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FILED
DALLAS COUNTY
1/23/2015 10:47:14 AM
FELICIA PITRE
DISTRICT CLERK
Cause No. DC-13-02943
Ludivina Aguila, Individually and as § In The District Court of
Next Friend of Liliana Aguila, an §
Incapacitated Person §
§
v. § Dallas County, Texas
§
Medical Center of Lewisville a/k/a §
Columbia Medical Center Subsidiary, §
L.P. a/k/a Columbia Medical Center of §
Lewisville Subsidiary, L.P.; Shaney §
Marie Gulick; Jayaraman Ravindran, §
M.D.; Lynn Wang, M.D.; Nathan §
Griffin, as Personal Representative and §
Dependent Administrator of the Estate §
of Kaiss Aboubaker, M.D.; Manjeera §
Cherukuri, M.D.; Elizabeth Reynolds, §
M.D.; and Hubert Rogers, M.D. § 116th Judicial District
Defendant, Manjeera Cherukuri, M.D.’s
Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment
As To Defendant Dr. Manjeera Cherukuri
To The Honorable Judge of Said Court:
Comes Now, Manjeera Cherukuri, M.D., one of the Defendants in the above styled and
numbered cause, and files her Response to Plaintiffs’ No-Evidence Motion for Partial Summary
Judgment, and in support thereof would respectfully show unto the Court the following:
I.
NATURE OF THE CASE
This is a health care liability claim. Plaintiffs allege Dr. Cherukuri, among others, was
negligent in her care and treatment of Liliana Aguila. Plaintiffs filed their No-Evidence Motion
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 1
1221493.1 1066-1082
for Summary Judgment as to Dr. Cherukuri alleging that she has no-evidence to support various
“affirmative defenses” within her pleadings.
II.
Summary Judgment Evidence
The following evidence in support of this Response is contained in the Exhibit attached to
this Response. Defendant incorporates this Exhibit in her Response as set forth fully herein.
1. Exhibit A – Second Amended Answer of Defendants, Manjeera Cherukuri, M.D. and
Nathan Griffin, as Personal Representative and Dependent Administrator of the
Estate of Kaiss Aboubaker, M.D.
III.
ARGUMENT
1. PLAINTIFFS’ NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED FOR
FAILURE TO COMPLY WITH THE TEXAS RULES OF CIVIL PROCEDURE
Rule 166a, of the Texas Rules of Civil Procedure, governs motions for summary judgment
in Texas courts. See Tex. R. Civ. P. 166a. More specifically, Rule 166a(e) governs “No-Evidence”
motions for summary judgment. Tex. R. Civ. P. 166a(e). Rule 166a(e) provides, “[a]fter adequate
time for discovery, a party without presenting summary judgment evidence may move for
summary judgment on the ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R.
Civ. P. 166a(e) (emphasis added). As such, a “No-Evidence” motion for summary judgment
should be denied if it is directed at a defendant’s defense for which the defendant does not have
the burden of proof at trial. See id.
Additionally, a “No-Evidence” motion for summary judgment “must state the elements as
to which there is no evidence.” Id.; see also Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280,
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 2
1221493.1 1066-1082
283 (Tex. App.—Dallas 2013, pet. filed) (“The rule requires the movant in a no-evidence
summary judgment motion to specifically state which elements of the non-movant’s claims lack
supporting evidence.”). As stated within the Notes and Comments to Rule 166a, “[t]he motion
must be specific in challenging the evidentiary support for an element of a claim or defense;
paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an
opponent’s case.” Notes & Comments to Tex. R. Civ. Proc. 166a(i), 1997 Comment; see also
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (“We have further explained that
‘[t]he motion must be specific in challenging the evidentiary support for an element of a claim or
defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges
to an opponent’s case.’”).
Furthermore, as noted by the Dallas Court of Appeals, “[a] no-evidence motion that only
generally challenges the sufficiency of the non-movant’s case and fails to state the specific
elements that the movant contends lack supporting evidence is fundamentally defective and
cannot support summary judgment as a matter of law.” Jose Fuentes Co., Inc. v. Alfaro, 418
S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. filed). Similarly, “a no-evidence motion for
summary judgment may be directed at specific factual theories or allegations within a claim or
defense only if the challenge to the factual allegation is connected to a no-evidence challenge to a
specified element of a claim or defense.” Id. (emphasis original).
As discussed supra, Plaintiffs can only file a no-evidence motion for summary judgment
against Dr. Cherukuri on a claim or defense on which she will have the burden to prove at trial.
Plaintiffs’ No-Evidence Motion for Partial Summary Judgment against Dr. Cherukuri, however, is
conclusory. Specifically, Plaintiffs fail to state the defenses Dr. Cherukuri has the burden of
proving and the individual elements as to which there is no evidence. Instead, Plaintiffs generally
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 3
1221493.1 1066-1082
challenge the sufficiency of Dr. Cherukuri’s case. Therefore, Plaintiffs’ motion is fundamentally
defective and cannot support a no-evidence motion for summary judgment as a matter of law.
2. PLAINTIFFS’ NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT ERRONEOUSLY
DESCRIBES DEFENDANT’S DEFENSIVE LANGUAGE AS AFFIRMATIVE DEFENSES
Rule 94, of the Texas Rules of Civil Procedure, governs the application of affirmative
defenses in civil trials before Texas courts. See Tex. R. Civ. P. 94. Rule 94 provides:
In pleading to a preceding pleading, a party shall set forth affirmatively accord
and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration,
fraud, illegality, injury by fellow servant, laches, license, payment, release, res
judicata, statute of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense.
Id.
As a general rule, “[p]leading an affirmative defense permits introduction of evidence
which does not tend to rebut the factual propositions asserted in the plaintiff’s case, but which
seeks to establish an independent reason why the plaintiff should not recover.” Gorman v. Life
Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991). As stated by the Supreme Court of Texas,
“[i]n short, an affirmative defense is one of avoidance, rather than a defense in denial.” Id.
Additionally, “[w]hether a particular fact is a matter of avoidance or defense turns on the burden
of proof.” Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 12 (Tex. App.—Dallas 1983), writ refused
NRE (Sept. 14, 1983). “Moreover, a recognized principle in determining the burden of proof is
to place it on the party having the peculiar knowledge of the facts to be proved and, as a general
rule, it makes more sense to require a defending party to prove an affirmative act than to require
a plaintiff to prove the negative.” Kothmann v. Genesis Tax Loan Services, Inc., 288 S.W.3d
503, 511 (Tex. App.—Amarillo 2009), rev’d on other grounds, 339 S.W.3d 104 (Tex. 2011).
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 4
1221493.1 1066-1082
a. TEX. CIV. PRAC. & REM. CODE §§ 74.101, 74.104, 74.105, AND 74.106
DEFENSES ARE NOT AFFIRMATIVE DEFENSES AND ARE NOT PROPERLY
SUBJECT TO NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
As a preliminary matter, Plaintiffs fail to state which defenses Dr. Cherukuri has the
burden of proving under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice
and Remedies Code. Furthermore, Plaintiffs fail to state which specific elements Dr. Cherukuri
has failed to prove. As such, Plaintiffs’ No-Evidence Motion for Summary Judgment as to
defenses under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and
Remedies Code is facially deficient and Plaintiffs’ motion cannot support summary judgment as
a matter of law.
Furthermore, as described by authority utilized by Plaintiffs within their motion,
informed consent is a separate cause of action and not an affirmative defense. See, e.g., Boney v.
Mother Frances Hosp., 880 S.W.2d 140, 142 (Tex. App.—Tyler 1994), writ denied (Feb. 16,
1995) (“[I]nformed consent causes of action against health care providers are governed by the
Texas Medical Liability and Insurance Improvement Act. They are negligence actions.”); Ritter
v. Delaney, 790 S.W.2d 29, 30 (Tex. App.—San Antonio 1990), writ denied (Sept. 19, 1990) (“A
cause of action for the failure of a doctor to fully inform a patient of the risks of surgery is a
negligence cause of action.”).
Additionally, there are no affirmative defenses enumerated within Sections
74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code.
Instead, if a plaintiff raises an informed consent cause of action, then a physician can
raise a rebuttable presumption that there was informed consent if the enumerated
provisions of Sections 74.101 et. seq. were met. See Tex. Civ. Prac. & Rem. Code. §§
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 5
1221493.1 1066-1082
74.101 et. seq; see also Vaughan v. Nielson, 274 S.W.3d 732, 736 (Tex. App.—San
Antonio 2008).
Because informed consent is a separate cause of action and not an affirmative
defense, Dr. Cherukuri does not have a burden to prove any of the informed consent
elements under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice
and Remedies Code. Additionally, there are no additional affirmative defenses
enumerated within Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil
Practice and Remedies Code. Furthermore, Dr. Cherukuri never affirmatively asserted
any affirmative defenses under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas
Civil Practice and Remedies Code. Therefore, pursuant to Rule 166a, Plaintiffs have no
basis to file a no-evidence motion for summary judgment on any defenses under Sections
74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code.
Regardless of the fact Dr. Cherukuri does not have a burden of proof under the
enumerated subsections, Dr. Cherukuri will amend her pleadings to remove all references
to Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies
Code.
b. DR. CHERUKURI DID NOT RAISE THE AFFIRMATIVE DEFENSE OF
STATUTE OF LIMITATIONS UNDER TEX. CIV. PRAC. & REM. CODE §
74.251
Plaintiffs erroneously argue “there is no evidence that the statute of limitation
applies to Plaintiffs claims.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY
JUDGMENT AS TO MANJEERA CHERUKURI at 4. Conversely, itis well settled that Section
74.251 statute of limitations applies to all health care liability claims. See Tex. Civ. Prac.
& Rem. Code § 74.251.
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 6
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Furthermore, Section 74.251 is not an affirmative defense in and of itself.
Instead, it sets the statutory framework for when a plaintiff must bring a health care
liability claim. See id. A defendant may raise the affirmative defense of “statute of
limitations” under Section 74.251, but the party must “set forth affirmatively” the
affirmative defense of statute of limitations within it pleadings. See Tex. R. Civ. P. 94.
Dr. Cherukuri did not affirmatively raise the affirmative defense of statute of
limitations under Section 74.251 within her pleading or subsequently in any dispositive
motion. Instead, due to the fact that Plaintiffs raised a health care liability claim, Dr.
Cherukuri raised the general defense that the health care liability statute of limitations
applies to the case. Because Dr. Cherukuri did not raise the affirmative defense of statute
of limitations and she does not have a burden of proof under Section 74.251, Plaintiffs’
motion regarding defenses under Section 74.251 is fundamentally defective and cannot
support a no-evidence motion for summary judgment as a matter of law.
c. DR. CHERUKURI DID NOT RAISE AN AFFIRMATIVE DEFENSE UNDER
TEX. CIV. PRAC. & REM. CODE § 74.351
Plaintiffs further assert that “Defendant has no basis for its ‘affirmative defense’
of Section 74.351.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY
JUDGMENT AS TO MANJEERA CHERUKURI 5. Dr. Cherukuri did not affirmatively raise an
“‘affirmative defense’ of Section 74.351.” See Exhibit A. Section 74.351 is not an
affirmative defense in and of itself. See Tex. Civ. Prac. And Rem. Code § 74.351.
Additionally, no affirmative defenses are included within the subsections of Section
74.351. See id. Furthermore, Texas courts have been consistent in holding that the
dismissal provision of Section 74.351 is not an affirmative defense. See, e.g., Uduma v.
Wagner, 2014 WL 4259886, at *5 (Tex. App.—Houston [1st Dist.] Aug. 27, 2014, pet.
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 7
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filed) (“We note that although section 74.351(b)’s dismissal provision is not an
affirmative defense, Chapter 74’s damages cap is, and as such, it must be pleaded by the
defendant or else it is waived.”); Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 823
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (“[Appellee] also argues that [Appellant]
‘failed to preserve any error for review by not pleading the affirmative defense of Chapter
74.’ However, the authorities [Appellee] cited in her brief do not support her contention
that the dismissal provision in Section 74.351 is an affirmative defense that must be
pleaded by the defendant. Nor could we find any authority suggesting that [Appellant]
was required to file any additional pleadings to invoke its right to file a motion to dismiss
pursuant to Section 74.351.”).
Dr. Cherukuri did not attempt to raise an affirmative defense under Section
74.351. Instead, due to the fact that Plaintiffs raised a health care liability claim, Dr.
Cherukuri raised the general defense that Plaintiffs are bound by the expert report
requirements of Section 74.351. Because Dr. Cherukuri does not have a burden of proof
under Section 74.351, Plaintiffs’ motion regarding defenses under Section 74.351 is
fundamentally defective and cannot support a no-evidence motion for summary judgment
as a matter of law.
d. “NEW, INDEPENDENT, AND INTERVENING CAUSE,” “PRE-EXISTING
CONDITION,” “UNAVOIDABLE” EVENT, AND “BEYOND THE SCOPE OR
CONTROL” OF DEFENDANT ARE INFERENTIAL REBUTTAL DEFENSES AND
NOT AFFIRMATIVE DEFENSES
Plaintiffs assert Dr. Cherukuri raised “a group of related affirmative defenses
asserting that what happened to Plaintiff Lilian Aguila was essentially either her fault or
not the fault of Defendant.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 8
1221493.1 1066-1082
JUDGMENT AS TO MANJEERA CHERUKURI at 5. Plaintiffs, however, erroneously assert the
inferential rebuttal defenses Dr. Cherukuri raised are affirmative defenses.
The Supreme Court of Texas has been consistent in noting a defendant’s “theory
of new and independent cause is not an affirmative defense. . . .” Dallas Ry. & Terminal
Co. v. Bailey, 250 S.W.2d 379, 383 (1952); Dew v. Crown Derrick Erectors, Inc., 208
S.W.3d 448 (Tex. 2006); Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d
851 (Tex. 2009). Instead, as noted by the Supreme Court of Texas, the defense of new,
independent, and intervening cause “is one of a number of inferential rebuttal defenses
that ‘operates to rebut an essential element of the plaintiff’s case by proof of other facts.’”
Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 (Tex. 2006) (quoting Dillard
v. Tex. Elec. Coop., 157 S.W.3d 429, 430 (Tex. 2005)). Furthermore, the Texas Pattern
Jury Charges state the defense of “new and independent cause is in the nature of an
inferential rebuttal. . . .” TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES,
AND PRODUCTS PJC 50.4 (2012); see also TEXAS PATTERN JURY CHARGES--GENERAL
NEGLIGENCE & INTENTIONAL PERSONAL TORTS PJC 3.1 (2014).
Additionally, Texas courts construe the pre-existing condition defense as an
inferential rebuttal defense and not as an affirmative defense. See In re Nance, 143
S.W.3d 506, 512-13 (Tex. App.—Austin 2004, no pet.) (“Although the hospitals pleaded
preexisting condition as an alternative and affirmative defense, that defensive theory is in
the nature of an inferential rebuttal, not an ultimate issue of fact that alone has legal
significance.”); In re Pennington, 2008 WL 2780660, at *4 (Tex. App.—Fort Worth July
16, 2008, no pet.) (“Defensive claims that a plaintiff’s damages and injuries were caused
by pre-existing conditions do not involve the resolution of ultimate issues of fact that
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 9
1221493.1 1066-1082
have legal significance standing alone. Instead, these types of defensive assertions are in
the nature of inferential rebuttal claims. . . .”).
Similarly, the defenses of “unavoidable” event or an event “beyond the scope or
control” of the Defendant are both accepted inferential rebuttal defenses. See Banks v.
Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 233 S.W.3d 64, 70 (Tex. App.—
Dallas 2007, pet. denied); see also Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 432
(Tex. 2005). In Banks, the Dallas Court of Appeals opined that the purpose of inferential
rebuttal instructions for an unavoidable event or an event beyond the control of the
defendant “is to inform the jurors that they do not have to place blame on a party if the
evidence shows that conditions beyond the party’s control caused the injury in question
or that the conduct of some non-party caused it.” Banks v. Columbia Hosp. at Med. City
Dallas Subsidiary, L.P., 233 S.W.3d 64, 70 (Tex. App.—Dallas 2007, pet. denied) (citing
Dillard v. Texas Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 2005)). Furthermore, the
Texas Pattern Jury Charges state an “‘[u]navoidable accident’ is an inferential rebuttal
and should be submitted by instruction.” TEXAS PATTERN JURY CHARGES--GENERAL
NEGLIGENCE & INTENTIONAL PERSONAL TORTS PJC 3.4 (2014).
i. INFERENTIAL REBUTTAL DEFENSES ARE NOT SUBJECT TO NO-
EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
In addition to erroneously categorizing Dr. Cherukuri’s inferential rebuttal
defenses as affirmative defenses, Plaintiffs fail to state on which elements she has the
burden of proof under those defenses. Furthermore, Plaintiffs fail to state which specific
elements of these defenses Dr. Cherukuri has failed to prove. As such, Plaintiffs’ No-
Evidence Motion for Summary Judgment as to Dr. Cherukuri’s inferential rebuttal
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 10
1221493.1 1066-1082
defenses is facially deficient and Plaintiffs’ motion cannot support summary judgment as
a matter of law.
Furthermore, the Supreme Court of Texas has noted, “An inferential rebuttal defense
operates to rebut an essential element of the plaintiff’s case by proof of other facts.” Dillard v.
Texas Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005); see also Select Ins. Co. v. Boucher, 561
S.W.2d 474, 477 (Tex. 1978) (“Inferential rebuttal issues seek to disprove the existence of an
essential element submitted in another issue.”). Implicit in the court’s holdings is the notion that
inferential rebuttal defenses do not have distinctive elements that the defendant has to prove at
trial. Further support for this principle can be found in Rule 277, of the Texas Rules of Civil
Procedure, which provides, “[i]nferential rebuttal questions shall not be submitted in the charge.
The placing of the burden of proof may be accomplished by instructions rather than by inclusion
in the question.” Tex. R. Civ. P. 277. Because Dr. Cherukuri does not have the burden of
proving her inferential rebuttal defenses, Plaintiffs’ motion regarding those defenses is
fundamentally defective and cannot support a no-evidence motion for summary judgment as a
matter of law.
IV.
Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant Manjeera Cherukuri, M.D. prays
that the Court deny Plaintiffs’ No-Evidence Motion for Partial Summary Judgment and for any
other or further relief to which she may be entitled.
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 11
1221493.1 1066-1082
Respectfully submitted,
Burford & Ryburn, L.L.P.
By: /s/ Jennifer A. King
Robert F. Begert
State Bar No. 02046000
bbegert@brlaw.com
Jennifer A. King
State Bar No. 24032632
jking@brlaw.com
500 N. Akard Street, Suite 3100
Dallas, Texas 75201-6697
(214) 740-3100
(214) 740-2804– Telecopier for Robert F. Begert
Attorneys for Defendants Manjeera Cherukuri,
M.D. and Nathan Griffin, as Personal
Representative and Dependent Administrator
of the Estate of Kaiss Aboubaker, M.D.
Certificate Of Service
The undersigned hereby certifies that a true and correct copy of the foregoing
instrument was served upon all attorneys of record in accordance with the Texas Rules of
Civil Procedure on this 23rd day of January, 2015.
/s/ Jennifer A. King
Jennifer A. King
Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial
Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 12
1221493.1 1066-1082
Preview
FILED DALLAS COUNTY 1/23/2015 10:47:14 AM FELICIA PITRE DISTRICT CLERK Cause No. DC-13-02943 Ludivina Aguila, Individually and as § In The District Court of Next Friend of Liliana Aguila, an § Incapacitated Person § § v. § Dallas County, Texas § Medical Center of Lewisville a/k/a § Columbia Medical Center Subsidiary, § L.P. a/k/a Columbia Medical Center of § Lewisville Subsidiary, L.P.; Shaney § Marie Gulick; Jayaraman Ravindran, § M.D.; Lynn Wang, M.D.; Nathan § Griffin, as Personal Representative and § Dependent Administrator of the Estate § of Kaiss Aboubaker, M.D.; Manjeera § Cherukuri, M.D.; Elizabeth Reynolds, § M.D.; and Hubert Rogers, M.D. § 116th Judicial District Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri To The Honorable Judge of Said Court: Comes Now, Manjeera Cherukuri, M.D., one of the Defendants in the above styled and numbered cause, and files her Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment, and in support thereof would respectfully show unto the Court the following: I. NATURE OF THE CASE This is a health care liability claim. Plaintiffs allege Dr. Cherukuri, among others, was negligent in her care and treatment of Liliana Aguila. Plaintiffs filed their No-Evidence Motion Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 1 1221493.1 1066-1082 for Summary Judgment as to Dr. Cherukuri alleging that she has no-evidence to support various “affirmative defenses” within her pleadings. II. Summary Judgment Evidence The following evidence in support of this Response is contained in the Exhibit attached to this Response. Defendant incorporates this Exhibit in her Response as set forth fully herein. 1. Exhibit A – Second Amended Answer of Defendants, Manjeera Cherukuri, M.D. and Nathan Griffin, as Personal Representative and Dependent Administrator of the Estate of Kaiss Aboubaker, M.D. III. ARGUMENT 1. PLAINTIFFS’ NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED FOR FAILURE TO COMPLY WITH THE TEXAS RULES OF CIVIL PROCEDURE Rule 166a, of the Texas Rules of Civil Procedure, governs motions for summary judgment in Texas courts. See Tex. R. Civ. P. 166a. More specifically, Rule 166a(e) governs “No-Evidence” motions for summary judgment. Tex. R. Civ. P. 166a(e). Rule 166a(e) provides, “[a]fter adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P. 166a(e) (emphasis added). As such, a “No-Evidence” motion for summary judgment should be denied if it is directed at a defendant’s defense for which the defendant does not have the burden of proof at trial. See id. Additionally, a “No-Evidence” motion for summary judgment “must state the elements as to which there is no evidence.” Id.; see also Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 2 1221493.1 1066-1082 283 (Tex. App.—Dallas 2013, pet. filed) (“The rule requires the movant in a no-evidence summary judgment motion to specifically state which elements of the non-movant’s claims lack supporting evidence.”). As stated within the Notes and Comments to Rule 166a, “[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Notes & Comments to Tex. R. Civ. Proc. 166a(i), 1997 Comment; see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (“We have further explained that ‘[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.’”). Furthermore, as noted by the Dallas Court of Appeals, “[a] no-evidence motion that only generally challenges the sufficiency of the non-movant’s case and fails to state the specific elements that the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law.” Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. filed). Similarly, “a no-evidence motion for summary judgment may be directed at specific factual theories or allegations within a claim or defense only if the challenge to the factual allegation is connected to a no-evidence challenge to a specified element of a claim or defense.” Id. (emphasis original). As discussed supra, Plaintiffs can only file a no-evidence motion for summary judgment against Dr. Cherukuri on a claim or defense on which she will have the burden to prove at trial. Plaintiffs’ No-Evidence Motion for Partial Summary Judgment against Dr. Cherukuri, however, is conclusory. Specifically, Plaintiffs fail to state the defenses Dr. Cherukuri has the burden of proving and the individual elements as to which there is no evidence. Instead, Plaintiffs generally Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 3 1221493.1 1066-1082 challenge the sufficiency of Dr. Cherukuri’s case. Therefore, Plaintiffs’ motion is fundamentally defective and cannot support a no-evidence motion for summary judgment as a matter of law. 2. PLAINTIFFS’ NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT ERRONEOUSLY DESCRIBES DEFENDANT’S DEFENSIVE LANGUAGE AS AFFIRMATIVE DEFENSES Rule 94, of the Texas Rules of Civil Procedure, governs the application of affirmative defenses in civil trials before Texas courts. See Tex. R. Civ. P. 94. Rule 94 provides: In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Id. As a general rule, “[p]leading an affirmative defense permits introduction of evidence which does not tend to rebut the factual propositions asserted in the plaintiff’s case, but which seeks to establish an independent reason why the plaintiff should not recover.” Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991). As stated by the Supreme Court of Texas, “[i]n short, an affirmative defense is one of avoidance, rather than a defense in denial.” Id. Additionally, “[w]hether a particular fact is a matter of avoidance or defense turns on the burden of proof.” Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 12 (Tex. App.—Dallas 1983), writ refused NRE (Sept. 14, 1983). “Moreover, a recognized principle in determining the burden of proof is to place it on the party having the peculiar knowledge of the facts to be proved and, as a general rule, it makes more sense to require a defending party to prove an affirmative act than to require a plaintiff to prove the negative.” Kothmann v. Genesis Tax Loan Services, Inc., 288 S.W.3d 503, 511 (Tex. App.—Amarillo 2009), rev’d on other grounds, 339 S.W.3d 104 (Tex. 2011). Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 4 1221493.1 1066-1082 a. TEX. CIV. PRAC. & REM. CODE §§ 74.101, 74.104, 74.105, AND 74.106 DEFENSES ARE NOT AFFIRMATIVE DEFENSES AND ARE NOT PROPERLY SUBJECT TO NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT As a preliminary matter, Plaintiffs fail to state which defenses Dr. Cherukuri has the burden of proving under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Furthermore, Plaintiffs fail to state which specific elements Dr. Cherukuri has failed to prove. As such, Plaintiffs’ No-Evidence Motion for Summary Judgment as to defenses under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code is facially deficient and Plaintiffs’ motion cannot support summary judgment as a matter of law. Furthermore, as described by authority utilized by Plaintiffs within their motion, informed consent is a separate cause of action and not an affirmative defense. See, e.g., Boney v. Mother Frances Hosp., 880 S.W.2d 140, 142 (Tex. App.—Tyler 1994), writ denied (Feb. 16, 1995) (“[I]nformed consent causes of action against health care providers are governed by the Texas Medical Liability and Insurance Improvement Act. They are negligence actions.”); Ritter v. Delaney, 790 S.W.2d 29, 30 (Tex. App.—San Antonio 1990), writ denied (Sept. 19, 1990) (“A cause of action for the failure of a doctor to fully inform a patient of the risks of surgery is a negligence cause of action.”). Additionally, there are no affirmative defenses enumerated within Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Instead, if a plaintiff raises an informed consent cause of action, then a physician can raise a rebuttable presumption that there was informed consent if the enumerated provisions of Sections 74.101 et. seq. were met. See Tex. Civ. Prac. & Rem. Code. §§ Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 5 1221493.1 1066-1082 74.101 et. seq; see also Vaughan v. Nielson, 274 S.W.3d 732, 736 (Tex. App.—San Antonio 2008). Because informed consent is a separate cause of action and not an affirmative defense, Dr. Cherukuri does not have a burden to prove any of the informed consent elements under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Additionally, there are no additional affirmative defenses enumerated within Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Furthermore, Dr. Cherukuri never affirmatively asserted any affirmative defenses under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Therefore, pursuant to Rule 166a, Plaintiffs have no basis to file a no-evidence motion for summary judgment on any defenses under Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. Regardless of the fact Dr. Cherukuri does not have a burden of proof under the enumerated subsections, Dr. Cherukuri will amend her pleadings to remove all references to Sections 74.101, 74.104, 74.105, and 74.106 of the Texas Civil Practice and Remedies Code. b. DR. CHERUKURI DID NOT RAISE THE AFFIRMATIVE DEFENSE OF STATUTE OF LIMITATIONS UNDER TEX. CIV. PRAC. & REM. CODE § 74.251 Plaintiffs erroneously argue “there is no evidence that the statute of limitation applies to Plaintiffs claims.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO MANJEERA CHERUKURI at 4. Conversely, itis well settled that Section 74.251 statute of limitations applies to all health care liability claims. See Tex. Civ. Prac. & Rem. Code § 74.251. Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 6 1221493.1 1066-1082 Furthermore, Section 74.251 is not an affirmative defense in and of itself. Instead, it sets the statutory framework for when a plaintiff must bring a health care liability claim. See id. A defendant may raise the affirmative defense of “statute of limitations” under Section 74.251, but the party must “set forth affirmatively” the affirmative defense of statute of limitations within it pleadings. See Tex. R. Civ. P. 94. Dr. Cherukuri did not affirmatively raise the affirmative defense of statute of limitations under Section 74.251 within her pleading or subsequently in any dispositive motion. Instead, due to the fact that Plaintiffs raised a health care liability claim, Dr. Cherukuri raised the general defense that the health care liability statute of limitations applies to the case. Because Dr. Cherukuri did not raise the affirmative defense of statute of limitations and she does not have a burden of proof under Section 74.251, Plaintiffs’ motion regarding defenses under Section 74.251 is fundamentally defective and cannot support a no-evidence motion for summary judgment as a matter of law. c. DR. CHERUKURI DID NOT RAISE AN AFFIRMATIVE DEFENSE UNDER TEX. CIV. PRAC. & REM. CODE § 74.351 Plaintiffs further assert that “Defendant has no basis for its ‘affirmative defense’ of Section 74.351.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO MANJEERA CHERUKURI 5. Dr. Cherukuri did not affirmatively raise an “‘affirmative defense’ of Section 74.351.” See Exhibit A. Section 74.351 is not an affirmative defense in and of itself. See Tex. Civ. Prac. And Rem. Code § 74.351. Additionally, no affirmative defenses are included within the subsections of Section 74.351. See id. Furthermore, Texas courts have been consistent in holding that the dismissal provision of Section 74.351 is not an affirmative defense. See, e.g., Uduma v. Wagner, 2014 WL 4259886, at *5 (Tex. App.—Houston [1st Dist.] Aug. 27, 2014, pet. Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 7 1221493.1 1066-1082 filed) (“We note that although section 74.351(b)’s dismissal provision is not an affirmative defense, Chapter 74’s damages cap is, and as such, it must be pleaded by the defendant or else it is waived.”); Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 823 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“[Appellee] also argues that [Appellant] ‘failed to preserve any error for review by not pleading the affirmative defense of Chapter 74.’ However, the authorities [Appellee] cited in her brief do not support her contention that the dismissal provision in Section 74.351 is an affirmative defense that must be pleaded by the defendant. Nor could we find any authority suggesting that [Appellant] was required to file any additional pleadings to invoke its right to file a motion to dismiss pursuant to Section 74.351.”). Dr. Cherukuri did not attempt to raise an affirmative defense under Section 74.351. Instead, due to the fact that Plaintiffs raised a health care liability claim, Dr. Cherukuri raised the general defense that Plaintiffs are bound by the expert report requirements of Section 74.351. Because Dr. Cherukuri does not have a burden of proof under Section 74.351, Plaintiffs’ motion regarding defenses under Section 74.351 is fundamentally defective and cannot support a no-evidence motion for summary judgment as a matter of law. d. “NEW, INDEPENDENT, AND INTERVENING CAUSE,” “PRE-EXISTING CONDITION,” “UNAVOIDABLE” EVENT, AND “BEYOND THE SCOPE OR CONTROL” OF DEFENDANT ARE INFERENTIAL REBUTTAL DEFENSES AND NOT AFFIRMATIVE DEFENSES Plaintiffs assert Dr. Cherukuri raised “a group of related affirmative defenses asserting that what happened to Plaintiff Lilian Aguila was essentially either her fault or not the fault of Defendant.” PLAINTIFFS’ NO-EVIDENCE MOTION FOR PARTIAL SUMMARY Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 8 1221493.1 1066-1082 JUDGMENT AS TO MANJEERA CHERUKURI at 5. Plaintiffs, however, erroneously assert the inferential rebuttal defenses Dr. Cherukuri raised are affirmative defenses. The Supreme Court of Texas has been consistent in noting a defendant’s “theory of new and independent cause is not an affirmative defense. . . .” Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379, 383 (1952); Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448 (Tex. 2006); Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009). Instead, as noted by the Supreme Court of Texas, the defense of new, independent, and intervening cause “is one of a number of inferential rebuttal defenses that ‘operates to rebut an essential element of the plaintiff’s case by proof of other facts.’” Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 (Tex. 2006) (quoting Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 430 (Tex. 2005)). Furthermore, the Texas Pattern Jury Charges state the defense of “new and independent cause is in the nature of an inferential rebuttal. . . .” TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES, AND PRODUCTS PJC 50.4 (2012); see also TEXAS PATTERN JURY CHARGES--GENERAL NEGLIGENCE & INTENTIONAL PERSONAL TORTS PJC 3.1 (2014). Additionally, Texas courts construe the pre-existing condition defense as an inferential rebuttal defense and not as an affirmative defense. See In re Nance, 143 S.W.3d 506, 512-13 (Tex. App.—Austin 2004, no pet.) (“Although the hospitals pleaded preexisting condition as an alternative and affirmative defense, that defensive theory is in the nature of an inferential rebuttal, not an ultimate issue of fact that alone has legal significance.”); In re Pennington, 2008 WL 2780660, at *4 (Tex. App.—Fort Worth July 16, 2008, no pet.) (“Defensive claims that a plaintiff’s damages and injuries were caused by pre-existing conditions do not involve the resolution of ultimate issues of fact that Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 9 1221493.1 1066-1082 have legal significance standing alone. Instead, these types of defensive assertions are in the nature of inferential rebuttal claims. . . .”). Similarly, the defenses of “unavoidable” event or an event “beyond the scope or control” of the Defendant are both accepted inferential rebuttal defenses. See Banks v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 233 S.W.3d 64, 70 (Tex. App.— Dallas 2007, pet. denied); see also Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 2005). In Banks, the Dallas Court of Appeals opined that the purpose of inferential rebuttal instructions for an unavoidable event or an event beyond the control of the defendant “is to inform the jurors that they do not have to place blame on a party if the evidence shows that conditions beyond the party’s control caused the injury in question or that the conduct of some non-party caused it.” Banks v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 233 S.W.3d 64, 70 (Tex. App.—Dallas 2007, pet. denied) (citing Dillard v. Texas Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 2005)). Furthermore, the Texas Pattern Jury Charges state an “‘[u]navoidable accident’ is an inferential rebuttal and should be submitted by instruction.” TEXAS PATTERN JURY CHARGES--GENERAL NEGLIGENCE & INTENTIONAL PERSONAL TORTS PJC 3.4 (2014). i. INFERENTIAL REBUTTAL DEFENSES ARE NOT SUBJECT TO NO- EVIDENCE MOTIONS FOR SUMMARY JUDGMENT In addition to erroneously categorizing Dr. Cherukuri’s inferential rebuttal defenses as affirmative defenses, Plaintiffs fail to state on which elements she has the burden of proof under those defenses. Furthermore, Plaintiffs fail to state which specific elements of these defenses Dr. Cherukuri has failed to prove. As such, Plaintiffs’ No- Evidence Motion for Summary Judgment as to Dr. Cherukuri’s inferential rebuttal Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 10 1221493.1 1066-1082 defenses is facially deficient and Plaintiffs’ motion cannot support summary judgment as a matter of law. Furthermore, the Supreme Court of Texas has noted, “An inferential rebuttal defense operates to rebut an essential element of the plaintiff’s case by proof of other facts.” Dillard v. Texas Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005); see also Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978) (“Inferential rebuttal issues seek to disprove the existence of an essential element submitted in another issue.”). Implicit in the court’s holdings is the notion that inferential rebuttal defenses do not have distinctive elements that the defendant has to prove at trial. Further support for this principle can be found in Rule 277, of the Texas Rules of Civil Procedure, which provides, “[i]nferential rebuttal questions shall not be submitted in the charge. The placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question.” Tex. R. Civ. P. 277. Because Dr. Cherukuri does not have the burden of proving her inferential rebuttal defenses, Plaintiffs’ motion regarding those defenses is fundamentally defective and cannot support a no-evidence motion for summary judgment as a matter of law. IV. Prayer WHEREFORE, PREMISES CONSIDERED, Defendant Manjeera Cherukuri, M.D. prays that the Court deny Plaintiffs’ No-Evidence Motion for Partial Summary Judgment and for any other or further relief to which she may be entitled. Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 11 1221493.1 1066-1082 Respectfully submitted, Burford & Ryburn, L.L.P. By: /s/ Jennifer A. King Robert F. Begert State Bar No. 02046000 bbegert@brlaw.com Jennifer A. King State Bar No. 24032632 jking@brlaw.com 500 N. Akard Street, Suite 3100 Dallas, Texas 75201-6697 (214) 740-3100 (214) 740-2804– Telecopier for Robert F. Begert Attorneys for Defendants Manjeera Cherukuri, M.D. and Nathan Griffin, as Personal Representative and Dependent Administrator of the Estate of Kaiss Aboubaker, M.D. Certificate Of Service The undersigned hereby certifies that a true and correct copy of the foregoing instrument was served upon all attorneys of record in accordance with the Texas Rules of Civil Procedure on this 23rd day of January, 2015. /s/ Jennifer A. King Jennifer A. King Defendant, Manjeera Cherukuri, M.D.’s Response to Plaintiffs’ No-Evidence Motion for Partial Summary Judgment As To Defendant Dr. Manjeera Cherukuri Page 12 1221493.1 1066-1082