Motion for Plea in Abatement in AMY WICKERSHAMet al vs. BENJAMIN BRASHEAR, MDet al| Trellis.Law

On January 06, 2020 a DEFENDANT-ORIGINAL ANSWER-PAUL GUTTUSO, M.D. - PLEA IN ABATEMENT was filed involving a dispute between Wickersham, Amy, Wickersham, Perry, and Anguiano Rd Ld, Nichole, Brashear, Benjamin, Md, Brashear Family Medical, P.A., Chaudhry, Usman, Md, Del Toro, Gustavo N., Do, Dr. Garry Guce & Associates, Pllc, Fabro Jr, Delano Soriano, Do, Guce, Garry, Md, Guttuso, Paul A., Md, Health Texas Provider, Health Texas Provider Network, Parish, Stephen Royce, Md, Rockwall Regional Hospital Llc, Scheurich, Daniel, Md, Schoen Rd Ld, Mary, Sound Inpatient Physicians Inc,, Sunflower Park Healthcare, Texas Health Physicians Group, Texas Health Presbyterian Kaufman, Tijerina, Erik, Wellmed Medical Group, P.A., Wright, Christina D, for MEDICAL MALPRACTICE in the District Court of Dallas County.

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FILED
2/7/2020 4:11PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
LoaidiGrove DEPUTY

CAUSE NO. DC-20-00255

AMY WICKERSHAM AND PERRY IN THE DISTRICT COURT
WICKERSHAM
Plaintiffs

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 PAUL GUTTUSO, M.D.’S MOTION TO TRANSFER
VENUE, PLEA IN ABATEMENT AND ORIGINAL ANSWER SUBJECT
THERETO
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Paul Guttuso, M.D. (“Defendant or Dr. Guttuso”), Defendant

in the above entitled and numbered cause and ﬁles this his Motion to Transfer Venue,

Plea in Abatement and Original Answer Subj ect Thereto and in support thereof

would respectfully show this Honorable Court the following:

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 1
I.

MOTION TO TRANSFER VENUE

Pursuant to Texas Rule 0f Civil Procedure 86, Defendant Dr. Guttuso 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 Dr. Guttuso.

Pleading further and in the alternative, as alleged, the foundation of

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 to 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 of

Privilege days. The Texas Supreme Court held in GM Acceptance Corp. vs.

WICKERSHAM — GUTTUSO 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 the healthcare at issue

in this case was provided. Further, Plaintiffs saw ﬁt to serve Dr. Guttuso in

Kaufman County. Plaintiffs’ cause 0f action herein accrued in Kaufman County,

Texas. The health care at issue was rendered in Kaufman County. Accordingly,

Kaufman County is the proper county 0f venue and not Dallas County.

II.

Defendant speciﬁcally denies the venue facts pled in Plaintiffs’ First

Amended Petition. T0 the extent that any of the Plaintiffs’ allegations could be

construed as venue facts, they are denied.

WICKERSHAM — GUTTUSO 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 on Dr. Guttuso because it Will take him away from his

responsibilities delivering healthcare in Kaufman County. T0 d0 so would require

Dr. Guttuso t0 alter his work schedule t0 participate in the trial. Defendant would

further show that the balance 0f all the parties’ interests in this matter weighs in

favor of the suit being transferred to 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 t0 the facts

made the basis of 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 to the care at Texas Health Kaufman Will almost certainly be kept in the

ordinary course 0f business in Kaufman County. Plaintiffs reside in Kaufman

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 4
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.

GENERAL DENIAL AND JURY DEMAND
Defendant Dr. Guttuso denies each and every, all and singular, the

allegations contained in Plaintiffs’ First Amended Petition and demands strict

proof thereof by a preponderance of evidence before a jury.

VI.

DISCOVERY CONTROL PLAN

Defendant Dr. Guttuso agrees t0 conduct discovery under Rule 190.4 0f the

Texas Rules 0f Civil Procedure (Level 3).

VII.

REQUEST FOR DISCLOSURE
Pursuant to Texas Rule 0f Civil Procedure 194, Dr. Guttuso requests that

Plaintiffs disclose, Within 30 days of the service 0f this request, the information 0r

materials described in Rule 194.2.

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 5
VIII.

SPECIAL EXCEPTIONS

a. Defendant objects and specially excepts t0 Paragraphs 55, 71 and 75 0f

Plaintiffs’ Amended Petition. Defendant would show that the allegations 0f

negligence against Dr. Guttuso included in Plaintiffs’ Amended Petition, as a matter

0f 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 or 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 Dr. Guttuso 0n January 6, 2020. Defendant received Plaintiffs’ Pre-Suit

Notice (dated December 12, 2019) 0n December 17, 2019. Because Plaintiffs failed

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 6
t0 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.

The allegations specially excepted to above fail t0 give Defendant fair notice

ofthe claims being made against him. As such, Defendant is unable to 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 — GUTTUSO MTV AND ANSWER PAGE 7
Defendant, or by intervening acts 0f others Which were the sole proximate cause, 0r

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 0f 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 0r causation attributable

to the settling Defendant herein, and Defendant hereby makes known to the other

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 8
parties and to the Court that he Will avail himself 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 0r otherwise jointly and severally liable t0 Plaintiffs, then Defendant

makes known t0 the Court and the other Defendants herein that he Will avail himself

of 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 0r 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 t0 this cause, they were

“health care provider(s)” as that term is deﬁned by TeX. CiV. Prac. & Rem. Code

§74.001(12).

j. Defendant asserts that Plaintiffs’ claims against him constitute a

“healthcare liability claim” as that term is deﬁned by TeX. CiV. Prac. & Rem. Code

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 9
§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 him may not be based solely

0n evidence 0f an alleged bad result to Amy Wickersham and assert their right to 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 his 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 t0 Plaintiffs, Which is herein

expressly denied, Defendant gives notice that he will request that the Court order

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 10
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 his 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 — GUTTUSO MTV AND ANSWER PAGE 11
4. An award 0f punitive damages is limited by Texas Civil Practice

& Remedies Code, §41.008.

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 Dr. Guttuso 0n January

6, 2020. Defendant received Plaintiffs’ Pre—Suit Notice (dated December 12, 2019)

0n 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 60-day abatement, running from the date the order is signed granting said

abatement.

By not providing the statutorily mandated notice, the Plaintiffs have failed

to comply with the provisions 0f Sections 74.05 1 and 74.052 0f the Code.

Pursuant t0 Chapter 74 0f 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 of 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 — GUTTUSO MTV AND ANSWER PAGE 12
v. Southwest Texas Methodist Hospital, 811 S.W.2d 141, 144 (TexApp. - San

Antonio, 1991, writ denied).

WHEREFORE, PREMISES CONSIDERED, Defendant Dr. Guttuso prays

that his Motion t0 Transfer Venue be granted and that this case be transferred t0 a

District Court in Kaufman County; that his Plea in Abatement be granted; that his

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 or in equity, t0 Which Defendant may

be justly entitled.

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 13
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 N0. 240922 14

Attorneyfor Paul Guttuso, MD.

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 14
CERTIFICATE OF SERVICE

The undersigned 0n this the 7th and
certiﬁes that day 0f February 2020, a true
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
Cathy F. Bailey
Amanda F. Hobbs
STEED DUNNILL REYNOLDS
BAILEY STEPHENSON LLP
17 17 Main Street, Suite 2950
Dallas, Texas 75201
(469) 698-4200 Telephone
(469) 698—4201 Facsimile

Attorneysfor Benjamin Brashear, MD.
And Brashear Family Medical, P.A.

Alan L. Campbell

WICKERSHAM — GUTTUSO MTV AND ANSWER PAGE 15

Case Info

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FRAZIER, VERETTA Track Judge’s New Case

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Document Filed Date

February 07, 2020

Case Filing Date

January 06, 2020

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Parties

ANGUIANO RD LD, NICHOLE Defendant
ATWOOD, MISSY K Attorney for the Defendant
BAILEY, CATHY F Attorney for the Defendant
BAILEY, TY Attorney for the Defendant
BOCELL, KIMBERLY E Attorney for the Defendant
BRASHEAR, BENJAMIN, MD Defendant
BRASHEAR FAMILY MEDICAL, P.A. Defendant
CAMPBELL, ALAN L Attorney for the Defendant
CHAUDHRY, USMAN, MD Defendant
DAVIS, STEVEN RAY Attorney for the Plaintiff
DEL TORO, GUSTAVO N., DO Defendant
DR. GARRY GUCE & ASSOCIATES, PLLC Defendant
FABRO JR, DELANO SORIANO, DO Defendant
GUCE, GARRY, MD Defendant
GUTTUSO, PAUL A., MD Defendant
HEALTH TEXAS PROVIDER Defendant
HEALTH TEXAS PROVIDER NETWORK Defendant
HURST, MICHAEL L Attorney for the Defendant
JACKSON, RAY Attorney for the Defendant
JACKSON, RAYSHUN Attorney for the Defendant
KING, JENNIFER A Attorney for the Defendant
PARISH, STEPHEN ROYCE, MD Defendant
QUATTLEBAUM, MICHELE Attorney for the Defendant
ROCKWALL REGIONAL HOSPITAL LLC Defendant
SCHEURICH, DANIEL, MD Defendant
SCHOEN RD LD, MARY Defendant
SOUND INPATIENT PHYSICIANS INC, Defendant
SUNFLOWER PARK HEALTHCARE Defendant
TEXAS HEALTH PHYSICIANS GROUP Defendant
TEXAS HEALTH PRESBYTERIAN KAUFMAN Defendant
THIEBAUD, STAN A Attorney for the Defendant
TIJERINA, ERIK Defendant
WELLMED MEDICAL GROUP, P.A. Defendant
WICKERSHAM, AMY Plaintiff
WICKERSHAM, PERRY Plaintiff
WRIGHT, CHRISTINA D Defendant
Amanda Hobbs Attorneys for Defendants
John Davis Attorney
Laura Quinones Attorneys for Defendants
R. Byrd Attorneys for Defendants
Elizabeth Jones Attorneys for Defendants
Ty Bailey Attorneys for Defendants
Emily Owen Attorneys for Defendants
Kaitlin Carrillo Attorneys for Defendants
Kaitlin Cswaykus Attorneys for Defendants
Alexis Henke Attorneys for Defendants

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