complain, if any exist, are the result in Whole or in part 0f a pre—existing condition and/or disability and are not the result 0f any act or omission 0n the part 0f Defendant. c. The injuries 0f Which Plaintiffs complain, if any exist, were Wholly caused by a new and independent cause 0r causes not reasonably foreseeable by WICKERSHAM — THK MTV AND ANSWER PAGE 8 Defendant, or by intervening acts 0f others which were the sole proximate cause, or in the alternative, a proximate cause t0 any injuries 0r damages t0 Plaintiffs, and therefore, such new and independent acts 0r causes became the immediate and efficient cause 0r causes of injury, such that any and all of the negligent acts or omissions of which Plaintiffs complain as t0 these Defendant were not the cause of any damages 0r injuries suffered by Plaintiffs. d. The matters 0f which Plaintiffs complain, if true, were as t0 Defendant wholly and completely unavoidable, and if said matters occurred, it was Without negligence on the part of Defendant. In this connection, Defendant would show that the occurrence in question was the result 0f events and/or conditions Which were Wholly beyond the scope and control 0f Defendant, and for which they are not responsible. e. The injuries and damages 0f Which Plaintiffs complain were solely 0r alternatively, proximately caused by the acts 0r omissions of a third party, not party t0 this litigation, and over Whom these Defendant had n0 control. f. At this time, Defendant is unaware of any settlement by any alleged tortfeasor; however, in the event that any settlement is or has been made by any alleged tortfeasor, then Defendant is entitled t0 full credit, offset, pro rata reduction 0r percentage reduction based on the percentage 0f the fault or causation attributable to the settling Defendant herein, and Defendant hereby makes known to the other WICKERSHAM — THK MTV AND ANSWER PAGE 9 parties and to the Court that itWill avail itself of his rights under Chapter 33 0f the Texas Civil Practice and Remedies Code 0r other statute 0r common law rule. g. Defendant denies any and all liability on his part t0 Plaintiffs; however, if the Court 01' jury should find that Defendant and any other Defendant in this cause were negligent or otherwise jointly and severally liable to Plaintiffs, then Defendant makes known t0 the Court and the other Defendants herein that itWill avail itself 0f his rights under Chapters 32 and 33 of the Texas Civil Practice and Remedies Code 0r other applicable statute 0r common law rule, and would ask the Court to enter judgment for contribution or alternatively, indemnity. In order t0 preserve his procedural rights and remedies With respect t0 submission 0f comparative fault/proportionate responsibility should settlements be effectuated, Defendant states that any such settling person 0r parties negligently caused the damages claimed by Plaintiffs in this lawsuit. h. Defendant affirmatively pleads the liability limits set forth in Subchapter G of Chapter 74 the Texas Civil Practice and Remedies Code. i. Defendant asserts that at all times relevant to this cause, it was a “health care provider” as that term is defined by TeX. CiV. Prac. & Rem. Code §74.001(12). j. Defendant asserts that Plaintiffs’ claims against it constitute a “healthcare liability claim” as that term is defined by TeX. CiV. Prac. & Rem. Code WICKERSHAM — THK MTV AND ANSWER PAGE 10 §74.001(13). Accordingly, Defendant invokes each 0f the applicable provisions 0f Chapter 74, Texas Civil Practice & Remedies Code. k. Defendant pleads that any findings against it may not be based solely 0n evidence 0f an alleged bad result t0 Amy Wickersham and assert its right t0 the instruction set forth in TeX. CiV. Prac. & Rem. Code §74.303(e)(2) pursuant to TeX. CiV. Prac. & Rem. Code §74.201. 1. Defendant asserts that claims for pre- and post-judgment interest are limited by the dates and amounts set forth in §304 0f the Texas Finance Code, Ch. 41, TeX. CiV. Prac. & Rem. Code, and TeX. CiV. Prac. & Rem. Code §74.301 and §74.302. m. Defendant pleads by way 0f affirmative defense that any recovery for medical or healthcare expenses incurred is limited t0 the amount actually paid 0r incurred by 0r on behalf 0f the claimant, pursuant t0 TeX. Civ. Prac. & Rem. Code §41.0105. n. Defendant asserts that its civil liability for non-economic damages in this case, if any, is limited in keeping with the provisions of TeX. CiV. Prac. & Rem. Code §74.301(a). o. In the unlikely event that a court 0r jury should find that the alleged negligence 0f Defendant proximately caused injury to Plaintiffs, Which is herein expressly denied, Defendant gives notice that it Will request that the Court order WICKERSHAM — THK MTV AND ANSWER PAGE 11 payment of any future medical or health care services t0 be paid in periodic payments rather than by a lump-sum payment, as provided for by Texas Civil Practice and Remedies Code §§74.501-74.507. p. Defendant invokes the evidentiary requirements 0f Texas Civil Practice and Remedies Code 18.091(a) With regard t0 any claim for loss of earnings, loss of earning capacity, loss 0f contributions 0f a pecuniary value, 0r loss 0f inheritance. Defendant also asserts its right to the instruction set forth in Tex. CiV. Prac. & Rem. Code 18.091(b), that such alleged damages amounts are subject to federal or state income taxes. q. In the unlikely event that the Court should submit this cause 0n the basis 0f punitive damages, Defendant would show that: 1. Consideration of any punitive damages in this civil action violates the due process clauses 0f the Fifth and Fourteenth Amendments 0f the United States Constitution; 2. An award 0f punitive damages, if allowed, is a punishment and quasi-criminal sanction for which Defendant is not afforded the specific procedural safeguards prescribed by the Fourth, Fifth and Sixth Amendments of the United States Constitution; 3. An award 0f punitive damages, if allowed, would also Violate Article 1, Sections 3, 13, and 19 0f the Texas Constitution. WICKERSHAM — THK MTV AND ANSWER PAGE 12 4. An award 0f punitive damages is limited by Texas Civil Practice & Remedies Code, §41.008. X. PLEA IN ABATEMENT Pursuant to Section 74.051 of the Texas Civil Practice & Remedies Code, a defendant is entitled t0 at least sixty (60) days’ notice before the filing 0f any suit against that specific Defendant. Plaintiffs filed suit against THK 0n January 6, 2020. Defendant received Plaintiffs’ Pre—Suit Notice (dated December 12, 2019) on December 17, 2019. Because Plaintiffs failed t0 comply with said notice provision, Defendant asks this court for the exclusive remedy t0 which it is entitled, a 6O -day abatement, running from the date the order is signed granting said abatement. By not providing the statutorily mandated notice, the Plaintiffs have failed t0 comply with the provisions 0f Sections 74.05 1 and 74.052 0f the Code. Pursuant to Chapter 74 of the Texas Civil Practices & Remedies Code and the case law Which has interpreted the provisions of it, Defendant is entitled and hereby requests an order granting this Plea in Abatement be entered in this action abating it for a period 0f sixty (60) days from the date the order is signed by the Judge. See, Schepps v. Presbyterian Hospital ofDallaS, 652 S.W.2d 934 (TeX. 1983); Rose v. McCarren, 763 S.W.2d 518, 522 (TexApp. - Amarillo 1988, writ denied). Roberts WICKERSHAM — THK MTV AND ANSWER PAGE 13 v. Southwest Texas Methodist Hospital, 811 S.W.2d 141, 144 (TexApp. - San Antonio, 1991, writ denied). WHEREFORE, PREMISES CONSIDERED, Defendant Texas Health Presbyterian Hospital Kaufman prays that its Motion t0 Transfer Venue be granted and that this case be transferred t0 a District Court in Kaufman County; that its Plea in Abatement be granted; that its Special Exceptions t0 Plaintiffs’ Amended Petition be sustained in their entirety; and that upon final hearing 0r trial hereof, that Plaintiffs have and recover nothing by this suit and that Defendant g0 hence With costs without day; and for such other and further relief, both general and special, at law 0r in equity, t0 Which Defendant may be justly entitled. WICKERSHAM — THK MTV AND ANSWER PAGE 14 Respectfully submitted, ALAN CAMPBELL & ASSOCIATES, PC 5900 S. Lake Forest Drive Suite 410 McKinney, Texas 75070 (469) 675-3881 (800) 793-7607 (Fax) alan@alclawfirm.com Alan L. Campbell State Bar N0. 03692700 Elizabeth A. Campbell State Bar No. 240922 14 Attorneyfor Texas Health Presbyterian Hospital Kaufman WICKERSHAM — THK MTV AND ANSWER PAGE 15 CERTIFICATE OF SERVICE The undersigned certifies that 0n this the 14th day 0f February 2020, a true and correct copy 0f the foregoing document was delivered Via e-service t0 the following counsel 0f record: VIA E-SER VICE VIA E-SER VICE Steven R. Davis Ray Jackson DAVIS & DAVIS THE JACKSON LAW FIRM 440 Louisiana, Suite 1850 1700 Pacific Ave., Suite 1045 Houston, Texas 77002 Dallas, Texas 75201 (713) 781—5200 Telephone (2 14) 65 1 -6250 Telephone (713) 781-2235 Facsimile (2 14) 65 1 -6244 Facsimile Attorneysfor Plaintiflfs Attorneyfor Gary Guce, MD. VIA E-SER VICE VIA E-SER VICE Cathy F. Bailey Missy Atwood Amanda F. Hobbs GERMER BEAMAN & BROWN PLLC STEED DUNNILL REYNOLDS 301 Congress Ave BAILEY STEPHENSON LLP Suite 1700 Austin, Texas 78701 17 17 Main Street, Suite 2950 (5 12) 472-0288 Dallas, Texas 75201 (5 12) 472-9280 (Fax) (469) 698-4200 Telephone (469) 698-4201 Facsimile Counsel for Defendant Hospitalist Medicine Physicians 0f Texas, PLLC Attorneysfor Benjamin Brashear, MD. d/b/a Sound Physicians 0f Texas III And Brashear Family Medical, P.A. Alan L. Campbell WICKERSHAM — THK MTV AND ANSWER PAGE 16