CAUSE NO. DC-20-00255
AMY WICKERSHAM AND PERRY IN THE DISTRICT COURT
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
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
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
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.
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
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.
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.
DISCOVERY CONTROL PLAN
Defendant Dr. Guttuso agrees t0 conduct discovery under Rule 190.4 0f the
Texas Rules 0f Civil Procedure (Level 3).
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
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
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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.
For further answer, if the same be necessary, Defendant afﬁrmatively pleads
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
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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
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
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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
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
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
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.
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
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.
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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
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.
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ALAN CAMPBELL & ASSOCIATES, PC
5900 S. Lake Forest Drive
McKinney, Texas 75070
(800) 793-7607 (Fax)
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
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