Legal Document: SLR MEDICAL CONSULTING LLC vs. UNITED GENERAL HOSPITAL LLC

On October 22, 2019 a REPLY - RESPONSE was filed involving a dispute between Slr Medical Consulting Llc, and United General Hospital Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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CAUSE NO. DC-19-17053
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SLR MEDICAL CONSULTING, LLC § IN TH DISTRI TCOURT
Plaintiff §
§
v. §
§
UGH PAIN AND SPINE LLC, §
INCORRECTLY SUED AS UNITED §
GENERAL HOSPITAL LLC §
Defendant §
§
§ DALLAS COUNTY, TEXAS

DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S
MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:

Defendant UGH Pain and Spine LLC, incorrectly sued as United General Hospital LLC

(hereinafter, “Defendant”), ﬁles this Reply to Plaintiff’s Opposition to Defendant’s Motion to

Transfer Venue (the “Reply”) and respectfully shows unto this Court the following:

VENUE DOES NOT COMPLY WITH SECTION 15.002(a)

1. Plaintiff relies solely on Tex. Civ. Prac. & Rem. 15.001(a) in support of his claim

that venue isproper in Dallas County. Prior to its amendment in 1995, the general-venue law

allowed venue “in the county in which all malt of the cause of action accrued or in the county

of defendant’s residence....” Act of May 18, 1995, 74th Leg., R.S., ch. 138, 1,1995 Tex. Gen.
§

Laws 978 (amended 1995) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1)

(West 2002) (emphasis added). The amended venue statute “narrowed the number of counties in

Which venue could be maintained to those With a substantial connection to the lawsuit.” Chiriboga

v.State Farm Mut. Auto. Ins. Ca, 96 S.W.3d 673, 681 (Tex. App.——Austin, no pet.) (emphasis

added). Under the predecessor statute, a plaintiff could maintain venue in a county where any part

of a cause 0f action accrued, “no matter how unimportant the connection might be.” Id. The 1995

amended statute, however, “requires that the basis for venue be a ‘substantial part’ of the cause of

action at issue.” Id.
2. In conducting its venue analysis, this court must “determine whether the

substantiality threshold provided in section 15.002(a)(1) has been satisﬁed.” Highland Capital

Management, LP. v. Ryder Scott Co., 212 S.W.3d 522 (Tex. App.——Houston [15‘Dist] 2006). In

other words, venue is only proper if substantial connections exist between Dallas County and the

facts giving rise t0 this suit. Id. Plainly, the only connection Dallas County has with this lawsuit

is the allegation that Defendant was required to send payment for Plaintiff‘s goods to a Dallas

address. All remaining aspects involving the relationship between the Parties — including the

manner in which Plaintiff‘s products were ordered and supplied — were discussed, negotiated, and

agreed upon in person in Harris County, Texas. Accordingly, Dallas County does not meet the

substantiality threshold and venue is only proper in Harris County.

3. In support of its Motion, Defendant attaches the afﬁdavit of its Operations Director,

Marzia Kama], and incorporates itherein by reference at Exhibit A. As noted therein, Defendant

operated a healthcare facility in Harris County, wherein patients received various medical

procedures including artiﬁcial disc replacements, cervical fusions, and lumbar fusions. The

facility closed its doors 0n December 19, 2019. Before closing, Plaintiff, Via its agents and

representatives, supplied medical equipment t0 Dr. Kenneth Lee (“Dr. Lee”), a physician

employed by Defendant, pursuant t0 a pricing schedule at Defendant’s facilities in Harris County.

See Exhibit B. Notably, the pricing schedule atExhibit A is the only written agreement executed

between the Parties. Further, Exhibit A was executed at Defendant’s facilities in Harris County

by Plaintiff’ s agent, Lola Hernandez (“Ms. Hernandez”), and contains no provisions providing for

venue in Dallas County. Likewise, the relationship between the Parties was governed primarily

by in-person and oral Visits by Ms. Hernandez to Defendant’s facilities in Harris County.

Speciﬁcally, Plaintiff‘s agents, including Ms. Hernandez, would make themselves personally

available to Dr. Lee and his staff during operating procedures and would provide equipment as

necessary. During these in-person Visits, Dr. Lee and other healthcare providers would make note

of the medical equipment they need, and Plaintiff subsequently supplied the equipment at

Defendant’s Reply to Plaintiff‘s Opposition to Motion to Transfer Venue Page 2
Defendant’s facilities. As such, the bulk of the relationship between Plaintiff and Defendant took

place at Defendant’s facilities in Harris County.

4. Ultimately, the burden of proving that venue is proper in Dallas County falls on

Plaintiff. Plaintiff cannot meet this burden because Dallas County does not have substantial

connections to this lawsuit other than serving as a place of payment under to the invoices. Surely,

payment could have also been made elsewhere and Plaintiff would have invariably accepted

payment in person at Defendant’s facilities 0rthrough other means. Equally important, Defendant

never did business directly with Plaintiff’s principal place of business in Dallas County and only

negotiated With Plaintiff’s agents at Defendant’s facilities in Harris County. Accordingly,

Plaintiff’s choice of venue does not meet the substantiality threshold required by Tex. Civ. Prac.

& Rem. 15.001(a) as a substantial part of the events alleged to have given rise to this suit did not

occur in Dallas County, Texas.

DALLAS IS AN INCONVENIENT FORUM

4. Alternatively, Defendant requests transfer to Harris County for the convenience of

the parties and in the interest ofjustice. See Tex. Civ. Prac. & Rem. Code 15.002(b). As discussed

above, the facts giving rise to this lawsuit all occurred in or around Defendant’s facility in Harris

County. Maintenance of the action in Dallas County would work an injustice and considerable

expense towards Defendant given that most witnesses and parties involved are in Harris County.

Defendant’s facilities have now closed and all employees, including various witnesses who dealt

with Plaintiffs agents, are no longer employed by Defendant or under its control. To Defendant’s

knowledge, these individuals all reside in or around Harris County. Defendant would suffer

substantial personal and economic hardship in locating and transporting these individuals to Dallas

County should venue remain there.

5. Additionally, the Defendant’s ability to subpoena key witnesses t0 court would be

adversely affected as Dallas County falls outside the Parties’ subpoena power. Tex. R. Civ. P.

176.3 and Tex. Civ. Prac. & Rem. Code 22.002 limits a party’s subpoena power to 150 miles from

Defendant’s Reply to Plaintiff’s Opposition to Motion to Transfer Venue Page 3
the county of suit. Maintaining suit in Dallas would inhibit Defendant’s ability to subpoena and

call key witnesses to court that are no longer under Defendant’s control. See Exhibit A.

6. Considering the foregoing, the balance of interests 0f all the Parties predominates

in favor of transferring venue to Harris County. Most, if not all,of the facts giving rise t0 this suit

occurred in Harris County. The transfer of the action would not serve as an injustice t0 Plaintiff

given that Plaintiff’s agents personally conducted business in Harris County. Likewise, Plaintiff

would surely want to try the case in a county where itcan subpoena the witnesses needed to prove

its case. Accordingly, Defendant requests transfer to Harris County for the convenience of the

parties and in the interest ofjustice.

PRAYER
For these reasons, Defendant requests that this matter be set for hearing, and that on the

completion of the hearing, the Court grant Defendant’s Motion to Transfer Venue, and transfer

venue in this cause to the District Court of Harris County, Texas, taxing costs incurred herein

against Plaintiff, that Plaintifftake nothing by way of its suit, and that Defendant recovers allcosts

together with such other and further relief to which Defendant may be justly entitled.

Respectfully submitted,

CLARK HILL STRASBURGER
909 Fannin Street, Suite 2300
Houston, Texas 77010
Telephone: 713-951-5600
Facsimile: 713—951-5660

By: /s/ Ernesto Alvarez, Jr.
LOUIS W. WILLIAMS
State Bar No. 24088645
Email: lwilliams@clarkhill.com
ERNESTO ALVAREZ
State Bar N0. 241001 17
Email: ealvarez@clarkhill.com

ATTORNEYS FOR DEFENDANT

Defendant’s Reply to Plaintiff’s Opposition to Motion to Transfer Venue Page 4
CERTIFICATE OF SERVICE

The undersigned certiﬁes that a copy of the foregoing instrument was served upon the
Attorneys ofRecord ofall parties to the above cause Via electronic service in accordance with Rule
21a, Texas Rules of Civil Procedure, on the 17th day of February, 2020, as follows:

/s/Ernesto Alvarez, Jr.

ERNESTO ALVAREZ JR.

Defendant’s Reply to Plaintiff’s Opposition to Motion to Transfer Venue Page 5
CAUSE NO. DC-l9—l 7053

§ "N THE DISTRICT COURT 0F
SLR MEDlCAL CONSULTING, LLC
§
§
Plain tiff,
§
§ DALLAS COUNTY, TEXAS
v
§

UGH PAIN AND SPINE LLC.
g
INCORRECTLY SUED AS UNITE?)
§
GENERAL HOSPITAL LLC
§
Defendant.
g 134m JUDICIAL DlSTRICT

AFFIDAVIT OF MARZIA KAMAL
STATE OF TEXAS §

COUNTY 0F H131 {f2 g

BEFORE ME, the undersigned authority on this day personally appeared Marzia Kama],

known to me, and who. being by me ﬁrst duly sworn, upon oath, deposed and stated as foilows:

i. “My name is Marzia Kama}. Iam over twentyvone (2 l
) years of age, I am of sound

mind, and Iam fully competent t0 make thisAfﬁdavit. Ifcalled totestify I could and would testify

consistently with the statements in this Affidavit. The statements in this Affid avit are within my

persona] knowledge, and are true and correct.

2. 1am famiiiar with the above styled lawsuit and have read the pleadings. Likewise,

i have read “Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion t0 Transfer

Venue” (the “Repiy”) and ail information contained therein istrue and correct t0 the best of my

knowledge.

3. Iserved as Operations Director atUGH Pain and Spine LLC (hereinafter “UGH”),

a healthcare facility located at 5445 La Branch St, Housmn, Texas 77004. UGH provided various

healthcare services to patients such as artificialdisc replacements, cervical fusions, and lumbar

C7930\385726\481 1-1006~1748.v2-2/14/2{)
fusions. UGH closed itsdoors on December 19, 2019 and a1!employees were laid off. UGH n0
longs)“ operates.

4. In my capacity as Operations Director, I oversaw a1! of UGH’S administrative

aspects, includ Eng agreements with third «party vendors ofmedical equipment such as SLR Medical

Consuiting, LLC (hereinafter ”SLk”). Before UGH closed, SLR, via agents inciuding Lola

Hernandez, supplied medical equipment to Dr. Kenneth Lee (“Du Lee”) and his staff,pursuant to

a pricing schedule executed at UGH’S facilifies in Harris County. See Exhibit A of the Repiy. To

the extent ofmy knowtedge, the pricing schedule is tho oniy written agreement executed between

UGH and SLR.
5. UGH’s relationship with SLR mostly involved in —pcrson visitsby SLR’S agents,

including Ms. Hernandez, to UGH’S faciiities in Harris County. During these visits, SLR’s agents

would offer medical equipment to UGH’s physicians, including Dr. Lee, while the medicai

procedures were taken place. To the extent of my knowicdge, allequipment purchased from SLR

was purchased during an in-person visit from SLR’S agents to UGH‘S faciiities. {JGH never

purchased equipment directly from SLR outside 0f UGH’S facikities. Likewise, UGH’S agents,

incluciing itsofficers and directors, have never visited or negotiated with SLR at itsprincipal place

ofbusiness in Dallas County.

6. Now that UGH has ceased operations, itno longer has custodyor control over many

of itsformer employees, including key witnesses who dealt with the SLR account and have

personai knowiedge 0f the discussions and exchange of goods between the parties. T0 my

knowledge. most of these former empioyees currently live in or amund the Harris County area.

These include, amm‘zg others, technicians Michael Joiner and Jose Maldonado and Materiai

Director, Amanda Mantemayor. Given that these former cmpioyccs have knowtcdge of UGH and

C7930\385726MS£ 1-§006~I748N2~2ﬂ4f20
SLR‘S reiationship, UGH would uncicrgo considerabic personal and economic hardship inhaviag

to locate and transport these individuals to bearings and trial inDalias County.

FURTHER AFFIANTSAYEH‘! NAUGHT.
t...

Mania Kama}

SUBSCRIBED AND SWORN TO BEFORE ME (m this 17‘"day ofFebruary, 2020, t0

certify which witness my hand and seal ofoffice.
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Said County and State

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UGH PAIN & SPINE
CAPITATED SPINAL IMPLANT PRICING

1 PLATEjSCREWS X 4/INTERBODY X 1 $2,600
2 PLATE/SCREWS X 6/INTERBODY X 2 $3,900
3 PLATEjSCREWS X 8/INTERBODY X 3 $5,200
4- PLATE/SCREWS X10/INTERBODYX4- $6,500
PLATE ALLOWANCE $1,000 SCREW ALLOWANCE $150 TEMPORARY SCREW ALLOWANCE $100
PEEK CERVICAL INTERBODY ALLOWANCE $1.000

1 SCREWS X21 INTERBODY X 1 $3,300
Z SCREWS X 4/ INTERBODY X 2 '

$6,600
3 SCREWS X 6/ INTERBODY X 3 $9,900
INTERBODY ALLOWANCE $3,000 '

SCREW ALLOWANCE $150

2 SCREWS/SET SCREWS X Q/ ROD X 2
3 SCREWS/SET SCREWS X 8/ ROD X 2
4- SCREWS/SET SCREWS X lO/ROD X 2
5 SCREWS/SET SCREWS X 12/ ROD X 2 $10,650
ROD ALLOWANCE $300 SCREW ALLOWANCE $800 'SET SCREW ALLOWANCE $50 [CAP $450)
CROSSLINK ALLOWANCE $1,000 PEEK POSTERIOR TRANSFORAMINAL ALLOWANCE $3,200
PEEK POSTERIOR LUMBAR INTERBODY ALLOWANCE $3,200

" A

1 SCREWS/SET SCREW MROD x2 4,400
2 SCREWS/SET SCREW X 6iROD X 2 $6,300
3 SCREWS/SET SCREW X 8/ROD X 2 $8,200
4 SCREWS/SET SCREW X 10/ROD X 2 $10,050
5 SCREWS/SET SCREWX 12/ROD X 2 $11,850
ROD ALLOWANCE $300 SCREW ALLOWANCE $900 SET SCREW ALLOWANCE $50 (CAP $450]
GUIDE WIRES $100 IAMSHIDI NEEDLE ALLOWANCE $150

1 INTERBODY X 1/ SCREWS X 4 $6,000
2 INTERBODYX 2/ SCREWS X 8 $12,000
3 INTERBODY X 3/ SCREWS X 12 $18, 000
PEEK INTERBODY LUMBAR ALLOWANCE $4. 000 SCREW ALLOWANCE $500
*****STAND ALONE CAGE ALIF ALLOWANCE $5 600*****: "$3: n
”3;? 753%va "“jfiéish

1 INTERBODY x 1QCREWS x 4/ 1 LEVEL PLATE $8,500
2 INTERBODYX 2/ SCREWS X 6/ 2 LEVEL PLATE $13,500
3 INTERBODY X 3/ SCREWS X 8/ 3 LEVEL PLATE $18,500
PEEK INTERBODY LUMBAR ALLOWANCE $4,000 SCREW ALLOWANCE $500 PLATE ALLOWANCE $2.500

I
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1 ONE LEVEL DECOMPRESSION $4,000
2 Two LEVEL DECOMPRESSION $8,000
*
me Capitated Pricing for hardware is the
MAXIMUM amount that UGH Pain & Spine Wm
grouping or single implant. pay for a

"All implants that are implanted
on the patient and then removed
current (IN/OUT} will be paid at 75% off
capitated aliowance.

*’”‘See separate
Capltated Pricin g for Biologicals or other
experimental products, ifnot on scheduled
pricing see materials departme nt.

"“Revision spine surgery will fall under
capitated pricing schedule.
“*"Any hardware or bioiogical implant NOT
included on price schedule will be paid at 50% discounted
current list price with facility.

*****“AH ADVANCED technology must be approved for pricing prior to procedure being scheduled.

Please acknowledge the capitated pricing schedule for implants at: UGH
Pain & Spine Hospital. UGH szin &
Spine Hospital win not approve any charges above the reﬂected price. In the event that an implant price is
not reﬂected in the attached pricing schedule, you MUST obtain written authorization and approved price
from the hospital administrator. Please sign below acknowledging that you have received, reviewed and
agreed to the UGH Pain & Spine Capitated Pricing.

étp
Vendor Name:

Vendor Representatiye Name and

Date/Time: X/lo gﬂ/g
Signature: M
Hospital

Date/Time:
Represengve Nﬁme and Signature:
I‘D )
g
ﬂaw

Case Info

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TILLERY, DALE Track Judge’s New Case

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Document Filed Date

February 17, 2020

Case Filing Date

October 22, 2019

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