East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors

Opinion

ACCEPTED 12-15-00014-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 6/3/2015 3:52:12 PM CATHY LUSK CLERK

ORAL ARGUMENT REQUESTED

No. 12-15-00014-CV FILED IN 12th COURT OF APPEALS

_______________________________________________

TYLER, TEXAS 6/3/2015 3:52:12 PM COURT OF APPEALS CATHY S. LUSK Clerk

for the

TWELFTH DISTRICT OF TEXAS

Tyler, Texas

_______________________________________________

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D, Minors Appellee.

_______________________________________________

Appeal from Cause No. 13-0984-A TH 7 District Court, Smith County, Texas Honorable Kerry L. Russell, Presiding Judge

_______________________________________________

APPELLANT’S BRIEF ON THE MERITS

_______________________________________________

Russell G. Thornton THIEBAUD REMINGTON THORNTON BAILEY LLP Two Energy Square 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206 (214) 954-2200 – Telephone (214) 754-0999 – Telecopier

ATTORNEYS FOR DEFENDANT – APPELLANT East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

June 3, 2015

LIST OF PARTIES AND COUNSEL

In order that members of the Court may determine disqualification or recusal,

Appellant certifies that the following is a complete list of the names and addresses of

parties to this appeal and their counsel:

APPELLEE: Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Minors

COUNSEL FOR APPELLEE: Mr. Ryan Krebs, M.D., J.D.

THE LAW OFFICE OF RYAN KREBS 805 W. 10th Street, Suite 300 Austin, Texas 78701

APPELLANT: East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

COUNSEL FOR APPELLANT: Russell G. Thornton (Appeal)

Stan Thiebaud (Trial) R. Gregg Byrd (Trial) THIEBAUD REMINGTON THORNTON BAILEY LLP 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206

i

TABLE OF CONTENTS

LIST OF PARTIES AND COUNSEL ................................................................................ i

INDEX OF AUTHORITIES .............................................................................................. iv

STATEMENT OF THE CASE ........................................................................................... 2

REQUEST FOR ORAL ARGUMENT ............................................................................... 4

ISSUES PRESENTED ........................................................................................................ 5

I. Judgment in Favor of Appellee Should be Reversed Because There is Legally Insufficient Evidence of Proximate Cause Against ETMC

II. Judgment in Favor of Appellee Should be Reversed Because There is Legally Insufficient Evidence of the Applicable Standard of Care and Breach by ETMC

STATEMENT OF FACTS .................................................................................................. 6

SUMMARY OF ARGUMENT ......................................................................................... 16

ARGUMENT..................................................................................................................... 18

I. Judgment in Favor of Appellee Should be Reversed Because There is Legally Insufficient Evidence of Proximate Cause Against ETMC ...... 20

II. Judgment in Favor of Appellee Should be Reversed Because There is Legally Insufficient Evidence of the Applicable Standard of Care and Breach by ETMC ................................................................................ 26

CONCLUSION ................................................................................................................. 45

PRAYER ........................................................................................................................... 48

CERTIFICATE OF COMPLIANCE ................................................................................ 49

CERTIFICATE OF SERVICE .......................................................................................... 50

ii

APPENDIX ...................................................................................................... INDEX TAB

A. December 23, 2014 Final Judgment

B. November 24, 2014 Charge of Court completed by jury

C. July 28, 2014 Order Granting Defendants’ Moore and Spurgers’ Motions for Summary Judgment

D. Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012)

E. Wal-Mart Stores, Inc. v. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 (Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem. op.)

F. Gonzales v. Willis, 995 S.W.2d 729 (Tex. App.—San Antonio 1999, no pet.), overruled in part on o.g., Hoffman-LaRoche v. Zeltwanger, 155 S.W.3d 438 (Tex. 2004)

G. The Methodist Hospital v. German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet denied)

iii

INDEX OF AUTHORITIES

UNITED STATES DISTRICT COURT CASES:

Allen v. Wal-Mart Stores Texas, LLC, 2015 U.S. Dist. LEXIS 56425 (S.D. Tex.)(Apr. 29, 2015) ................................................ 21

Goodarzi v. Hartzog, 2013 U.S. Dist. LEXIS 85727 (S.D. Tex.)(Jun. 14, 2013) ................................................ 20

Hughes v. Yodle, Inc., 2015 U.S. Dist. LEXIS 63011 (W.D. Tex.)(May 14, 2015) .............................................. 21

Udoewa v. Plus 4 Credit Union, 2009 U.S. Dist. LEXIS 54964 (S.D. Tex.)(June 29, 2009) ................................................ 20

TEXAS SUPREME COURT CASES:

AutoZone, Inc. v. Reyes¸ 272 S.W.3d 588 (Tex. 2008) ............................................................................................ 19

Burrow v. Acre, 997 S.W.2d 229 (Tex. 1999) ............................................................................................ 29

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .............................................................. 18, 19, 31, 34, 35, 44

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) ................................................................................ 29, 30, 33

Coastal Transportation Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) ............................................................................................ 29

Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) .............................................................. 28, 29, 33, 34, 37, 38

Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194 (Tex. 2011) ............................................................................................ 18

Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007) ............................................................................................ 26

iv

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) .............................................................. 28, 29, 33, 34, 37, 38

Marathon Oil Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ................................................................................ 19, 30, 36

Tanner v. Nationwide Mutual Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009) ............................................................................................ 18

Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012) ................................................................................ 21, 24, 25

TEXAS COURTS OF APPEALS CASES:

Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433 (Tex. App.—Amarillo, 1996, writ denied) .................... 28, 37, 38, 41, 42

Chopra v. Hawryluk, 892 S.W.2d 229 (Tex. App.—El Paso, 1995, writ denied) ............................ 27, 28, 37, 38

Clark v. PFPP Limited Partnership, 455 S.W.3d 283, 287 (Tex. App.—Dallas 2015, no pet.) ................................................ 21

Cobb v. Dallas Fort Worth Medical Center, 48 S.W.3d 820 (Tex. App.—Waco 2001, no pet.) ........................................................... 26

Crown Pine Timber 1, L.P. v. Durrett, 2012 Tex. App. LEXIS 3658 (Tex. App.—Tyler)(May 9, 2012)(no pet.)(mem. op.) 18, 44

Dangerfield v. Ormsby, 264 S.W.3d 904 (Tex. App.—Fort Worth 2008, no pet.) .................................... 28, 36, 38

Denton Regional Medical Center v. Lacroix, 947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) .................... 23, 24

Gonzales v. Sid Peterson Memorial Hospital, 2000 Tex. App. LEXIS 3137 (Tex. App.—San Antonio)(May 17, 2000)(pet. denied)(mem. op.) ............................................................................................................. 27

Gonzales v. Willis, 995 S.W.2d 729 (Tex. App.—San Antonio 1999, no pet.), overruled in part on o.g., Hoffman-LaRoche v. Zeltwanger, 155 S.W.3d 438 (Tex. 2004) ................................ 20, 25

v

Host Marriott Corp. v. Meadows, 2001 Tex. App. LEXIS 4409 (Tex. App.—Dallas)(Jun. 20, 2001)(pet. denied)(not designated for publication) ......................................................................................... 20, 25

Jones v. Miller, 966 S.W.2d 851 (Tex. App—Houston [1st Dist.] 1998, no pet.) ...................................... 26

Kingwood Pines Hospital, LLC v. Gomez, 362 S.W.3d 740 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ............................ 26, 27

LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127 (Tex. App.—Amarillo 1997, writ denied) ............................................. 20

Latimer v. Memorial Hermann Hospital System, 2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no pet.)(mem. op.) ..................................................................................................... 24, 25, 26

Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014)(pet. filed)(mem. op.) .................................................................................................................................... 21, 27

Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446 (Tex. App.—Tyler 1996, no pet.) .................................................... 39, 40

Morrell v. Finke, 184 S.W.3d 257 (Tex. App.—Fort Worth 2005, pet. denied) .......................................... 26

Nichols v. Nacogdoches Hospital District, 96 S.W.3d 582 (Tex. App.—Tyler 2002, no pet.) ...................................................... 26, 27

Ortegon v. Benavides, 2008 Tex. App. LEXIS 1576 (Tex. App.—San Antonio)(Mar. 5, 2008)(pet. denied)(mem. op.). ............................................................................................................................. 26, 27

Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.—Dallas 2005, pet. denied) ......................... 28, 37, 38, 43, 44

Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex. App.—Tyler 2002, pet. denied) ..................................... 27, 28, 37, 38

The Methodist Hospital v. German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ........................ 21, 25

vi

Vaughn v. Drennon, 372 S.W.3d 726 (Tex. App.—Tyler 2012, no pet.) .......................................................... 18

Wal-Mart Stores, Inc. v. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 (Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem. op.) .................................................................................................................. 20, 21, 24, 25

CASE LAW FROM OTHER JURISDICTIONS:

Haverly v. Kaytec, Inc., 738 A.2d 86 (Vt. 1999) ..................................................................................................... 22

Hogan v. Forsyth Country Club Co., 340 S.E.2d 116 (N.C. App. 1986) .................................................................................... 22

Louis Marsch, Inc. v. Pekin Ins. Co., 491 N.E.2d 432 (Ill. App. 1985) ....................................................................................... 22

Mulhern v. City of Scottsdale, 799 P.2d 15 (Ariz App. 1990) .......................................................................................... 22

Rogala v. District of Columbia, 161 F.3d 44 (D.C. Cir.1998) ............................................................................................. 22

Schoff v. Combined Ins. Co. of America, 604 N.W.2d 43 (Iowa 1999) ............................................................................................. 22

Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala. 1999) ............................................................................................... 22

Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. App. 1979) ....................................................................................... 22

Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314 (S.D. Ala. 2002) .............................................................................. 22

Tindall v. Enderle, 320 N.E.2d 764 (Ind. App. 1974) ..................................................................................... 22

vii

No. 12-15-00014-CV

___________________________________________________

COURT OF APPEALS for the

TWELFTH DISTRICT OF TEXAS

Tyler, Texas

___________________________________________________

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Minors, Appellee.

___________________________________________________

Appeal from Cause No. 13-0984-A 7th Judicial District Court, Smith County, Texas Honorable Kerry L. Russell, Presiding Judge

___________________________________________________

TO THE TWELFTH COURT OF APPEALS:

Appellant East Texas Medical Center d/b/a East Texas Medical Center Emergency

Medical Services, Defendant in Cause No. 13-0984-A in the 7th Judicial District Court of

Smith County, Texas, Honorable Kerry L. Russell presiding, respectfully submits its

Brief on the Merits. Appellee is Jody Delaune, Individually and as Personal

Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D.,

D.D. and DA.D., Plaintiff in the district court.

2

STATEMENT OF THE CASE

Nature of the case: Appellee asserts a health care liability claim against Appellant East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services (“ETMC”)(See, CR 1-9; 1 CR 5-12)(Please note that the Clerk’s Record submitted to the Tyler Court of Appeals is submitted [1] with consecutive bates numbers in the lower right hand corner of each document ranging from 1 – 1095, and [2] in five volumes. Hereinafter references to the 5 volumes of the Clerk’s Record will [1] cite “CR” followed by the proper 1 – 1095 Bates number and [2] also cite the specific volume of the Clerk’s record, followed by “CR,” followed by the page number of that specific volume of the Clerk’s Record. For example, “1 CR 1” refers to page 1 of Volume 1 of the Clerk’s Record. References to the 22 volumes of the Reporter’s Record will be made in the same manner, but with the designation “RR” rather than “CR”). This claim arises out of the death of Ms. Crystal Delaune (“Ms. Delaune”) when she jumped out of an ETMC ambulance on August 19, 2012 while being transported to the hospital during an emotional crisis (CR 5; 1 CR 9; 3 RR 26, lines 22-24). Ms. Linda Moore and Ms. Lindsay Spurgers were the ETMC employees in the ambulance with Ms. Delaune at that time. The issue tried to the jury was ETMC’s direct liability to Appellee for Ms. Delaune’s death. Appellee’s only claim against ETMC was that it failed to train Ms. Moore and Ms. Spurgers on the use of restraint in handling patients like Ms. Delaune (See, 2 RR 206, line 23 – 207, line 14; 3 RR 174, lines 10-11; 6 RR 173, lines 11-18; 179, lines 6-13; 182, lines 3-7)

Course of proceedings: Appellee filed his Original Petition on April 15, 2013 (CR 1; 1 CR 5). Appellee asserted negligence claims against ETMC, Ms. Moore and Ms. Spurgers (CR 6; 1 CR 10). During the pretrial proceedings, Defendants Moore and Spurgers moved for summary judgment on the claims against them on both a “traditional” and a “no evidence” basis, wherein they asserted that they were not negligent, as alleged (CR 36-298; 1 CR 40-

3

250; 2 CR 5-23). On July 29, 2014, the trial court entered an order granting Ms. Moore and Ms. Spurgers’ motion for summary judgment and dismissing Appellee’s claims against them with prejudice (CR 365-66; 2 CR 119-120). On November 18, 2014, the trial court called the case to trial. The parties announced ready for trial and a jury was impaneled (See, 2 RR 10-11, 188-192). At the conclusion of the evidence, the trial court submitted the case to the jury in the Charge of the Court (See, CR 373-87; 2 CR 127-41; 6 RR 167-71). On November 24, 2014, the Jury returned a verdict in favor of Appellee and against ETMC (CR 373-87; 2 CR 127-41; 6 RR 225-28). On November 26, 2014, Appellee filed his Motion for Judgment on the Verdict (CR 388-471; 2 CR 142-225). On December 2, 2014, Appellee filed his First Amended Motion for Judgment on the Verdict (CR 472-556; 2 CR 226-54). On December 16, 2014, ETMC filed its Response to Appellee’s First Amended Motion for Judgment on the Verdict and Motion for Judgment Non Obstante Veredicto (CR 557-737; 3 CR 61-241).

Trial court’s disposition: On December 23, 2014, the trial entered court its Final Judgment granting Appellee judgment on the jury verdict (CR 738-41; 3 CR 242-45).

Appeal: Appellant timely filed its Notice of Appeal on January 21, 2015 (CR 1078-1085; 5 CR 82-89).

4

REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 39 of the TEXAS RULES OF APPELLATE PROCEDURE, Appellant

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical

Services requests that this matter be submitted for oral argument to allow the Court to

more completely understand the facts and legal issues presented by this appeal.

5

ISSUES PRESENTED

I. JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF PROXIMATE CAUSE AGAINST ETMC, AND;

II. JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF THE APPLICABLE STANDARD OF CARE AND BREACH BY ETMC.

6

STATEMENT OF FACTS

I. THE KEY CONTENTIONS, TRIAL COURT RULING AND EVIDENCE AT TRIAL:

A. Appellee’s Contention and Evidence:

1. Appellee’s Contention:

Appellee contended that Ms. Delaune should have been restrained while being

transported in ETMC’s ambulance on August 19, 2012 (2 RR 212; 6 RR 179).

Ms. Moore and Ms. Spurgers (hereinafter also referred to collectively as “the EMS

Providers”) were the ETMC employees in the ETMC ambulance at that time (See, CR 6;

1 CR 10). Appellee claimed Ms. Delaune was not restrained solely because ETMC failed

to train Ms. Moore and Ms. Spurgers on the use of restraint (See, 6 RR 51, lines 10-16).

The trial focused on ETMC’s training as related to the use of restraint outlined in

its Behavioral Disorders Policy (“the Behavioral Policy”)(12 RR 6 [Pl. Ex. 9]).

Specifically, Appellee represented to the trial court and jury that the “narrow” issue was

whether or not ETMC had trained the EMS Providers on aspects of the Behavioral Policy

that involved the use of chemical and physical restraint in handling patients like

Ms. Delaune (See, 3 RR 173, lines 20-23—“THE COURT: Sounds like your expert was

saying they didn’t train them very well. MR. KREBS: With regard to restraints. With

regard to restraints only”; 3 RR 174, lines 10-11—“Ours [criticism] is narrowly directed

at teaching restraint is what it’s all about [sic].” See also, 2 RR 206, line 23 – 207,

line 14; 6 RR 173, lines 11-18; 179, lines 6-13; 182, lines 3-7).

7

This alleged “failure to train” was Appellee’s only complaint against ETMC.

Appellee represented to the trial court and jury that he had no complaint about the

Behavioral Policy itself (See, 5 RR 109, line 23- 110, line 2; 6 RR 126, lines 8-21).

At trial, Appellee produced no evidence regarding the standard of care applicable

to the EMS Providers when they cared for Ms. Delaune. Appellee also produced no

evidence of any breach of the applicable standard of care by the EMS Providers.

The Charge of the Court (“the Charge”) submitted at the close of evidence only

asked whether or not ETMC’s negligence, if any, was a proximate cause of Appellee’s

alleged injuries (CR 376; 2 CR 130). With respect to ETMC’s alleged negligence, the

Charge defined negligence and ordinary care only in regards to ETMC’s conduct with

respect to the formulation, implementation and enforcement of its policies and procedures

(CR 374-75; 2 CR 128-29). The Charge did not submit the EMS Providers’ conduct, and

it did not define negligence as to ETMC in terms of any action or failure to act by the

EMS Providers (CR 373-87; 2 CR 127-41). Appellee neither requested that the EMS

Providers’ conduct be submitted for determination, nor did he object to the failure of the

Charge to submit these matters for determination (See, 6 RR 150-159).

2. Appellee’s Evidence:

Appellee relied on his retained expert, Dr. Marvin Wayne, to support his failure to

train claim. Dr. Wayne offered the following testimony on ETMC’s alleged failure to

train:

• With respect to the Behavioral Policy, the Behavioral Policy was reasonable and he was not critical of the Behavioral Policy itself (3 RR 28 line 10-25; 3 RR 90, lines 8-17);

8

• “My concern is that – and my feeling where the failure of the standard of care occurred is that if the EMS providers only knew to talk-down, they had not been taught [other techniques]” (3 RR 36, lines 6-9)(emphasis added); • “The paperwork says: This is what we teach. The knowledge based by the two EMS providers – not one but two – say, ‘That’s not what we knew’” (3 RR 43, lines 2-5), and; • He agreed ETMC’s education and training program tracked the requirements of the national registry for EMS provider certification (3 RR 82, lines 11-19).

According to Appellee’s expert, ETMC was negligent only “if the EMS providers

only knew to talk-down.” Appellee’s expert concluded the EMS Providers’ only knew to

“talk-down” and did not know about restraint because (1) they did not restrain

Ms. Delaune and (2) they did not mention restraint in their depositions (3 RR 60, lines

13-18; 3 RR 74, lines 14-20). Dr. Wayne offered no other facts and nothing more

specific in support of his opinion that ETMC failed to train the EMS Providers on the use

of restraint.

3. Significant Pretrial Ruling by Trial Court:

Appellee named the EMS Providers as defendants in his original petition (CR 1; 1

CR 5). Appellee alleged the EMS Providers were negligent because they failed to

restrain Ms. Delaune (CR 6; 1 CR 10).

The EMS Providers moved for summary judgment on Appellee’s claims against

them on both a “traditional” and a “no evidence” basis (CR 36-298; 1 CR 40-250; 2 CR

5-23). Their request for dismissal was based on the fact that the evidence conclusively

established they did not violate the applicable standard of care in their care and treatment

of Ms. Delaune and there was no evidence they violated the standard of care in their care

9

and treatment of Ms. Delaune. Appellee responded to this motion (CR 299-335; 2 CR

53-89).

On July 29, 2014, the trial court entered an order granting the EMS Providers’

motion for summary judgment (CR 365-66; 2 CR 119-120). Specifically, the trial court

ordered that all claims against Ms. Moore and Ms. Spurgers “are dismissed with

prejudice” (CR 365; 2 CR 119). Thus, prior to trial, the EMS Providers’ conduct in

caring for Ms. Delaune was determined to not be negligent as a matter of law. Stated

another way, the trial court determined that as a matter of law the EMS Providers did not

depart from any applicable standard of care in their care and treatment of Ms. Delaune.

B. Evidence of ETMC’s Training and the EMS Providers’ Knowledge Beyond “Talk-Down”:

Evidence about ETMC’s training on restraint and the EMS Providers’ knowledge

about the utilization of restraint when speaking with a patient was no longer effective was

presented through the testimony of Ms. Moore, Ms. Spurgers, Dr. Paul Lehrfeld

(ETMC’s expert), Dr. William Moore (ETMC’s Medical Director), and Dr. Wayne

(Appellee’s expert), as well as documents showing ETMC had trained Ms. Moore and

Ms. Spurgers on the use of restraint. In review of this testimony, the Court should keep

in mind that at the time of Ms. Delaune’s death Ms. Moore was the ETMC employee

with Ms. Delaune in the back of the ambulance. Ms. Spurgers was in the front of the

ambulance driving. (See, 4 RR 43, lines 14-18; 44, lines 6-14).

10

The significant testimony and documentary evidence offered by each witness

about ETMC’s training and Ms. Moore and Ms. Spurgers’ knowledge of restraint is set

forth below:

1. Ms. Moore:

• The Behavioral Policy discusses use of restraints (2 RR 242, lines 5-7; 3 RR 96, lines 2-5);

• In paramedic school, she was taught about the use of chemical and physical restraints (3 RR 129, lines 7-21; 3 RR 145, line 25 – 146, line 16);

• Since about 1996, she has been certified as a paramedic by the State of Texas and the United States’ national paramedic registry (3 RR 133, line 23 – 134, line 1; 3 RR 129, line 22 – 130, line 6);

• To obtain each certification, she had to pass testing (3 RR 131, line 6 – 132, line 18);

• To maintain each certification, every two and four years, she has to take book classes, hands-on classes and pass testing (3 RR 134, lines 2-20);

• To obtain and maintain each certification, she had/has to demonstrate her competency regarding the use of restraints through testing (3 RR 133, lines 5-15);

• Ms. Moore has continuously and successfully recertified in Texas and nationally since 1996 (3 RR 134, lines 22-25);

• Before working at ETMC or going to paramedic school, Ms. Moore worked at Rusk State Hospital (“Rusk”), a psychiatric facility, for 13 years (3 RR 135, line 25 – 136, line 5; 3 RR 137, lines 2-5);

• Ms. Moore employed restraint techniques on a daily basis in her management of patients during the 13 years she worked at Rusk (3 RR 139, lines 5-12);

• During her 13 years at Rusk, Ms. Moore was trained in the use of chemical and physical restraints (3 RR 140, lines 19- 24);

• During Ms. Moore’s 13 years at Rusk she also taught the use of chemical and physical restraints (3 RR 141, line 22 – 142, line 10);

• The restraint concepts Ms. Moore used, learned and was taught at Rusk were the same techniques she was taught and

11

learned in paramedic school (3 RR 145, lines 4-11; 3 RR 150, lines 16-20);

• Since 1996, Ms. Moore has been with ETMC (3 RR 152, lines 18-25);

• When Ms. Moore was oriented at ETMC after being hired, she was trained on the use of restraints (3 RR 156, line 19 – 157, line 10);

• Ms. Moore’s orientation at ETMC was consistent with what she had been taught and what she had learned about the use of restraint at Rusk and in paramedic school (3 RR 156, line 19 – 157, line 10);

• Use of restraints have also been covered since 1996 in continuing education provided through ETMC (3 RR 157, lines 11-19; 3 RR 158, line 10 – 160, line 13; 3 RR 161, line 8 – 162, line 8; 3 RR 162, line 24 – 163, line 1; 3 RR 163, lines 14-20);

• Ms. Moore also received education and training through “Ninth Brain” at ETMC (3 RR 164, lines 12-18);

• Her Ninth Brain documentation shows education and training on the use of restraints while she has been at ETMC (3 RR 164, line 21 – 167 , line 6);

• While at ETMC, Ms. Moore has been tested annually on its protocols (3 RR 167, line 19 – 168, line 5);

• Ms. Moore has passed all of these tests (3 RR 168, line 11-

12);

• A copy of the Behavioral Policy is kept in ETMC’s ambulances (3 RR 168, lines 20-24);

• ETMC’s reviews of Ms. Moore document that she “has a good understanding of the policies and procedures we use” (3 RR 174, lines 17-24);

• In response to a direct question from Appellee’s counsel, Ms. Moore discussed what she was “taught or trained” regarding the use of soft restraints mentioned in the Behavioral Policy (2 RR 242, line 15 – 243, line 5; 2 RR 244, lines 5-8);

• In response to a direct question from Appellee’s counsel, Ms. Moore also testified that during Ms. Delaune’s ambulance transport, she could have put Ms. Delaune in restraints if she felt that was necessary (3 RR 120, lines 21- 24);

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• Ms. Moore testified that she believed her care of Ms. Delaune was consistent with the Behavioral Policy (3 RR 202, lines 13-16);

• Ms. Moore’s ETMC personnel file documents that she properly followed ETMC protocols (14 RR 40, 43, 48, 54, 59 [Pl. Ex. 20]), and;

• Ms. Moore provided documentation of training in 2010 and on April 17, 2012 that covered behavioral crises and restraint (3 RR 166, line 3 – 167, line 6; 13 RR 16 [Pl. Ex. 15]; 20 RR 9, 15 [Def. Ex. 31]).

2. Ms. Spurgers:

• Ms. Spurgers was the ambulance driver on the occasion in question (4 RR 43, lines 14-18);

• Ms. Spurgers went to paramedic school (4 RR 44, lines 18-

20);

• Ms. Spurgers was trained in paramedic school and at ETMC about the use of restraints (4 RR 44, line 22 – 45, line 1; 4 RR 52, lines 7-15; 4 RR 60, lines 17-22; 4 RR 61, line 12 – 62, line 1; 4 RR 64, lines 12-20);

• Ms. Spurgers has been employed by ETMC since 2003 (4 RR 6, lines 5-15);

• Ms. Spurgers had been taught about the use of restraints by ETMC prior to the incident involved here (4 RR 15, lines 2- 19; 4 RR 38, line 25 – 39, line 10);

• Ms. Spurgers’ ETMC personnel file documents that she properly followed ETMC protocols (13 RR 56, 61, 66, 71, 82 [Pl. Ex. 19]), and;

• Ms. Spurgers provided documentation of training on October 4, 2010 and April 17, 2012 covering behavioral crises and restraint (4 RR 61, line 12 – 62, line 1; 13 RR 26 [Pl. Ex. 16]; 20 RR 19, 25 [Def. Ex. 32]).

3. Dr. Lehrfeld:

• ETMC provided Ms. Moore and Ms. Spurgers continuing education during their time with it that covered chemical restraint and physical restraint (5 RR 62, line 4 – page 63, line 7; 64, line 18 – page 65, line 10; 68, line 18 – 69, line 13);

• The education and training of providers like Ms. Moore and Ms. Spurgers is universal and follows a standardized national

13

curriculum, in that it is focused on national guidelines set by the national registry (5 RR 60, line 5 – 62, line 25), and;

• ETMC’s education and training on the use of restraints is in line with the applicable standardized national curriculum (5 RR 62, lines 1-7; 65, lines 11-19; 68, line 18 – page 69, line 13).

4. Dr. Moore:

• He is an emergency room physician and the medical director for the ETMC Emergency Medical Services (6 RR 54, line 22- 55, line 4);

• He has been the medical director of ETMC Emergency Medical Services since the fall of 1989 (6 RR 55, lines 5-7);

• He is personally involved in the education and training of the EMS personnel (6 RR 66 lines 4-25);

• He has also served as the medical director of college-based paramedic training programs in Tyler and Waco (6 RR 72, lines 6-23);

• There is a standardized national curriculum that is followed in the teaching of paramedics in paramedic school (6 RR 88, lines 8-14);

• During their paramedic school training, Ms. Moore and Ms. Spurgers would have been trained consistent with the standardized national curriculum established by the national registry and certification requirements (6 RR 89, line 21 – 90, line 1);

• At ETMC Ms. Moore and Ms. Spurgers would be educated and trained through orientation, continuing education, Ninth Brain education, and testing on protocols (6 RR 93, lines 2-4; 6 RR 94, line 20 – 95, line 18; 6 RR 112, lines 9-22);

• The training Ms. Moore and Ms. Spurgers received while they have been at ETMC is consistent with the standardized national curriculum established by the national registry and certification requirement s (6 RR 90, lines 2-6; 6 RR 92, lines 7-16; 6 RR 96, line 1-9; 6 RR 113, lines 10-17);

• Ms. Moore and Ms. Spurgers had to pass written examinations to obtain and maintain their national and Texas certification as paramedics (6 RR 90, line 7 – 91, line 2);

• This testing would cover the use of restraint (6 RR 91, lines 7-11);

• ETMC’s education and training covers the use of restraints (6 RR 96, lines 10-20);

14

• ETMC provided documentation showing live training on “Behavioral Crises and Restraint” in April-May 2012, within four months of this incident (20 RR 30 [Def. Ex. 37]);

• Ms. Moore and Ms. Spurgers attended this training (3 RR 166-67; 4 RR 61; 20 RR 15 [Def. Ex. 31]; 20 RR 25 [Def. Ex. 32]);

• Dr. Moore gave a Power Point program on behavioral emergencies that covered the use of restraints six months before this incident (6 RR 97, line 20 – 98, line 13; 6 RR 105, lines 11-23; 6 RR 106, line 4 – 107, line 17);

• The concluding five slides of Dr. Moore’s 2012 Power Point presentation specifically addressed and covered the use of restraints in behavioral emergencies like Ms. Delaune’s (20 RR 81-85 [Def. Ex. 38]);

• ETMC’s education and training on the use of restraint is consistent with the national registry’s position on the use of restraint (6 RR Exhibit 105, line 24 – 106, line 3), and;

• ETMC does not teach the talk-down technique only (6 RR 102, line 24 – 103, line 7).

5. Dr. Wayne: In addition to the testimony set forth above, Dr. Wayne:

• Agreed that after their completion of paramedic school, Ms. Moore and Ms. Spurgers would have been trained on the use of restraints (3 RR 51, line 2 – 3 RR 52, line 9; 3 RR 54, lines 9-15);

• Agreed that a standardized national curriculum exists in the education and training of providers like Ms. Moore and Ms. Spurgers (3 RR 52, line 11-23; 3 RR 53, lines 4-13);

• Agreed that this standardized national curriculum covers the use of chemical and physical restraints (3 RR 53, lines 18- 22), and;

• Agreed that ETMC’s education and training program tracks what is required by the national registry for provider certification (3 RR 82, lines 11-19).

II. THE VERDICT, POST-TRIAL MOTIONS, FINAL JUDGMENT AND NOTICE OF APPEAL:

On November 24, 2014, the Jury returned a verdict in favor of Appellee and

against ETMC (CR 373-387; 2 CR 127-141).

15

On November 24, 2014, Appellee filed his Motion for Judgment on the Verdict

(CR 388-471; 2 CR 142-225). On December 2, 2014, Appellee filed his First Amended

Motion for Judgment on the Verdict (CR 472-500; 2 CR 226-254).

On December 16, 2014, ETMC filed its Response to Appellee’s First Amended

Motion for Judgment on the Verdict and Motion for Judgment Non Obstante Veredicto

(“JNOV”) (CR 557-737; 3 CR 61-241). In its response and motion for JNOV, ETMC

submitted that the trial court should enter judgment in favor of ETMC notwithstanding

the verdict because (1) there was no evidence of causation against ETMC because neither

Ms. Moore nor Ms. Spurgers was negligent on the occasion in question and (2) Appellee

presented no evidence or legally insufficient evidence that ETMC failed to train either

Ms. Moore or Ms. Spurgers.

On December 23, 2014, the trial court entered Final Judgment in favor of Appellee

based on the jury verdict (CR 738-41; 3 CR 242-45).

On January 21, 2015, ETMC timely filed its Notice of Appeal (CR 1078-1085;

5 CR 82-89).

16

SUMMARY OF ARGUMENT

This is solely a “failure to train” case. At trial Appellee contended the narrow

issue was ETMC had failed to teach the EMS Providers on the use of restraints in

handling behavioral emergencies like Ms. Delaune’s (See, 3 RR 174, lines 10-11).

Appellee presented no other complaint about ETMC, and presented no evidence that

would support any other basis of liability against ETMC.

Under Texas law, an employer’s alleged failure to train an employee can be a

proximate cause of a claimant’s alleged injuries only if the employee “committed an

actionable tort” on the occasion in question. If the employee did not commit an

actionable tort, an employer’s failure to train cannot be a proximate cause of a claimant’s

alleged injuries as a matter of law. Because it was determined prior to trial that the EMS

Providers were not negligent, as a matter of law any failure to train by ETMC could not

be a proximate cause of Appellee’s alleged injuries. For this reason, Appellee has legally

insufficient evidence of causation and the trial court erred in failing to grant ETMC’s

JNOV.

There is also legally insufficient evidence that ETMC failed to train Ms. Moore

and Ms. Spurgers on the use of restraint. First, the testimony of Appellee’s expert,

Dr. Marvin Wayne, constitutes no evidence of the applicable standard of care or a failure

to train by ETMC because he offered nothing more than conclusory, ipse dixit statements

in support of this vital fact. Second, the evidence conclusively establishes the EMS

Providers knew about the use of restraint and ETMC trained them on the use of restraint.

Third, Dr. Wayne’s opinion involves improper inference-stacking. For these reasons,

17

Appellee has legally insufficient evidence of the standard of care and breach by ETMC

and the trial court erred in failing to grant ETMC’s JNOV.

Accordingly, the Tyler Court of Appeals should reverse the trial court’s

December 23, 2014 Final Judgment in favor of Appellee and against ETMC and render a

take nothing judgment in favor of ETMC and against Appellee.

18

ARGUMENT

STANDARD OF REVIEW

The denial of EMTC’s JNOV and ETMC’s contention that there is legally

insufficient evidence to support the verdict and judgment against it are both reviewed

under the same standard. See, Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,

215 (Tex. 2011); Tanner v. Nationwide Mutual Fire Ins. Co., 289 S.W.3d 828, 830

(Tex. 2009); Vaughn v. Drennon, 372 S.W.3d 726, 731 (Tex. App.—Tyler 2012, no pet.).

The applicable standard of review is the “legal sufficiency standard.” See, id.

Evidence is legally insufficient under this standard of review when one or more of

the following circumstances exist:

1. The record discloses a complete absence of a vital fact; 2. The court is barred by rules of law or rules of evidence from giving weight to the only evidence offered to prove a vital fact;

3. The evidence offered to prove a vital fact is no more than a mere scintilla, or;

4. The evidence establishes conclusively the opposite of a vital fact.

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Crown Pine Timber 1, L.P. v.

Durrett, 2012 Tex. App. LEXIS 3658 *8-9 (Tex. App.—Tyler)(May 9, 2012)(no

pet.)(mem. op.). As more fully explained below in Paragraphs I and II, one or more of

these circumstances exist in this case.

While the general rule associated with a legal sufficiency standard of review is to

view the evidence in the light favorable to the verdict and to disregard contrary evidence,

unless reasonable jurors could not, exceptions exist where appellate courts should

consider contrary evidence. See, City of Keller, 168 S.W.3d at 810-11.

19

First and foremost, when an appellate court reviews the evidence in a legal

sufficiency challenge, the evidence “cannot be considered in isolated bits and pieces

divorced from its surroundings; it must be viewed in its proper context with the other

evidence.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008)(citing City of

Keller, 168 S.W.3d at 827). Evidence also cannot be taken out of context in a way that

makes it seem to support a verdict when in fact it never did. City of Keller, 168 S.W.3d

at 812. Further, inference stacking cannot create or provide legally sufficient evidence.

See, Marathon Oil Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).

Second, a number of circumstances exist that require the Court to consider

evidence beyond that which supports the verdict. These circumstances are because

(1) ETMC asserts Appellee’s evidence of standard of care and breach is incompetent,

(2) Appellee relies on circumstantial evidence under which the circumstances are equally

consistent with either of two facts, (3) Appellee relies on Ms. Moore and Ms. Spurgers’

conscious knowledge of restraint at the time they cared for Ms. Delaune, and (4) ETMC

asserts the evidence conclusively establishes that ETMC did train the EMS Providers on

the use of restraint. See, City of Keller, 168 S.W.3d at 812-17.

I. JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF PROXIMATE CAUSE AGAINST ETMC:

A. Essential Elements of a Failure to Train Case:

Appellee’s sole claim against ETMC is that it failed to train the EMS Providers on

the use of restraint. The essential elements of Appellee’s failure to train claim against

ETMC are:

20

• ETMC owed a legal duty to train its employees; • ETMC breached that duty, and; • ETMC’s breach proximately caused the Appellee’s injuries.

See, Wal-Mart Stores, Inc. v. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 *16

(Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem. op.)(citing LaBella v.

Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App.—Amarillo 1997, writ denied));

Gonzales v. Willis, 995 S.W.2d 729, 739-40 (Tex. App.—San Antonio 1999, no pet.),

overruled in part on o.g., Hoffman-LaRoche v. Zeltwanger, 155 S.W.3d 438 (Tex. 2004).

B. Proximate Cause Requires Actionable Tort By Employee:

In order for an employer’s failure to train to be a proximate cause of a claimant’s

injury, its employee must have committed an actionable tort on the occasion in question.

See, Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 at *16 (citing Gonzales v. Willis,

995 S.W.2d at 739-40). See also, Goodarzi v. Hartzog, 2013 U.S. Dist. LEXIS 85727

*50-51 (S.D. Tex.)(Jun. 14, 2013)(applying Texas law); Udoewa v. Plus 4 Credit Union,

2009 U.S. Dist. LEXIS 54964 *22 (S.D. Tex.)(Jun. 29, 2009)(applying Texas law); Host

Marriott Corp. v. Meadows, 2001 Tex. App. LEXIS 4409 *4-6 (Tex. App.—Dallas)(Jun.

20, 2001)(pet. denied)(not designated for publication). This means that in order for

Appellee to prevail on his failure to train claim against ETMC, he had to prove the EMS

Providers committed an actionable tort when caring for Ms. Delaune.

Because recovery is predicated on the employee’s commission of an actionable

tort, claims for negligent hiring, supervision, training and retention are referred to as

“dependent torts.” See, Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 at *16. That is to

say, the existence of Appellee’s failure to train claim against ETMC is “dependent” on

21

the EMS Providers’ commission of an actionable tort when they were caring for

Ms. Delaune. See, The Methodist Hospital v. German, 369 S.W.3d 333, 350 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied)(“…German could not show he was harmed

by the hospital’s failure to train unless it resulted in both the nurses’ failure to conform to

the proper standard of care and his injury”). See also, Aguilera-Sanchez, 2003 Tex. App.

LEXIS 4846 at *16.

While the Texas Supreme Court has not specifically addressed whether the

employee’s commission of an actionable tort is necessary in the dependent tort of

negligent training, it has addressed this requirement in the dependent torts of negligent

hiring and negligent supervision. In Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012), the

Texas Supreme Court held that “some harmful or negligent conduct of an employee” is

required to recover under the dependent torts of negligent hiring and negligent

supervision. Id. at 246.

There is no reason to expect the Texas Supreme Court would not impose this same

actionable tort requirement when presented with a negligent training claim. In fact Texas

state and federal courts uniformly interpret Wansey as requiring the employee commit an

actionable tort in all dependent torts, including negligent training. See, Hughes v. Yodle,

Inc., 2015 U.S. Dist. LEXIS 63011 *16 (W.D. Tex.)(May 14, 2015); Allen v. Wal-Mart

Stores Texas, LLC, 2015 U.S. Dist. LEXIS 56425 *17 (S.D. Tex.)(Apr. 29, 2015); Clark v.

PFPP Limited Partnership, 455 S.W.3d 283, 287 (Tex. App.—Dallas 2015, no pet.);

Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 *23-24 n. 7 (Tex.

App.—Dallas)(Nov. 19, 2014)(pet. filed)(mem. op.). Courts in other jurisdictions that

22

have addressed this issue in the dependent torts of negligent hiring, supervision, training

and retention have also held that the employee must have committed a tort on the

occasion in question. See, Rogala v. District of Columbia, 161 F.3d 44, 56 n.9 (D.C. Cir.

1998)(applying D.C. law); Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d

1314, 1319-20 (S.D. Ala. 2002)(applying Alabama law); Schoff v. Combined Ins. Co. of

America, 604 N.W.2d 43, 53 (Iowa 1999); Stevenson v. Precision Standard, Inc., 762

So.2d 820, 824-25 (Ala. 1999); Haverly v. Kaytec, Inc., 738 A.2d 86, 91 (Vt. 1999);

Mulhern v. City of Scottsdale, 799 P.2d 15, 18 (Ariz App. 1990); Hogan v. Forsyth

Country Club Co., 340 S.E.2d116, 124 (N.C. App. 1986); Louis Marsch, Inc. v. Pekin

Ins. Co., 491 N.E.2d 432, 437 (Ill. App. 1985); Texas Skaggs, Inc. v. Joannides,

372 So.2d 985, 987 (Fla. App. 1979); Tindall v. Enderle, 320 N.E.2d 764, 767-68 (Ind.

App. 1974).

The actionable tort requirement in a negligent training claim is a logical and

reasonable essential element because, otherwise, the alleged improper training of an

employee by an employer could not result in injury to another. Put another way, how and

why could an employer be liable for the failure to train an employee when that employee

was not negligent on the occasion in question? More importantly, what legal and public

policy reason would justify holding an employer liable for a failure to train when the

employee did not breach any duty owed on the occasion in question?

This requirement is also consistent with the definition of “proximate cause” in the

Charge. Specifically, the Charge instructed that ETMC’s negligence had to be “a

23

substantial factor in bringing about an occurrence, and without which cause such

occurrence would not have occurred” (CR 375; 2 CR 129).

Under this definition of proximate cause, how could ETMC’s failure to train the

EMS Providers be a substantial factor in bringing about Ms. Delaune’s death unless they

breached an applicable standard of care when caring for Ms. Delaune? Similarly, a

failure to train by ETMC could only be a “but for” cause of Ms. Delaune’s death if the

EMS Providers departed from an applicable standard of care when caring for Ms.

Delaune.

According to the legal requirement that commission of an actionable tort by the

employee is a vital fact of Appellee’s negligent training claim against ETMC, three of the

four circumstances under which evidence is legally insufficient exist here. Because the

trial court ruled prior to trial that the EMS Providers were not negligent as a matter of

law, (1) the evidence conclusively establishes the opposite of this vital fact, (2) the trial

court was barred by Texas law in giving any weight to any evidence Appellee may have

offered at trial to prove this vital fact, and (3) there is a complete absence of this vital

fact.

C. Appellee’s Reliance on Lacroix v. Denton Regional Medical Center is Misplaced:

ETMC anticipates Appellee will argue Denton Regional Medical Center v.

Lacroix, 947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.),

establishes Texas law does not require that an employee commit an actionable tort in

order for the employer to be liable in an failure to train claim. Appellee’s reliance on

24

Lacroix is misplaced because a careful reading of Lacroix shows that it does not stand for

this proposition.

First and foremost, Lacroix is not a failure to train case. It is also not a negligent

hiring, retention or supervision case. The issue in Lacroix was that the hospital required

an anesthesiologist be present for all deliveries, but one was not present for Ms. Lacroix’s

delivery. See, id. at 949-50. As such, Lacroix is neither binding nor persuasive precedent

because it does not involve a “dependent” tort. See, Aguilera-Sanchez, 2003 Tex. App.

LEXIS 4846 at *16. Further, Lacroix is a Fort Worth Court of Appeals opinion and a

petition for review filed by the hospital was dismissed by agreement before it was

addressed by the Texas Supreme Court.

In addition to Lacroix’s petition for review history, the fact that Lacroix was

decided in 1997 is also significant. This is significant because in 2012 the Texas

Supreme Court addressed the dependent torts of negligent hiring and negligent

supervision in Wansley. When the Texas Supreme Court addressed these dependent torts

in Wansley, it held that negligent conduct by the employee was a predicate to recovery.

Wansley, 379 S.W.3d at 246. As such, Wansley really controls disposition of this appeal

because it directly addresses dependent torts like a failure to train claim.

D. Latimer v. Memorial Hermann Hospital System Support ETMC’s Position:

The Fourteenth District Court of Appeals’ decision in Latimer v. Memorial

Hermann Hospital System, 2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th

Dist.])(Jan. 20, 2011)(no pet.)(mem. op.) is instructive and persuasive authority

25

supporting ETMC’s argument in this point of error. In Latimer plaintiff asserted a claim

based on the dependent tort of negligent supervision. Memorial Hermann Hospital

moved for summary judgment wherein it established that the employee at issue

committed no actionable tort against plaintiff. The trial court granted Hermann’s motion.

On appeal the Fourteenth District Court of Appeals held that plaintiff’s claim was

properly dismissed because “there is no actionable tort to support the negligent

supervision claim.” Id. at *9-10.

The same situation exists here. Appellee asserted the dependent tort of failure to

train. Texas law requires that Appellee establish one or both of the EMS Providers

committed an actionable tort against Ms. Delaune. See, Aguilera-Sanchez, 2003 Tex.

App. LEXIS 4846 at *16 (citing Gonzales, 995 S.W.2d at 739-40); German, 369 S.W.3d

at 350. See also, Wansley, 379 S.W.3d at 246; Host Marriott Corp., 2001 Tex. App.

LEXIS 4409 at *4-6. Prior to trial, however, the trial court ruled that as a matter of law

neither Ms. Moore nor Ms. Spurgers committed a tort in their care of Ms. Delaune (CR

365-66; 2 CR 119-120). In fact, the court granted summary judgment in favor of the

EMS Providers on Appellee’s claim they were negligent in failing to restrain

Ms. Delaune (See, CR 33; 1 CR 37). Thus, as in Latimer, Appellee cannot recover from

ETMC because no actionable tort exists to support his failure to train claim. See,

Latimer, 2011 Tex. App. LEXIS 423 at *9-10.

As such, ETMC is entitled not only to reversal of the Final Judgment against it and

in favor of Appellee, but it is entitled to rendition of judgment in favor of it and against

26

Appellee because there is legally insufficient evidence of proximate cause to support

Appellee’s failure to train claim.

II. JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF THE APPLICABLE STANDARD OF CARE AND BREACH BY ETMC:

A. Appellee’s Burden:

In health care liability claims like this matter, the threshold issue that must be

established is the applicable standard of care. See, Ortegon v. Benavides, 2008 Tex. App.

LEXIS 1576 *13 (Tex. App.—San Antonio)(Mar. 5, 2008)(pet. denied)(mem. op.)(citing

Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.—Houston [1st Dist.] 1998, no pet.));

Cobb v. Dallas Fort Worth Medical Center, 48 S.W.3d 820, 825 (Tex. App.—Waco

2001, not pet.). The plaintiff in a health care liability claim has the burden at trial to

establish the applicable standard of care; the actual specifics of duty owed by the health

care provider to the patient. See, Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007);

Morrell v. Finke, 184 S.W.3d 257, 271 (Tex. App.—Fort Worth 2005, pet. denied).

Establishing the applicable standard of care is essential because without that information

the fact finder cannot determine if the facts show the defendant breached the standard of

care. See, Kingwood Pines Hospital, LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.—

Houston [14th Dist.] 2011, no pet.); Ortegon, 2008 Tex. App. LEXIS 1576 at *13; Nichols

v. Nacogdoches Hospital District, 96 S.W.3d 582, 586 (Tex. App.—Tyler 2002, no pet.).

While in general terms the standard of care applicable to ETMC is to do what an

ordinarily prudent emergency medical services provider would do under the same or

similar circumstances, a statement of this nature is not sufficient to establish the

27

applicable standard of care. Specific factual information is required to establish the

applicable standard of care and a resulting breach of that standard. See, Kingwood Pines

Hosp., 362 S.W.3d at 747; Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 13-14 (Tex.

App.—Tyler 2002, pet. denied); Nichols, 96 S.W.3d at 586; Gonzales v. Sid Peterson

Memorial Hospital, 2000 Tex. App. LEXIS 3137 *5 (Tex. App.—San Antonio)(May 17,

2000)(pet. denied)(mem. op.). In particular, plaintiff is required to provide specific

factual information about what the defendant should have done differently. See, id.

To establish the applicable standard of care, factual information must be provided

that describes the steps needed to comply with the applicable standard of care. For

example, when establishing the standard of care applicable to a radiologist for reading a

mammogram, a statement that the radiologist should “examine the mammogram x-rays

and report the results in a written report” is not sufficient. See, Chopra v. Hawryluk,

892 S.W.2d 229, 233 (Tex. App.—El Paso, 1995, writ denied). To establish the standard

of care there must be more factual detail. For example, the steps taken to properly read

the x-ray must be described and a description of what should be contained in an adequate

report must be provided. Id.

Similarly, simple assertions that a health care provider failed to do something is

not sufficient. See, Shaw, 100 S.W.3d at 14. More factual detail is required such as what

are appropriate actions under the circumstances or what factually should have been done

differently to comply with the applicable standard of care. Id.

In a failure to train claim, plaintiff is required to prove that a reasonably prudent

employer would have provided training beyond that which was given. See, Lermon, 2014

28

Tex. App. LEXIS 12498 at *25; Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.

App.—Fort Worth 2008, no pet.); Patino v. Complete Tire, Inc., 158 S.W.3d 655, 661

(Tex. App.—Dallas 2005, pet. denied); Allsup’s Convenience Stores, Inc. v. Warren,

934 S.W.2d 433, 437 (Tex. App.—Amarillo, 1996, writ denied). Plaintiff is also

required to provide “factual proof” of specific training that the employer should have

provided but didn’t. Allsup’s Convenience Stores, Inc., 934 S.W.2d at 437. Simply

saying ETMC “failed to train” the EMS Providers is not enough to establish the

applicable standard of care. See, Shaw, 100 S.W.3d at 14; Chopra, 892 S.W.2d at 233.

This form of standard of care evidence is insufficient because it is conclusory and ipse

dixit in nature. See, Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010); Earle v.

Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).

B. Appellee’s Evidence:

Appellee relied on his retained expert Dr. Wayne to establish the standard of care

applicable to ETMC in training Ms. Moore and Ms. Spurgers on the use of restraint and

to establish a breach of that standard of care. Dr. Wayne’s only specific testimony about

the applicable standard of care was a statement that EMS providers should be trained that

if “talk down” does not work, physical or chemical restraint is used (3 RR 28, lines 4-9).

Dr. Wayne later mentioned making sure employees understood what they were being

taught, but provided no further facts, details or specifics relevant to this opinion (See, 3

RR 36, lines 1-3; 62, lines 6-9).

With respect to ETMC’s breach of the standard of care, Dr. Wayne testified it was

his opinion ETMC did not train the EMS Providers on the use of restraint because

29

(1) they did not restrain Ms. Delaune, and (2) they did not mention restraint in their pre-

trial depositions (3 RR 60, lines 13-18; 3 RR 74, lines 14-20).

Dr. Wayne’s testimony was wholly based on inferences and not on any facts

related to ETMC’s actual training of the EMS Providers. Significantly, Dr. Wayne failed

to provide any facts about what specifically ETMC should have done differently or about

what training ETMC should have provided, but failed to provide.

Dr. Wayne simply inferred the EMS Providers were not trained because they did

not discuss the use of restraint in their depositions and because they did not restrain

Ms. Delaune. As shown below, this is legally insufficient evidence of the applicable

standard of care and breach of any standard of care by ETMC.

C. Appellee’s Evidence is Legally Insufficient Evidence of Applicable Standard of Care and Breach by ETMC:

1. Conclusory and ipse dixit testimony and inference stacking is legally insufficient evidence:

Expert testimony that is conclusory and ipse dixit in nature is incompetent

evidence and cannot support a jury verdict or judgment. See, City of San Antonio v.

Pollock, 284 S.W.3d 809, 816, 818 (Tex. 2009). A party may complain about conclusory

and incompetent evidence on appeal, even if no objection was asserted at trial. See, id. at

816 (citing Coastal Transportation Co. v. Crown Central Petroleum Corp., 136 S.W.3d

227, 232 (Tex. 2004)); id. at 817-18 (citing Burrow v. Acre, 997 S.W.2d 229, 235 (Tex.

1999)).

Expert testimony is conclusory and ipse dixit in nature where there is no factual

basis offered to support that opinion. See, Jelinek, 328 S.W.3d at 539-40; Earle, 998

30

S.W.2d at 890. Expert testimony is also conclusory and ipse dixit in nature when the

stated basis of the opinion does not support the opinion. See, Pollock, 284 S.W.3d at

817-18.

Further, an inference stacked on other inferences is not legally sufficient evidence.

Marathon Corp., 106 S.W.3d at 728. Dr. Wayne’s standard of care and breach testimony

is legally insufficient evidence because it is conclusory and ipse dixit in nature.

Dr. Wayne’s testimony on these issues is also legally insufficient evidence because it

involves one inference stacked on other inferences.

2. Dr. Wayne’s testimony on the applicable standard of care and breach is legally insuficient:

a. Failure to train on restraints:

The only evidence Appellee produced at trial that established a possible applicable

standard of care and breach of that standard by ETMC is Appellee’s assertion that ETMC

simply did not ever train the EMS Providers on the use of restraint. (See, 3 RR 36,

lines 6-8)(“…my feeling where the failure of the standard of care occurred is that if the

EMS providers only knew to talk down, they had not been taught.”).

Dr. Wayne’s opinion that the EMS Providers only knew talk-down and were not

taught about the use of restraints was based only on two things. This opinion was based

on (1) the fact the EMS Providers’ did not restrain Ms. Delaune and (2) because these

ladies did not mention restraint in their depositions (3 RR 60, lines 13-18; 3 RR 74, lines

14-20). This testimony is legally insufficient evidence of the applicable standard of care

and breach of that standard by ETMC.

31

(1) Evidence contrary to the verdict can be considered:

This Court can and should consider evidence contrary to the verdict when

evaluating ETMC’s claim that Dr. Wayne’s testimony is legally insufficient evidence of

the applicable standard of care and breach by ETMC. First, ETMC asserts that

Dr. Wayne’s testimony is incompetent because it is conclusory and ipse dixit in nature.

In evaluation of a claim that evidence is incompetent, evidence showing such

incompetence can be considered, even if contrary to the verdict. See, City of Keller,

168 S.W.3d at 812. Also applicable to evaluation of Dr. Wayne’s testimony is the fact

that when an expert’s opinion is based on a certain assumption about the facts, appellate

courts cannot disregard evidence showing those factual assumptions were unfounded. Id.

at 813.

In addition, Dr. Wayne makes inferences based on certain circumstantial evidence.

When the underlying circumstances are equally consistent with two facts, all of the

evidence and known circumstances can be considered. See, id. at 813-14. In addition,

Dr. Wayne makes conclusions about what the EMS Providers knew and did not know. In

evaluating Dr. Wayne’s conclusions about the EMS Providers’ conscious knowledge and

appreciation, evidence contrary to the verdict can be considered. See, id. at 817.

Finally, the evidence conclusively establishes that ETMC did train the EMS

Providers on the use of restraint. Appellate courts should consider and do not disregard

evidence that conclusively establishes the opposite of such a vital fact. See, id. at 814.

32

(2) Testimony is conclusory and ipse dixit:

Dr. Wayne’s testimony is conclusory and ipse dixit in nature because (1) his

opinion is not supported by what he relies on as the basis of his testimony, (2) the factual

assumptions he made are unfounded, and (3) he does not provide any factual basis for his

opinion. First, with respect to the EMS Providers’ actions, Dr. Wayne agreed that the

decision to utilize restraints involves the exercise of judgment by the EMS provider

(3 RR 75, lines 3-9). Dr. Wayne also agreed that even though the Behavioral Policy

covered restraint use in patients with behavioral emergencies, this policy is only a

“guideline” and not a “rule” (3 RR 73, lines 7-12). Dr. Wayne also agreed that

application of this policy to the treatment of a particular patient also involves the exercise

of judgment by the EMS provider (3 RR 73, lines 7-12).

Because an exercise of judgment is involved, one cannot simply infer from the fact

Ms. Delaune was not restrained that the failure to restrain was because the EMS

Providers were not trained on or did not know about restraint, as Dr. Wayne did here.

The fact restraint was not used could have just as likely been because it was not felt that

restraint was indicated. In fact, Ms. Moore testified that this was the reason Ms. Delaune

was not restrained (See, 3 RR 202-03).

The summary judgment in favor of the EMS Providers is also of significance.

Prior to trial it was determined that as a matter of law the EMS Providers did not have a

duty to restrain Ms. Delaune and did not breach any duty to restrain Ms. Delaune

(CR 365-66; 2 CR 119-120). Based on this established matter of law, the fact that the

EMS Providers did not restrain Ms. Delaune cannot and does not provide any support for

33

Dr. Wayne’s opinion that ETMC failed to train the EMS Providers on restraint. As such,

this opinion is conclusory and incompetent. See, Pollock, 284 S.W.3d at 817-18. In fact,

this ruling by the trial court conclusively prevents Dr. Wayne from inferring a failure to

train was the reason the EMS Providers did not restrain Ms. Delaune.

Second, Dr. Wayne claims the EMS Providers’ deposition testimony shows

ETMC failed to train them on the use of restraint. Dr. Wayne infers this from his

recollection the EMS Providers did not mention restraint in their depositions (3 RR 29,

lines 12-16). Dr. Wayne’s testimony here is wholly conclusory. See, Jelinek,

328 S.W.3d at 539-40; Earle, 998 S.W.2d at 890. At no time did Dr. Wayne quote or

point a specific area in these depositions as evidence that confirms or supports his

inference.

Also of significance is the fact that there is nothing in the record that shows the

EMS Providers were ever asked a question during deposition that would have required

them to discuss or mention the use of restraint. The record establishes that the answers a

witness gives during deposition depends upon the questions asked (3 RR 57, lines 7-16; 3

RR 59, lines 1-14). The record also establishes that whether or not the EMS Providers

discussed utilization of restraints in their deposition depended on Appellee’s counsel

asking one or more questions directed at the issue of restraints (5 RR 113, line 21 – 114,

line 17).

Dr. Wayne’s claim the EMS Providers’ depositions show ETMC did not train

them on restraints is conclusory and ipse dixit because there is no factual basis for this

opinion. See, Jelinek, 328 S.W.3d at 539-40; Earle, 998 S.W.2d at 890. Specifically,

34

Dr. Wayne did not establish that based on the questions asked during their depositions the

EMS Providers should have mentioned the use of restraint if they had knowledge about

the use of restraint. To the contrary, Dr. Wayne simply assumed restraint was not

mentioned because the EMS Providers did not know about it (3 RR 29, lines 12-16).

Because this opinion is based on Dr. Wayne assumption that failure to mention restraint

means ETMC did not train them on restraint and they did not have knowledge of

restraint, this Court must consider and cannot disregard evidence that shows this

assumption is unfounded. See, City of Keller, 168 S.W.3d at 813.

Under the circumstances, one also is equally able to infer restraint was not

mentioned in the depositions because it was not asked about. Further, as will be shown

immediately below, the evidence not only shows Dr. Wayne’s “factual” assumption is

unfounded, the evidence conclusively establishes ETMC did train the EMS Providers on

restraint and that they had knowledge of restraint before starting work with ETMC.

(3) Evidence conclusively establishes training on and knowledge of restraints:

In testifying ETMC failed to train on the use of restraint, Dr. Wayne first stated

the conclusion the EMS Providers “did not have the intrinsic knowledge” about the use of

restraint (3 RR 9, lines 15-16). Later, Dr. Wayne refined this opinion to state that ETMC

would have been negligent “if the EMS providers only knew to talk down” (3 RR 36,

lines 6-9).

The evidence conclusively establishes not only that ETMC trained Ms. Moore and

Ms. Spurgers on the use of restraint, but also that they had “intrinsic knowledge” about

35

the use of restraint long before they started work with ETMC. Because the evidence

conclusively establishes ETMC trained on the use of restraint and the EMS Providers did

not only know to talk down, the Court should consider, and cannot disregard, this

evidence contrary to the verdict. See, City of Keller, 168 S.W.3d at 814.

The evidence shows the EMS Providers were aware of ETMC’s Behavioral Policy

and its provisions on the use of restraint (See, 3 RR 96, lines 2-5, 156; 4 RR 13, lines 16-

19). The evidence also established the EMS Providers were trained on the use of restraint

at ETMC (3 RR 156-57, 158-60, 166-67; 4 RR 28, 61-62; 20 RR 9, 15 [Def. Ex. 31];

20 RR 19, 25 [Def. Ex. 32]; 20 RR 30 [Def. Ex. 37]; 20 RR 81-85 [Def. Ex. 38]). While

Dr. Wayne testified that ETMC did not train on the use of restraint, this is conclusory

testimony and is not validated by the evidence. In addition, the uncontroverted evidence

also establishes the EMS Providers were trained on and had knowledge about the use of

restraint prior to the time they started work for ETMC (See, 3 RR 135-36, 141, 145, 150;

4 RR 41, lines 19-25; 44, line 18 – 45, line 1). This evidence not only shows

Dr. Wayne’s opinion ETMC failed to train is incompetent because it has no factual basis,

it conclusively establishes that ETMC trained the EMS Providers on the use of restraint

and that the EMS Providers knew about the use of restraint. Appellee never controverted

this evidence.

(4) Opinion involves improper inference stacking:

Dr. Wayne’s testimony on this issue is also legally insufficient because it involves

one inference stacked on other inferences. Specifically, Dr. Wayne inferred the EMS

Providers were not trained on and did not know about restraint because (1) Ms. Delaune

36

was not restrained on the occasion in question and (2) the use of restraint was not

mentioned in their depositions.

Dr. Wayne then infers (1) the EMS Providers did not restrain Ms. Delaune

because they did not know about restraint, and (2) they did not mention restraint when

they were deposed for the same reason (See, 3 RR 35, 36, 60). Dr. Wayne’s inferences

are not based on any facts about what training ETMC did provide or what training ETMC

should have provided but did not provide. Thus, Dr. Wayne’s “opinion” ETMC failed to

train the EMS providers is legally insufficient because it is the result of improper

inference-stacking. See, Marathon Corp., 106 S.W.3d at 728.

b. ETMC’s training program:

To the extent that Appellee tries to argue the adequacy, degree, or sufficiency of

the restraint training provided by ETMC was improper, ETMC would point out that there

is nothing in the record that provides any evidence of the standard of care applicable to

ETMC on this issue or a breach of a standard of care on this issue. Dr. Wayne never

made any statement that the ETMC’s restraint training was not adequate for any specific

reason, that it did not cover the proper topics, or that the frequency or substance of the

training ETMC provided on restraint was inadequate.

Absent from the record on this issue is any factual evidence showing that as a

reasonably prudent employer ETMC was required to go beyond what it did do in training

the EMS Providers on the use of restraint. Because this information is absent from the

record, there is no evidence to support the applicable standard of care or a breach of any

such standard by ETMC on this issue. See, Dangerfield, 264 S.W.3d at 912, 913;

37

Patino, 158 S.W.3d at 661; Allsup’s Convenience Stores, Inc., 934 S.W.2d at 437.

Further, to the extent that Appellee tries to argue Dr. Wayne’s testimony somehow

implicates such a standard of care and breach, ETMC submits that any such testimony is

legally insufficient evidence because it is conclusory and ipse dixit in nature.

Specifically, Dr. Wayne never provides the necessary facts showing what additional

action or steps a reasonable employer should take or that ETMC failed to take any such

specific action or additional steps. See, id; See also, Jelinek, 328 S.W.3d at 539-40;

Earle, 998 S.W.2d at 890; Shaw, 10 S.W.3d at 14; Chopra, 892 S.W.2d at 233.

In fact, Dr. Wayne agreed that the structure of ETMC’s training program tracked

what the national organization that certifies EMS providers requires for certification

(3 RR 11-14). This further establishes Appellee does not have legally sufficient evidence

of any applicable standard of care related to the nature and substance of ETMC’s training

on restraint or any breach of that standard.

c. Making sure what was taught is understood:

What Appellee is left to argue is that ETMC failed to make sure the EMS

Providers understood what they were taught on restraint (See, 3 RR 36, lines 1-3; 3 RR

62, lines 6-9). This may be the true focus of Dr. Wayne’s testimony (See, 3 RR 36 [“Fact

two is assessing that those people have understood...”]; 3 RR 62 [“Again, what you’re

taught and what you know may not be the same thing. And there’s a responsibility to

assure that what you’re taught is what you know”]).

Appellee, however, produced no evidence as to the standard of care applicable to a

provider like ETMC to make sure that its employees understood what they were taught.

38

Whenever Dr. Wayne mentioned this concept, he never provided any details about how a

provider goes about making sure its employees understand what they are taught. More

importantly, Dr. Wayne never stated what ETMC should have done but failed to do to

make sure the EMS Providers understood what they were taught on the use of restraint.

For these reasons, Appellee did not carry his burden to establish the applicable

standard of care and breach on this issue. See, Dangerfield, 264 S.W.3d at 912, 913;

Patino, 158 S.W.3d at 661; Allsup’s Convenience Stores, Inc., 934 S.W.2d at 437. For

these same reasons, any testimony Dr. Wayne offered on this issue is legally insufficient

because it is conclusory and ipse dixit in nature. See, Jelinek, 328 S.W.3d at 539-40;

Earle, 998 S.W.2d at 890; Shaw, 100 S.W.3d at 14; Chopra, 892 S.W.2d at 233.

The fact Appellee produced no evidence of the standard of care or breach here is

emphasized by Dr. Wayne’s admission that he did not even know what ETMC’s

processes were to check compliance and make sure its EMS providers understood what

they were taught (3 RR 83, lines 5-8). Thus, not only was there no evidence of the

applicable standard of care on this issue, there was not even a basis from which Appellee

or Dr. Wayne could claim ETMC violated any applicable standard of care related to this

issue.

Finally, the evidence conclusively establishes that ETMC did act to make sure that

its providers understood what they were taught. Dr. Wayne did not dispute that ETMC

tested its providers on its protocols every year (3 RR 82, lines 15-19). Dr. Wayne also

did not controvert that the EMS Providers’ competency on restraint was demonstrated by

passing tests every two and four years to maintain their Texas and national certifications

39

(See, 3 RR 133, lines 5-15; 3 RR 134, lines 22-25). ETMC also documented through

routine evaluations that the EMS Providers knew and followed its protocols (See, 13 RR

56, 61, 66, 71, 82 [Pl. Ex. 19]; 14 RR 40, 43, 48, 54, 59 [Pl. Ex. 20]). For all these

reasons, Appellee does not have legally sufficient evidence of the standard of care or

breach on this issue.

D. Supportive Case Law:

The following cases support ETMC’s position Appellee has legally insufficient

evidence of the applicable standard of care or a breach of the standard of care by ETMC:

1. Mackey v. U.P. Enterprises, Inc.:

This Court’s opinion in Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446 (Tex.

App.—Tyler 1996, no pet.) supports ETMC’s claim that there is legally insufficient

evidence ETMC failed to train the EMS Providers on the use of restraint.

In Mackey, plaintiff alleged that she was sexually harassed by two of her

employer’s mangers, Smith and Johnson. Id. at 449. Plaintiff alleged her employer was

liable for “negligent supervision, training, and evaluation of Smith and Johnson.” Id. at

451, 459.

The employer, UPE, moved for summary judgment asserting that the summary

judgment evidence conclusively showed there was no failure to train Smith and Johnson.

Id. at 459-60. The summary judgment evidence showed UPE had a written policy against

sexual harassment posted in all of its stores, required all new employees to read the

policy, and stressed to employees that sexual harassment was against company policy.

Id.

40

In contrast, plaintiff relied on her allegations that sexual harassment had occurred

to establish a failure to supervise, train and evaluate. Plaintiff did not present evidence

controverting the employer’s facts or specifying other acts or omissions by the employer

showing it failed to properly train its employees on sexual harassment. Id. at 460.

Because plaintiff failed to produce such evidence, she failed to create a genuine issue of

material fact to support her failure to train claim. Id.

The situation before the Court here is analogous to the situation before the Court

in Mackey. The evidence here establishes that long before the EMS Providers started

work with ETMC they were educated, trained on and knew about the use of restraint

(See, 3 RR 129, 145-46, 140; 4 RR 44, line 22 – 45, line 1; 4 RR 52, lines 7-15). ETMC

also has a written policy on the use of restraint that Appellee and his expert agree is a

reasonable and proper policy (See, 3 RR 28, lines 10-25; 3 RR 90, lines 8-17). Both the

EMS Providers knew about this Behavioral Policy (See, 3 RR 156; 4 RR 13). In

addition, a copy of this policy was always in their ETMC ambulance (See, 3 RR 168,

lines 20-24). Further, ETMC trained both the EMS Providers on restraint (13 RR 16 [Pl.

Ex. 20]; 13 RR 26 [Pl. Ex. 16]; 20 RR 9, 15 [Def. Ex. 31]; 20 RR 19, 25 [Def. Ex. 32]).

The EMS Providers’ understanding and knowledge of the use of restraint was also

routinely tested and both ladies passed this routine testing (See, 3 RR 134, lines 2-20; 3

RR 167, line 19 – 168, line 5). Finally, ETMC provided Power Point training on the use

of restraint about four months before this incident (6 RR 97, line 20 – 98, line 13; 6 RR

105, lines 11-23; 6 RR 106, line 4 – 107, line 17; 20 RR 81-85 [Def. Ex. 38]).

41

In response to this evidence, like the plaintiff in Mackey, Appellee simply relies on

the fact the EMS Providers did not restrain Ms. Delaune. Prior to trial, however, the trial

court determined that the standard of care did not require that the EMS Providers restrain

Ms. Delaune. Further, Appellee produced no evidence that controverted ETMC’s

training facts and provided no facts that showed ETMC somehow otherwise failed to

train the EMS Providers on restraint. For these reasons, like in Mackey, Appellee has

legally insufficient evidence to establish a failure to train by ETMC.

2. Allsup’s Convenience Stores, Inc. v. Warren:

An employee who injured her back lifting boxes full of gallon milk jugs sued for

negligent training in Allsup’s Convenience Stores. Allusp’s, 934 S.W.2d at 434. The

employee prevailed at trial. The jury verdict and judgment in her favor was reversed on

appeal.

The evidence at trial showed that the employee was familiar with the employer’s

safety manual and that this manual covered proper lifting techniques. A fellow employee

also testified that he had shown the employee how to unload boxes. Id. at 437. The

Amarillo Court of Appeals ruled that the employee’s own testimony she was not trained

to lift heavy boxes was not only conclusory, but it was not validated by the evidence. Id.

The Amarillo Court of Appeals also stated that the employee had the burden to

“provide factual proof of the training that Allsup negligently failed to provided.” Id. The

court also stated:

What is missing from the record to sustain [the employee’s] claim is evidence of any training beyond that given [employee] for lifting

42

items from the truck which would be necessary and proper by a reasonably prudent employer.

Id. Because this evidence was not in the record, employee did not carry her burden, the

judgment in her favor was reversed, and judgment was entered that she take nothing. Id.

at 438-39.

ETMC’s position here is supported by even more favorable circumstances than

those in Allsup’s. As in Allsup’s, the evidence shows the EMS Providers were aware of

the Behavioral Policy and its provisions on the use of restraint (See, 3 RR 96, lines 2-5,

156; 4 RR 13, lines 16-19). The evidence also established the EMS Providers were

trained on the use of restraint at ETMC (3 RR 156-57, 158-60; 4 RR 28, lines 17-24; 39,

lines 1-10; 61, line 12 – 62, line 1; 20 RR 9, 15 [Def. Ex. 31]; 20 RR 19, 25 [Def. Ex.

32]). While Dr. Wayne testified ETMC did not train on the use of restraint, this is

conclusory testimony and is not validated by the evidence. Thus, the same circumstances

that established legally insufficient evidence of a failure to train in Allsup’s are present

here. In addition, however, the uncontroverted evidence establishes the EMS Providers

were trained on and knew about the use of restraint before they started work for ETMC

(See, 3 RR 135-36, 141, 145, 150; 4 RR 41, lines 19-25; 44, line 18 – 45, line 1).

As in Allsup’s, absent from the record is evidence of any training beyond that

ETMC provided on restraint that would be required of a reasonably prudent emergency

medical services provider. For this reason, Allsup’s supports ETMC’s assertion that the

verdict and judgment in favor of Appellee should be reversed and that a take nothing

judgment should be entered in favor of ETMC.

43

3. Patino v. Complete Tire, Inc.:

In Patino, an employee hired to remove and repair flat truck tires was injured

while removing a large flat tire from a tire rim. Patino, 158 S.W.3d at 658. Claimant

alleged his employer did not properly train him because he had not received any formal

training on changing tires. The evidence showed that for the first few days of

employment, claimant was accompanied by a more experienced tire technician who

observed his tire-changing technique. This more experienced technician would have

shown examples of proper technique to claimant and commented on any adjustments in

technique that claimant needed to make. Id. at 661.

Claimant did not present any evidence showing what training beyond that he was

given should be provided by a reasonable and prudent employer. Id. Because this

evidence was missing, the Dallas Court of Appeals concluded claimant presented no

evidence of a breach of any standard of care. Id.

Here, Appellee presented no evidence about training on restraint beyond that

provided by ETMC that should be provided by a reasonable and prudent EMS provider.

Appellee simply claimed in conclusory fashion that proper training was not provided.

For this reason, Patino also supports ETMC’s request for a reversal of the verdict and

judgment against it.

44

CONCLUSION

ETMC is entitled to reversal of the Final Judgment against it and in favor of

Appellee because ETMC has shown there is legally insufficient evidence as to causation

against ETMC and a failure to train by ETMC. Appellee’s evidence is legally

insufficient if one or more of the following circumstances exist:

1. The record discloses a complete absence of a vital fact;

2. The court is barred by rules of law or rules of evidence from giving weight to the only evidence offered to prove a vital fact;

3. The evidence offered to prove a vital fact is no more than a mere scintilla, or;

4. The evidence establishes conclusively the opposite of a vital fact.

City of Keller, 168 S.W.3d at 810; Crown Pine Timber 1, L.P., 2012 Tex. App. LEXIS

3658 at *8-9.

There is legally insufficient evidence of causation because Appellee did not

establish the EMS Providers committed an actionable tort. Not only is there a complete

absence of this vital fact, the record establishes conclusively the opposite. The record

establishes that as a matter of law the EMS Providers did not commit a tort against

Appellee. This is a vital fact that Appellee had to prove in order to establish causation in

his failure to train claim. Because this vital fact was not established, and could not be

established as a matter of law, Appellee has legally insufficient evidence of causation on

his failure to train claim and ETMC is entitled to reversal of the judgment against it.

There is also legally insufficient evidence of the standard of care applicable to

ETMC and a breach of any standard of care. Other than making a conclusory and ipse

45

dixit assertion that ETMC simply did not train the EMS Providers on the use of restraint,

Appellee presented no legally sufficient evidence of the standard of care applicable to

ETMC in training providers like Ms. Moore and Ms. Spurgers on the use of restraint or a

breach of that standard.

Appellee never provided any specific information about what was required of a

reasonable employer in training EMS personnel on the use of restraint or that ETMC

failed to provide some specific training that a reasonable employer would have provided.

Appellee essentially did nothing more than claim Ms. Delaune should have been

restrained and then assert she was not restrained because of a failure to train by ETMC.

As shown by the authority cited above, the testimony Appellee offered is not competent

evidence of the applicable standard of care or breach.

Because the actual facts did not support Appellee, the only way Appellee could

argue there was a failure to train was by stacking inference upon inference. Not only is

inference-stacking insufficient to create legally sufficient evidence, the inferences made

are not supported by the facts.

The fact of the matter is the evidence conclusively established ETMC did train the

EMS Providers on the use of restraint and that the EMS Providers were evaluated and

tested on their knowledge of restraint at ETMC. Appellee never controverted those facts.

Appellee only asserted in response that training and knowledge are two different things.

Appellee, however, never provided any facts or evidence showing what a reasonable

emergency medical services provider was required to do beyond what ETMC did.

46

Because Appellee did not provide these facts or evidence, his evidence on the applicable

standard of care and breach is legally insufficient.

Because Appellee’s evidence is legally insufficient on causation, the applicable

standard of care and breach of the standard of care, the Tyler Court of Appeals should

reverse the verdict and Final Judgment in favor of Appellee and enter a take nothing

judgment against Appellee and in favor of ETMC.

47

PRAYER

WHEREFORE, PREMISES CONSIDERED, East Texas Medical Center d/b/a

East Texas Medical Center Emergency Medical Services, respectfully requests that the

Twelfth Court of Appeals grant it the following relief:

1. Reverse the verdict and Final Judgment against it in the trial court, and;

2. Enter a take nothing judgment against Appellee and in favor of East Texas

Medical Center d/b/a East Texas Medical Center Emergency Medical

Services.

Respectfully Submitted, THIEBAUD REMINGTON THORNTON BAILEY, L.L.P.

By: /s/Russell G. Thornton RUSSELL G. THORNTON State Bar Card No. 19982850 rthornton@trtblaw.com 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206 (214) 954-2200 (214) 754-0999 (Fax)

COUNSEL FOR APPELLANT EAST TEXAS MEDICAL CENTER d/b/a EAST TEXAS MEDICAL CENTER EMERGENCY MEDICAL SERVICES

48

CERTIFICATE OF COMPLIANCE

Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant certifies

that its Brief on the Merits, filed on June 3, 2015 in the Twelfth Court of Appeals,

contains 11,211 words.

/s/ Russell G. Thornton RUSSELL G. THORNTON

49

CERTIFICATE OF SERVICE

The undersigned certifies that on the 3rd day of June, 2015, a true and correct

copy of the foregoing document was delivered to counsel listed below:

Mr. Ryan Krebs, M.D., J.D. VIA E-SERVE & E-MAIL THE LAW OFFICE OF RYAN KREBS 805 W. 10th Street, Suite 300 Austin, Texas 78701 ryan@ryankrebsmdjd.com

/s/Russell G. Thornton RUSSELL G. THORNTON

APPENDIX

APPENDIX- ''A''

Cause No. 13-0984-A

JODY DELAUNE, Individually; and § as Personal Representative of the Estate § of CRYSTAL DELAUNE, Deceased; § and as Next Friend of DALTON § DELAUNE, DESTINY DELAUNE, § and DEE ANN DELAUNE, Minors, § § Plaintiffs, § § v. § SMITH COUNTY, TEXAS § EAST TEXAS MEDICAL CENTER § D/B/A EAST TEXAS MEDICAL CENTER § EMERGENCY MEDICAL SERVICES, § § § § § Defendant. § 7th JUDICIAL DISTRICT

FINAL JUDGMENT

The Court finds thai the jury's verdict in this healthcare liability claim is rupported by the

evidence and therefore renders judgment against Defendant and for Plaintiffs as follows:

1. The Court orders that Plaintiff, Jody Delaune, Individually recovers from Defendant, the sum

of:

a.) $7,500.00 for pecuniary loss sustained in the past; b.) $36,000.00 for pecuniary loss in the future;

The Court orders that Plaintiff, Jody Delaune, as Next Friend of Dalton Delaune recovers

from Defendant, the sum of.

c.) $7,500.00 for pecuniary loss sustained in the past; d.) $20,000.00 for pecuniary loss in the future; e.) $2,500.00 for loss of companionship and society in the past; f.) $2,500,00 for loss of companionship and society in the future; g.) $2,500.00 for mental anguish in the past;

Page 738

h.) $2,500.00 for mental anguish in the future;

The Court orders that Plaintiff, Jody Delaune, as Next Friend of Destiny Delaune recovers

from Defendant, the sum of:

i.) $7,500.00 for pecuniary loss sustained in the past; j.) $26,000.00 for pecuniary loss in the future; k.) $2,500.00 for loss of companionship and society in the past; 1.) $2,500.00 for loss of companionship and society in the future; m.) $2,500.00 for mental anguish in the past; n,) $2,500.00 for mental anguish in the future;

The Court orders that Plaintiff, Jody Delaune, as Next Friend of Dee Arm Delaune recovers

from Defendant, the sum of:

o.) $7,500.00 for pecuniary loss sustained in the past; p.) $36,000.00 for pecWiiary loss in the future; q.) $2,500.00 for loss of companionship and society in the past; r.) $2,500.00 for loss of companionship and society in the future; s.) $2,500.00 for mental anguish in the past; t.) $2,500.00 for mental anguish in the future;

The Court orders that Plaintiff, Jody Delaune, as Personal Representative of the Estate of

Crystal Delaune recovers from Defendant, the sum of:

u.) $3,000.00 for funeral and burial expenses.

The total judgment for a-u above is $181,000.00.

The judgment for "past damages" for items a, c, e, g, i, k, m. o, q and s is $45,000.00.

Plaintiff is entitled to recover pr~udgment interest on the $45,000.00 in "past damages." The

prejudgment interest rate on these past damages is equivalent to the post judgment Interest

rate ofS%. Tex. Fin. Code§ 304.103 (Vernon Supp. 2002). Pursuant to Texas Finance Code

section 304.007, the Court hereby takes judicial notice of the fact that at the time of the

rendition of this judgment, the post judgment interest rate as set by the Consumer Credit

Commission and published in the Texas Register is 5 percent (S%). Pre-judgment interest in

a health care liability claim begins accruing on the earlier of the l80'h day after the date

Defendant received written notice of the claim or the date suit is filed and ends on the date

before the judgment is signed. Defendant received written notice of the claim on November

Page 739

8, 2012. See Exhibit B attached to Plaintiffs' First Amended Motion for Judgment on the

Verdict. (Plaintiffs' Original Petition was filed Aprill5, 2013). 180 days from November 8,

2012 is May 7, 2013. May 7, 2013 to December 21, 2014, the day before signing of the

judgment on December 22, 2014 is 594 days or 1.63 years (594/365 = 1.63). Using these calculations, the Court finds that prejudgment interest of 5% simple interest on the

$45,000.00 in "past damages" accruing 1.63 years is $3,661.64 (.05 x 1.63 x 45,000 =

3,661.64).

2. The Court orders that Plaintiffs, Jody Delaune, Individually; and as Personal Representative

of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny

Delaune, and Dee Ann Delaune, Minors, recover from Defendant taxable court costs in the

amount of $7,377.48 from Defendant. See Exhibit C attached to Plaintiffs' First Amended

Motion for Judgment on the Verdict.

3. The Court orders that the total judgment for damages recoverable by Plaintiffs from

Defendant as reflected in the Charge of the Court attached to Plaintiffs' First Amended

Motion for Judgment on the Verdict as Exhibit A, taxable court costs attached to Plaintiffs'

First Amended Motion for Judgment on the Verdict as Exhibit C, and pre-judgment interest

on past damages is $192,039.12 (181,000 + 7,377.48 + 3,661.64 = 192,039.12).

4. Pursuant to Texas Finance Code section 304.005(a) {Vernon Supp. 2002), the Court orders

that post judgment interest will begin to accrue on this judgment at the legal rate of 5%

beginning on the date this judgment is signed and that Defendant is responsible and shall

continue to be responsible to Plaintiffs for such post judgment interest until the judgment is

satisfied in full.

5. The Court orders execution to issue for this judgment.

6. This judgment finally disposes of all claims and all parties and is appealable.

Page 740

7. Tlte Cou~~enies all relief not granted in this judgme_nt_.--..

SIGNED on this23dayof Deo&tbff ,2014.

Page 741

APPENDIX- ''B''

0 FILED LOIS RCXoERS DISTRiCT CLERK CAUSE NO. 13·0984-A

JODY DELAUNE, Individually; and § as Personal Representative of the Estate § of CRYSTAL DELAUNE, Deceased; § and as Next Friend of DALTON § DELAUNE, DESTINY DELAUNE, § and DEE ANN DELAUNE, Minors, § § Plaintiffs, § § v. § COURT IN AND FOR § EAST TEXAS MEDICAL CENTER § d/b/a EAST TEXAS MEDICAL § EMERGENCY MEDICAL SERVICES, § § Defendant. § SMITH COUNTY, TEXAS

CHARGEOFTHECOURT MEMBERS OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason.

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructions.

Page 373

4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or answer is not important

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must be based on a preponderance of the evidence. Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence.

The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of do<.,'llments admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.

A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way."

11. The answers to the questions must be based on the decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do not agree to be bound by a vote of anything less than ten jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

"Negligence" when used with respect to the conduct of East Texas Medical Center Emergency Medical Services, means failure to use ordinary care, that is, failing to do that which an emergency medical services provider of ordinary prudence would have done under the same or

Page 374

..

0

similar circumstances or doing that which an emergency medical services provider of ordinary prudence would not have done under the same or similar circumstances. A finding of negligence may not be based solely on evidence of a bad result to the claimant in question, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence. You are the sole judges of the weight, if any, to be given to this kind of evidence.

"Ordinary care," when used with respect to the conduct of East Texas Medical Center Emergency Medical Services, means that degree of care that an emergency medical services provider of ordinary prudence would use under the same or similar circumstances. An emergency medical services provider acts in the manner in which it formulates, implements, and enforces its policies, procedures, rules, bylaws, and other governing protocols, whether express or implied.

"Proximate cause," when used with respect to the conduct of East Texas Medical Center Emergency Medical Services, means a cause that was a substantial factor in bringing about an occurrence, and without which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an emergency medical services provider using ordinary care would have foreseen that the occorrence, or some similar occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occuuence.

Page 375,

QUESTION 1

Did the negligence, if any, of East Texas Medical Center Emergency Medical Services proximately cause the death of Crystal Delaune?

Answer "Yes" or "No":

Answer: --=J~fdi'e.;l$c__ __

Page 376

u

Answer Question 2 if you answered "Yes" for Question 1. Otherwise, do not answer Question 2.

QUESTION2

What sum of money, if paid now in cash, would fairly and reasonably compensate Jody Delaune for his damages, if any, resulting from the death of Crystal Delaune?

Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages, if any.

Do not consider, discuss, or speculate whether any party is or is not subject to any damages limit under applicable law.

1. Peeuniary loss sustained in the past:

"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Jody Delaune, in reasonable probability, would have received from Crystal Delaune had she Jived.

Answer:$ 7 1 260 .60 2. Pecuniary loss that, in reasonable probability, will be sustained in the future.

Answer: 3 &taoo. Do

I

3. Loss of companionship and society sustained in the past.

"Loss of companionship and society" means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Jody Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer: $_ _0_::::__._0..;._::0:::.._

4. Loss of companionship and society that, in reasonable probability, will be sustained in the future.

Answer: $_ ___,Q"=~·-0_0_

Page 377

5. Mental anguish sustained in the past.

"Mental anguish" means the emotional pain, torment, and suffering experienced by Jody Delaune because of the death of Crystal Delaune.

Answer: $_ _ _ _ _ 0~·;.,_:_•~0"-0:::::.__ _~ 6. Mental anguish that, in reasonability probability, will be sustained in the future.

Answer:$ 0. 00 In determining damages elements for 3, 4, 5, and 6, you may consider the relationship between Jody Delaune and Crystal Delaune, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities.

Page 378

Answer Question 3 if you answered "Yes" for Question 1. Otherwise, do not answer Question 3.

QUESTION3

What sum of money, if paid now in cash, would fairly and reasonably compensate Dalton Delaune for his damages, if any, resulting from the death of Crystal Delaune?

Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages, if any.

Do not consider, discuss, or speculate whether any party is or is not subject to any damages limit under applicable law.

1. Pecuniary loss sustained in the past.

"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Dalton Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer:$ 7, s-00. GO 2. Pecuniary loss that, in reasonable probability, Dalton Delaune will sustain in the future.

Answer:$ 20io:o ,[50 '

3. Loss of companionship and society sustained in the past.

"Loss of companionship and society" means the loss of the positive benefits flowing from the Jove, comfort, companionship, and society that Dalton Delaune, in reasonable probability, would have received fmm Crystal Delaune had she lived.

Answer:$ 7 1-s--00 .00 4. Loss of companionship and society that, in reasonable probability, Dalton Delaune will sustain in the future.

Answer: $_--l2:...--+/-c;'-----O--"()""--~_C:J_6_ __

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u

5. Mental anguish sustained in the past.

"Mental anguish" means the emotional pain, torment, and suffering experienced by Dalton Delaune because of the death of Crystal Delaune.

Answer: $ 2 1c:;-o () ,D0 6. Mental anguish that, in reasonability probability, Dalton Delaune will sustain in the future.

Answer: $ (_...) S()Q . 00 In determining damages elements for 3, 4, 5, and 6, you may consider the relationship between Dalton Delaune and Crystal Delaune, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities.

Page 380

Answer Question 4 if you answered "Yes" for Question 1. Otherwise, do not answer Question 4.

QUESTION4

What sum of money, if paid now in cash, would fairly and reasonably compensate Destiny Delaune for her damages, if any, resulting from the death of Crystal Delaune?

Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages, if any.

Do not consider, discuss, or speculate whether any party is or is not subject to any damages limit under applicable law.

1. Pecuniary loss sustained in the past.

"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Destiny Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer:$ ] \ S""o-D • 00 2. Pecuniary loss that, in reasonable probability, Destiny Delaune will sustain in the future.

Answer:$ L &,QOD •CO 3. '

Loss of companionship and society sustained in the past.

"Loss of companionship and society" means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Destiny Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer:$ '2! .:;00 • a0 4. Loss of companionship and society that, in reasonable probability, Destiny Delaune will sustain in the future.

Answer:$ "2 1r;-Q() • DO

Page 381

u

5. Mental anguish sustained in the past.

"Mental anguish" means the emotional pain, torment, and suffering experienced by Destiny Delaune because of the death of Crystal Delaune.

Answer: $ 2 1

I

c;-Q 0 • (j)

6. Mental anguish that, in reasonability probability, Destiny Delaune will sustain in the future.

Answer:$ 2, SO 0 , 60 In determining damages elements for 3, 4, 5, and 6, you may consider the relationship between Destiny Delaune and Crystal Delaune, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities.

Page 382

Answer Question 5 if you answered "Yes" for Question 1. Otherwise, do not answer Question 5.

QUESTIONS

What sum of money, if paid now in cash, would fairly and reasonably compensate Dee Ann Delaune for her damages, if any, resulting from the death of Crystal Delaune?

Consider the elements of damages listed below and none other, Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages, if any.

Do not consider, discuss, or speculate whether any party is or is not subject to any damages limit under applicable law.

1. Pecuniary loss sustained in the past.

"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Dee Ann Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer:$ 7J SCJO , 00 2. Pecuniary loss that, in reasonable probability, Dee Ann Delaune will sustain in the future.

Answer:$ 3 G, OOQ, crtl 3. Loss of companionship and society sustained in the past.

"Loss of companionship and society" means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Dee Ann Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.

Answer: $ L ..;1}0 • CO 4. Loss of companionship and society that, in reasonable probability, Dee Ann Delaune will sustain in the future.

Answer: $ 2 1 5{)() • 06

Page 383

5. Mental anguish sustained in the past.

"Mental anguish" means the emotional pain, torment, and suffering experienced by Dee Ann Delaune because of the death of Crystal Delaune.

Answer: $ 2 1 £00 . OD 6. Mental anguish that, in reasonability probability, Dee Ann Delaune will sustain in the future.

Answer:$ 2, ~ 0 • 00 In determining damages elements for 3, 4, 5, and 6, you may consider the relationship between Dee Ann Delaune and Crystal Delaune, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities.

Page 384

.·

Answer Question 6 if you answered "Yes" for Question 1. Otherwise, do not answer Question 6.

QUESTION6

What sum of money would have fairly and reasonably compensated Crystal Delaune for-

1. Pain and mental anguish.

"Pain and mental anguish" means the conscious physical pain and emotional pain, torment, and suffering experienced by Crystal Delaune before her death as a result of the occurrence in question.

Answer in dollars and cents for damages, if any.

Answer: $, _ _ _ 0=---..!•--=0~Q""' 2. Funeral and burial expenses.

"Funeral and burial expenses" means the reasonable amount of expenses for funeral and burial for Crystal Delaune reasonably suitable to her station in life.

Answer in dollars and cents for damages, if any.

Answer: $ ) 1 dOQ • 00 •

Page 385

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u

PRESIDiNG JUROR

1. When you go into the jury room to answer the questions, the first thing you will need to do is choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to your deliberations;

b. preside over your deliberations, meaning manage the discussions, and see that you follow these instructions;

c. give written questions or comments to the bailiff who will give them to the judge;

d. write down the answers you agree on;

e. get the signatures for the verdict certificate; and

f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

INSTRUCfiONS FOR SIGNING THE VERDICT CERTIFICATE

L You may answer the questions on a vote of ten jurors. The same ten jurors must agree on every answer in the charge. This means you may not have one group of ten jurors agree on one answer and a different group of ten jurors agree on another.

2. If ten jurors agree on every answer, those ten jurors sign the verdict.

If eleven jurors agree on every answer, those eleven jurors sign the verdict.

If all twelve of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.

3. All jurors should deliberate on every question. You may end up with all twelve of you agreeing on some answers, while only ten or eleven of you agree on other answers. But when you sign the verdict, only those then who agree on every answer will sign the verdict.

L.RUSSELL atJlfGE PRESIDING, rn' DISTRICT COURT

Page 386

' .' .._.

t "

VERDICT CERTIFICATE

Check one:

Our verdict is unanimous. All twelve of us have agreed to each and every answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror ~ :;;: ~ (/)

:s 0 --c Our verdict is not unanimous. Eleven of us have agreed to each and every ~-~- an~ave~ ~ signed the certificate below. J ""' ~;)_ ,J :.!} ~~ N .. 1Jr c -"' -1()[Tl Our verdict is not unanimous. Ten of us have agreed to each and every a swe?~n~ve -:; '~) 0 signed the certificate below. F:~' -_: S SJ ~ S2 Cf? :D (f)

Signature Name Printed =< 2n 'c:! ?'

1. m/ffls!ln tJl-tT2(<:~ 1-1/ 2. -----~'-\l r;t k 1 V\.1

3. }.. " d ceo- 2:, . \.D~,IS.:u-.n 4.

Srd.c¥ 7'

5.

6.

7.

8.

9.

10.

11.

Page 387

APPENDIX- ''C''

CIIIN ~o. 13..o984-A JOPY PELAVNE,lndlvldully;1111d u Ptnoaal RtprtHntadvt of tilt Ettatt of CRYSTAL DELAUNE, 0.1...S;

•

I

f

lDthe

and at ~m Frltnd of DALTON I DELAt~ DESTINY DELAU!'I'E, I ud DEE AN.'i DELAUNE, Millon, I

I

Plaladtrt, 0

I

y, SMlm COtlNTY, TEXAS

I

EAST TEXAS MEDICAL CENTER •• EMS. LINDA MOORE, 1111d U.'iDY SPUllGERS, •

I

'I 7tll Jt'DJCIAL DISTRICT

Order on •• d a• P a'!

w2!!! LILli Ill 1 mDefeudantt• Tradltlonal•lld No-Evldtnee Motlont for Symmanr JudmtP' RnKJUPI WQfulgr Waptgp, Ngltsgs;c

Dtfen&na Eul Toxu Me4le.t Center dlb/a Ban Texu Medical Cent.. Emerpncy Me4lcal Servicet, Linda Moore, and Lindy Spuraert (toitltber, "Dtfcnduta'') preNtttod lhe!r Reply to Pllint!fli' Rctpoi\IC to Dcfemllnll' Tl'lditional and No·Evldence MoliO!If for SlllnliWY Judammt RcprdlnJ Wilful or Wcton :-le,U&a~ce in <ddltion to tb~r Tzadition.t and No- EY!dtnce Moliotll for 8Wil!llii'Y Judpnent Repnlina Wilful and Wanlon NoJ]i.,nce. The Cowt, lavina reviewed !he motiolll, Pllint!fli' rtii'OI* to tb.e moliolll. lhe awlic.Ole law, cd lhe AfiU!!!IIIII of coUillel, if cy, ia of !be opinion Defendutt' motiont ahould be araatecl.

It It, tl11refon, ORDERED, ADJUDGED, and DECREED ~ ilof I P t 'JI

P' f '[; ' t d 1 I Defendants' Traditional and No·l!vldence Motlona for SllllllTW')' Jlldameut Reptlfulg Wilflll or Wanton Noallaenct and Defondmta' Tradltion.t and No-Evidence Motiona for SUIIlltliiY Judament Rcpn!ina Willlll and Wmton Nealiaence m GRA.VI'ED, and all claim~ btou8ht by Pltlntift'a apinat Lind< Moore cd Lindy Spuratc'~ are dlamiuod with prejudice.

Old« on ~tt' 1\tply 10 Pllllld~' IIMponM 10 Odladlfttt' Trod1tioMl OCid ~o·B\'ldtll«< Moll<>nt tl)r S~~~M>J~Y JlldF"oat "'fOI'dlnl Wilful or WlftiOn ~IJ!lson~- P111 I

Page 365

All relief not npnuly J!ID~fd h«ein iJ ~td.

StG:\'ID thil ~day of..-ru:;o..---1--A.'-~

Otdlt 011 c.,.,.,..• k'!'lr "'PW.~~· Jl.o-10 011\a!ao!l' TIICIIUonll lad s..!vid- M~oN tor SIIIMIII'l' Judi!UIIIIltp'du~J Wllr.l Of WMIOft ll'lll...oo • P111 2

Page 366

APPENDIX- ''D''

Page I

LexisNexis@ MICHAEL B. WANSEY, INDIVIDUALLY AND D/B/A RIO GRANDE DEFEN- SIVE DRIVING SCHOOL, PETITIONER, v. CHERYL D. HOLE, RESPONDENT

NO. 11-0348

SUPREME COURT OF TEXAS

379 S. W.3d 246; 2012 Tex. LEXIS 559; 55 Tex. Sup. J. 1093

June 29, 2012, Opinion Delivered

SUBSEQUENT HISTORY: Released for Publica- cordingly, pursuant to Texas Rule of Appellate Procetion August 17,2012. dure 59.1, without hearing oral argument we reverse the Motion for rehearing on petition for review denied by court of appeals' judgment and render judgment for peti- Wansey v. Hole, 2012 Tex. LEXIS 648 (Tex., Aug. 17, tioner. 2012)

Cheryl and Ronald Hole, both attorneys, enrolled their minor daughter in a driving [**2] school owned PRIORHISTORY: [**I]

and operated by Michael B. Wansey. One evening, when ON PETITION FOR REVIEW FROM THE COURT Ronald arrived at the business to pick up his daughter, he OF APPEALS FOR THE THIRTEENTH DISTRICT OF was unable to find her inside. He proceeded to a door TEXAS.

that stood ajar at the back of the building. Opening the Wansey v. Hole, 2011 Tex. App. LEXIS 2594 (Tex. App.

door, Ronald found her standing outside, in the dark, Corpus Christi, Apr. 7, 2011)

backing away from one of her driving instructors. Ronald suspected that they had engaged in inappropriate behavior , but both his daughter and the instructor denied any COUNSEL: For Wansey, Michael B., PETITIONER:

wrongdoing.

Mr. William L. Hubbard, Attorney at Law, Edinburg TX; Mr. Steve Efthimiou, Attorney at Law, Brownsville TX; Thereafter, the Holes removed their daughter from Mr. Thomas G. Rayfield, Law Offices of Thomas Ray- the course and demanded a full refund from Wansey, field, McAllen TX; Mr. Jason Roger Mann, Jason R since she would have to start a new course from the be- Mann & Associates, HARLINGEN TX. ginning. Wansey refused to offer any explanation for the instructor's behavior, and disclaimed any responsibility For Hole, Cheryl D., RESPONDENT: Ms. Ida Cecilia for his employee's behavior after class hours. Wansey Garza, Gault Nye & Quintana LLP, McAllen TX; Mr. also refused to issue a full refund, but instead sent a Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen TX. check for only eighteen dollars--the pro-rated cost of the four hours of instruction remaining in the course.

OPINION Cheryl Hole--the lone plaintiff in this case--sued [*246] PER CURIAM Wansey, not for harm endured by her daughter in the allegedly inappropriate incident with the driving instruc-

In this case, we must decide whether a plaintiff may tor, but for the cost of the driving course, alleging breach recover on a claim for negligent hiring and supervision of contract and grossly negligent [**3] or malicious despite suffering [*24 7] no harm at the hands of the hiring, training, supervision, or retention. The jury reemployee who was allegedly negligently hired. We hold tumed a verdict in favor of Hole, finding that Wansey's that a negligent hiring claim requires that some harmful negligent conduct had proximately caused harm to Hole or negligent conduct of an employee--one hired pursuant and that Wansey had breached the contract. The jury to the defendant's negligent hiring or supervision pracawarded Hole $225 (the cost of the course) in compentices --proximately caused the injury complained of. Acsatory damages, $5,000 in attorney fees, and $15,000 in

Page 2 379 S,W.3d 246, *; 2012 Tex. LEXIS 559, **;

55 Tex. Sup. J. 1093

exemplary damages. The court of appeals reversed the sey's [**5] driving schooL Even had Cheryl Hole sued breach of contract claim and the award of attorney fees, on behalf of her daughter, she presented no evidence that but affirmed the negligent hiring judgment and the com- the driving instructor actually engaged in inappropriate pensatory and punitive damages. S.W.3d , The behavior--indeed, Ronald Hole conceded in his trial tescourt of appeals reasoned that Hole sustained harm in the timony that he does not know that anything illegal hapform of the un-refunded cost of the driving course, and pened, but rather just thought the situation was inapprothat Wansey's negligent hiring practices proximately priate. Hole also presented no evidence that proper hiring caused those damages. We disagree. and supervision policies would have prevented the incident , or that her daughter suffered any harm. Rather, the Though we have never expressly set out what duty only harm presented in this case was the purely economan employer has in hiring employees, or said that a negic harm--caused to Cheryl as an indirect result of the ligent hiring claim requires more than just negligent hiralleged incident--of the loss of the driving course tnition.

ing practices, there is a broad consensus among Texas Besides being an indirect, attenuated harm, the loss of courts that such a claim requires that the plaintiff suffer the tnition was harm to the subject matter of the contract some damages from the foreseeable misconduct of an between the Holes and Wansey, which is not recoverable employee hired pursuant to the defendant's negligent in tort. 1 See Sw. Bell Tel. Co. v. DeLanney, 809 S. W.2d practices. See Brown v. Swett & Crawford of Tex., Inc., 493, 494 (Tex. 1991); Sterling Chems., Inc. v. Texaco 178 S. W.3d 373, 384 (Tex. App.--Houston [1st Dist.]

Inc., 259 S.W.3d 793, 796 (Tex. App.--Houston [1st 2005, no pet.) [**4] ("To prevail on a claim for negli-

Dist.] 2007, pet. denied) ("Simply stated, under the ecogent hiring or supervision, the plaintiff is required to nomic loss rule, a duty in tort does not lie when the only establish not only that the employer was negligent in injury claimed is one for economic damages recoverable hiring or supervising the employee, but also that the emunder a breach of contract claim. 11 ) , ployee committed an actionable tmi against the plaintiff ."); Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex.

The court [**6] of appeals found the evi-

App, --San Antonio 1999, no pet.) overruled in part on dence legally insufficient to support the jury's other grounds by Hoffinann-La Roche Inc. v. Zeltwanger, breach of contract finding, and Hole did not ap-

144 S. W.3d 438, 447-48 (Tex. 2004); Mackey v. U.P. peal that finding to this Court. Enters., Inc., 935 S.W.2d 446, 459 (Tex. App.--Tyler 1996, no writ). We have explicitly established this re- A negligence finding requires a duty, breach, and quirement in negligent [*248] entrustment cases, damages proximately caused by that breach. Doe v. Boys which are factually similar to negligent hiring claims. Clubs., 907 S.W.2d 472, 477 (Tex. 1995). Because Hole Schneider v. Esperanza Transmission Co., 744 S, W.2d presented no evidence of harm caused by an employee 595, 596 (Tex. 1987) ("[T]here must be a showing , , , hired pursuant to Wansey's hiring policies, we hold she that the [employee] driver's negligence proximately did not present legally sufficient evidence of damages caused the accident."); see also TXI Transp. Co. v. proximately caused by Wansey's alleged negligence. We Hughes, 306 S. W.3d 230, 240 (Tex. 2010) (concluding reverse the judgment of the court of appeals insofar as it that negligent hiring should have a similar requirement to affirmed the award of compensatory and exemplary negligent entrustment cases, which requires that the em- damages for negligent hiring and supervision, and render ployee's negligent conduct harm the plaintiff). judgment for Wansey. In all other respects the court of appeals' judgment is affirmed.

In this case, Hole did not present legally sufficient evidence of any harm caused by an employee of Wan- OPINION DELIVERED: June 29, 2012

APPENDIX- ''E''

Page I

LexisNexis® W AL-MART STORES, INC. and Wayne Cruickshank, Appeiiants v. Ignacio AGUILERA-SANCHEZ, Individually and as Surviving Spouse/Heir of Irene Aguilera and as Next Friend of Marina Aguilera, a Minor, Veronica Aguilera and Ignacio Aguilera, Children and Statutory Heirs of Irene Aguilera, Appellees

No. 04-02-00458-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

2003 Tex. App. LEXIS 4846

June 11, 2003, Delivered June 11, 2003, Filed

SUBSEQUENT HISTORY: Released for Publica-

Appeiiants Wai-Mart Stores, Inc. ("Wai-Mart") and tion January 27, 2004.

Wayne Cruickshank appeal the trial court's judgment Petition for review denied by Aguilera-Sanchez v.

arguing that there is insufficient evidence to support the Wal-Mart Stores, Inc., 2004 Tex. LEXIS 33I (Tex., Apr.

jury's findings, that the trial court erroneously denied 9, 2004)

their motion to transfer venue, and that the judgment Motion for rehearing on petition for review denied by improperly awards a double recovery. Because we find Aguilera-Sanchez v. Wa/-Mart Stores, Inc., 2004 Tex.

that the evidence is legally insufficient to support the LEXIS 1373 (Tex., July I6, 2004)

jury1s findings of malicious prosecution, intentional infliction of emotional distress, and negligent hiring, we PRIOR HISTORY: [*I] From the 229th Judicial reverse and render judgment in favor of Wal-Mart and District Court, Starr County, Texas. Trial Court No.

Cruickshank.

DC-95-61. Honorable Alex W. Gabert, Judge Presiding.

BACKGROUND DISPOSITION: REVERSED AND RENDERED.

Cruickshank, a loss prevention investigator for Wal-Mart had received an internal Wal-Mart report de-

COUNSEL: FOR APPELLANTS: Chad M. Forbes, scribing the infamous "Mickey Mouse" gang. This gang Lucy Haroutunian, Thomas C. Wright, The Wright Law had been shoplifting from Wal-Mart and other retailers. Firm, Houston, TX. Russeii H. McMains, Law Offices According to the report, the modus operandi [*2] of the OfRusseii H. McMains, corpus Christi, TX. gang was to use juveniles to steal the merchandise while the adults acted as look-outs. The juveniles would line FOR APPELLEES: Thomas H. Crofts, Jr., Christopher the shopping baskets with cardboard paper, place mer- A. Lotz, Crofts & Caiiaway, P.C., San Antonio, TX, chandise in the basket, and then place clothing on top of James P. Sharp, Jr., Sharp Law Firm, Houston, TX. the basket to hide the merchandise. The juveniles would then walk out with the merchandise. If the juveniles were JUDGES: Opinion by: Karen Angelini, Justice. Dis- apprehended leaving the store, the adults could flee the senting opinion by: Alma L. Lopez, Chief Justice. Sit- scene and avoid prosecution. Meanwhile, the juveniles ting: Alma L. Lopez, Chief Justice, Karen Angelini, Jus- would eventuaiiy be released from police custody withtice , Phylis J. Speedlin, Justice. out facing prosecution.

OPINION BY: Karen Angelini On the afternoon of June 15, 1994, Cruickshank observed two Hispanic juvenile males in the stationary department take colored poster paper from the shelf and OPINION line two shopping carts with the paper. Cruickshank then

Page 2 2003 Tex. App. LEXIS 4846, *

saw the juveniles push the shopping carts into the elec- Cruickshank received a call at home from the Round tronics department where they were directed by adults to Rock Police Department asking that he come in for a place merchandise into the shopping carts. As the juve- photo line-up. Using the photos from DPS, Officer Robniles attempted to leave the electronics department with ert Shumaker presented Cruickshank with a photo the merchandise, Cruickshank intercepted the juveniles line-up. From the line-up, Cruickshank identified Maria and detained them for questioning. While the juveniles Cristina Flores, Judy Martinez, Annette Perez, Carmen were being detained, all of the adults, except a man and a Solis, Felipe Rios Hernandez, and Irene Perez Aguilera woman whom Cruickshank suspected were the juveniles' (the plaintiff in the underlying lawsuit). Cruickshank parents, [*3] left the store. Cruickshank interrogated then prepared a second, much more detailed statement in the juveniles in a back room in front of these "suspected 11 which he names all of the adults who aided the juveniles. parents; however, the "suspected 11 parents and the juveniles all denied knowiug one another. Cruickshank then On the day the juveniles were arrested, Judy Martinez , also identified as a suspect by Cruickshank, had called the Round Rock Police Department. Sergeant Jack Abbott was dispatched to the store. When Abbott ar- gone to the Round Rock police station and attempted to rived, the "suspected" parents left the store. The man left claim the juveniles. Officer Abbott told her that she needed to come back with proof that the juveniles bein a black Chevrolet Blazer while the women departed in longed to her. On the same day that Cruickshank made an orange Chevrolet.

the photo identifications, Martinez was driving back According to Cruickshank, there were five security from Houston with the necessary proof for one of the cameras in the electronics department. Two cameras in juveniles. The guardian of the other juvenile was Irene the ceiling were not working. Two camcorders on the Aguilera1s mother. Because Aguilera 1s mother was elback aisle acted as security cameras and were placed at derly and disabled, Aguilera accompanied her mother to shoulder level. The final camera was in the ceiling and Round Rock to pick up the juvenile. They both rode with had a view of the cash register shooting down the front [*6] Martinez. When the threesome arrived at the juveaisle of the electronics department. Although Cruick- nile detention facility, Officer Abbott received a call shank testified at trial that he had not reviewed the vide- informing him that they were there. Now armed with otape from this final camera, he admitted that he would Cruickshank's identifications and written statements, have been able to see the shoplifters had he watched it. Abbott acquired arrest warrants for Aguilera and Mar- Cruickshank testified that he gave Abbott the only vide- tinez. Aguilera and Martinez were arrested at the detenotape showing the incident and that he did not make a tion center. Aguilera was in jail for a month before her copy. However, at trial, Abbott could not remember re- family could accumulate the money for her bail. Acceiving a videotape. Moreover, although [*4] Wal-Mart cording to Aguilera, she was physically assaulted during policy requires employees to document the distribution this time in jail. After she made bail, she was under of such a vid.eotape to the police department in an evi- house arrest. As a result of her arrest and detention, dence log, Cruickshank failed to log the distribution of Aguilera developed post-traumatic stress disorder. The this videotape to the Round Rock Police Department. District Attorney's office later dismissed the charge of engaging in organized criminal activity against her. At At 6:00p.m. on the evening of the incident, Cruicktrial , the mailman responsible for delivering the mail to shank prepared a voluntary statement for the police in Aguilera's home testified that Aguilera met him at the which he affirms that he observed two Hispanic juvenile door of her Houston home on June 15, 1994 and could males remove merchandise from the shelves; he also not have been in Round Rock committing shoplifting.

affirms that he saw a Hispanic female aid the juvenile Aguilera also testified that she was at home on the day in males. Two days after the juveniles were taken into cus- 1 question.

tody, Abbott met with Detective Hamby, an officer with the Houston Police Department, John Smith, a Wal-Mart I Because Aguilera died before trial, her depoemployee with their Investigative Task Force, and Steve sition testimony was read into the record.

Vina, another loss-prevention employee with Target. Detective Hamby, who had been investigating this [*7] Aguilera filed suit against Wal-Mart and 11 Mickey Mouse11 gang, had a list of suspects, along with Cruickshank, alleging claims of malicious prosecution, their drivees license numbers and/or Texas Identification intentional infliction of emotional distress, and negligent Card Numbers. Using Hamby's list of suspects, Abbott hiring. At trial, the jury found that Wal-Mart and called the Texas Department of Public Transportation Cruickshank maliciously prosecuted Aguilera and intenand requested copies of the photographs on the driver's tionally inflicted emotional distress upon her. The jury licenses and identification cards for these suspects. Ab- also found that Wal-Mart was negligent in its hiring of bott then retrieved the photographs from the Austin [*5] Cruickshank. Based upon the affirmative liability findoffice of the DPS. ings as to the malicious prosecution and intentional in-

Page 3 2003 Tex. App. LEXIS 4846, *

fliction of emotional distress claims, the jury awarded S.W.2d 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). The actual damages in the amount of $ 6.5 million. Based probable cause inquiry asks whether a reasonable person upon its finding of negligent hiring, the jury awarded an would believe a crime had been committed, given the additional $ 6.5 million in actual damages. The jury also facts as the defendant honestly and reasonably believed assessed$ 3,700 in exemplary damages against Cruick- them to be before the criminal proceedings were instishank and $ I in exemplary damages against Wal-Mart. tuted. Id. The question is not what the actual facts were, The final judgment awards plaintiffs approximately $ 20 but what the [* 10] defendant honestly and reasonably million. Wal-Mart and Cruickshank appeal. believed the facts to be. Closs v. Goose Creek Canso/.

ISD, 874 S.W.2d 859, 877 (Tex. App.--Texarkana 1994, STANDARD OF REVIEW no writ). When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact is charged In their first three issues, Wal-Mart and Cruickshank with resolving conflicts in the evidence to determine if contend that there is legally and factually insufficient probable cause exists. Richey, 952 S. W.2d at 518. If the evidence to support the jury's findings on malicious facts are uncontested, then the question of whether deprosecution , intentional infliction of emotional distress, fendant acted based upon probable cause becomes a and negligent hiring. In reviewing a "no [*8] evidence"

question of Jaw to be decided by the court. Id.

issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all Appellees argue that Cruickshank acted without evidence and inferences to the contrary. Bradford v. probable cause because he unreasonably failed to review Vento, 48 S. W.3d 749, 754, 44 Tex. Sup. Ct. J. 655 (Tex. the Wal-Mart videotape that he admits would have 2001). If there is more than a scintilla of evidence to shown the perpetrators of the crime. While it is true that support the finding, the finding will be upheld. Formosa Cruickshank could have reviewed the videotape to con- Plastics Corp. USA v. Presidio Engineers & Contrac- firm the identity of the suspects, the proper inquiry is not tors, Inc., 960 S.W.2d 41, 48, 41 Tex. Sup. Ct. J. 289 whether Cruickshank was negligent in failing to view the (Tex. 1998). In reviewing a factual sufficiency point, we videotape; the proper inquiry is whether a reasonable are required to weigh all of the evidence in the record. person would have believed that Aguilera had committed Tex. Dep't of Mental Health & Mental Retardation v. the offense of shoplifting. It is undisputed that Cruick- Rodriguez, 63 S. W.3d 475, 480 (Tex. App.--San Antonio shank witnessed individuals shoplifting and that after 2001, pet. denied). Findings may be overturned only if looking at the picture of Aguilera [*II] in the photo they are so against the great weight and preponderance of line-up, he thought that Aguilera was the woman he saw the evidence as to be clearly wrong and unjust. Id. aiding the juveniles. These undisputed facts amount to probable cause.

MALICIOUS PROSECUTION Appellees also argue that there is evidence of proba-

There are seven elements of a malicious prosecution ble cause because the jury could infer that Cruickshank claim in Texas: (1) the commencement of a criminal withheld the videotape from the police. It is immaterial, prosecution against the plaintiff; (2) initiation or pro- however, to the probable cause inquiry that the defendant curement of the prosecution by the defendant; (3) termi- did not fully and fairly disclose all material information. nation of the prosecution in the plaintiffs favor; (4) the In Richey v. Brookshire Grocery Co., 952 S.W.2d 515, plaintiffs innocence; (5) the lack of probable [*9] cause 519, 40 Tex. Sup. Ct. J. 839 (Tex. 1997), the Texas Sufor the proceedings; (6) malice in filing the charge; and preme Comt held that failing to fully and fairly disclose (7) damage suffered by the plaintiff. Richey v. Brook- all material infmmation and knowingly providing false shire Grocery Co., 952 S.W.2d 515, 517, 40 Tex. Sup. Ct. information to the prosecutor are relevant to the malice J. 839 (Tex. 1997). According to Wal-Mart and Cruick- and causation elements of a malicious prosecution claim shank, there is legally and factually insufficient evidence but have no bearing on probable cause .... The probable (!) that Cruickshank initiated or procured Aguilera's cause inquiry asks only whether the complainant reaprosecution , (2) that the criminal case terminated in sonably believed that the elements of a crime had been Aguilera's favor, (3) that Cruickshank lacked probable committed based on the information available to the cause, and (4) that Cruickshank acted with malice. We complainant before criminal proceedings began. When a hold that there is legally insufficient evidence that complainant reasonably believes a crime has occmred; Cruickshank lacked probable cause. the reasonableness of that belief is not negated by the failure to fully disclose all relevant facts to the officer.

In the context of malicious prosecution, probable Thus, the extent [*12] of the disclosure to the prosecucause is defined as the existence of those facts and cirtor is not probative of lack of probable cause, but rather cumstances that would excite a belief in a reasonable indicates whether the complainant may have acted with person, acting on the facts within his knowledge, that the person charged was guilty of a crime. Akin v. Dahl, 661

Page 4 2003 Tex. App. LEXIS 4846, *

malice or may have, by knowingly providing false· in- trespassing charges against Vento if he returned. Id. at formation, caused the prosecution. 758. Bradford did not inform the police that there was a dispute over the ownership of the store. See id. The su-

There is, therefore, legally insufficient evidence to· preme court held that Bradford's conduct was not exsupport the jury's finding of lack of probable cause. We treme and outrageous, noting that Bradford was trying to sustain this issue.

quell the disturbance in the mall, which he was within his legal rights to do. Id. The court emphasized, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Although Bradford could certainly have given the police more information than he did, his failure to do so Additionally, Wal-Mart and Cruickshank argue that was not extreme and outrageous. By responding to the there is no evidence to support the jury's finding on inpolice officer1s question, Bradford was merely exercising tentional infliction of emotional distress. The elements of his rights as mall manager in a permissible way; without a cause of action for intentional infliction of emotional more his behavior does not amount to extreme and outdistress are (1) that the defendant acted intentionally or rageous conduct. [*15] 1d. at 759.

recklessly, (2) that the defendant's conduct was extreme and outrageous, (3) that the defendant's conduct was di- Here, like Bradford, Cruickshank was merely exerrected at the plaintiff or at a third person in the plaintiffs cising his legal right, in this case, his right to report that a presence, (4) that the defendant's conduct proximately crime had occurred. And, like Bradford, while Cruickcaused the plaintiff emotional distress, and (5) that the shank could have reviewed the videotape to be cet1ain of emotional distress suffered by the plaintiff was severe. his identification and could have given the police the Morgan v. Anthony, 27 S. W.3d 928, 929, 43 Tex. Sup. Ct. videotape, his failure to do so does not amount to ex- J. 1172 (Tex. 2000) (per curiam). treme and outrageous behavior. We decline to hold that simply failing to review a videotape and failing to give According to Wal-Mart and Cruickshank, there is no the videotape to the police is conduct so extreme and evidence that [*13] Cruickshank's conduct was extreme outrageous as to go beyond all possible bounds of deand outrageous. Whether a defendant's conduct is 11 excency . As such, we hold that there is legally insufficient treme and outrageous" is a question oflaw. Bradford, 48 evidence to support the jury's finding that Cruickshank's S. W.3d at 758. The mere fact that a defendant's conduct conduct was extreme and outrageous. We sustain this is tortious or otherwise wrongful does not, standing issue.

alone, necessarily render it nextreme and outrageous, 11 Id. Instead, to be "extreme and outrageous," conduct must be 11 NEGLIGENT HIRING SO outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be Wal-Mart and Cruickshank also argue that there is regarded as atrocious, and utterly intolerable in a civi- no evidence to support the jury's negligent hiring finding. lized community." Jd. (citation omitted). Claims against an employer for negligent hiring, supervising , training, or retaining an employee are based on Appellees respond that Cruickshank's conduct was the theory of direct liability--not vicarious liability. Laextreme and outrageous because it is outrageous 11 for a Bella v. Charlie Thomas, Inc., 942 S. W.2d 127, 137 n.9 person with the training, and vested with the authority, (Tex. App.--Amarillo 1997, writ denied). The elements of responsibility, and power of Cruickshank to withhold a cause of action [*16] for negligently hiring, supervisexculpatory information from the police and utterly fail ing, training, or retaining an employee are the following:

to review that information himself when levying an alle-

(!) the employer owed the plaintiff a legal duty to hire, gation that was certain to result in the arrest of another supervise, train, or retain competent employees; (2) the human being, and likely to result in lengthy incarceraemployer breached that duty; and (3) the breach proxition .n mately caused the plaintiffs injury. !d. at 13 7. However, In Bradford v. Vento, 48 S. W.3d 749, 44 Tex. Sup. the employer cannot be held liable if the employee does Ct. J. 655 (Tex. 2001), Taylor and Vento, partners of a not commit an actionable tort recognized under common sports memorabilia store had a dispute over whether law. Gonzales v. Willis, 995 S. W.2d 729, 739-40 (Tex. [*14] Taylor had sold the store to Vento. On separate App.--San Antonio 1999, no pet.). As such, negligent occasions, each partner told Bradford, the manager of the hiring is a dependent tort. Id. Here, there is no evidence mall in which the store was located, that he was the cur- of an actionable tort committed by Cruickshank. We, rent owner of the store. One day, Taylor and Vento were therefore, sustain this issue. in a heated argument in the store when one of them called the police. According to Vento, when asked by the OTHER ISSUES police who owned the store, Bradford told the police that Taylor owned the store and threatened to file criminal

Page 5 2003 Tex. App. LEXIS 4846, *

Wal-Mart and Cruickshank also complain that the the defendant's decision to prosecute are disputed, the trial court erroneously denied their motion to transfer trier of fact must weigh the evidence and resolve con-

1

venue and that the judgment improperly awards double flicts to determine if probable cause exists, as a mixed recovery. 2 Because we have sustained Wal-Mart and question of law and fact." !d. The facts in this case could Cruickshank's first three issues, we need not reach these not be more clearly in dispute. Cruickshank identified other issues. Aguilera as being involved in a theft offense. Aguilera testified that she was not present at the scene and had an 2 Appellees concede in their brief that the alibi to support her testimony. judgment does improperly award them double "Once [the] opposing parties have entered into a recovery.

factual contest on the issue of probable cause, a factual issue is [*19] created for resolution by the trier of fact."

[*17] CONCLUSION Akin v. Dahl, 661 S.W.2d 917, 920,27 Tex. Sup. Ct. J. 23 As there is legally insufficient evidence to support (Tex. 1983). "This is the cornerstone of our judicial systhe jury's findings on malicious prosecution, intentional tem." Id. 111When the facts are in controversy the question infliction of emotional distress, and negligent hiring, we of probable cause must necessarily go to the jury, and reverse the judgment of the trial court and render judg- then the court must give such instruction as will enable ment in favor ofWal-Mart and Cruickshank. them to draw the correct conclusion from the facts as they may find them and the law thus given."' !d. (quoting Karen Angelini, Justice Landa v. Obert, 45 Tex. 539, 543 (Tex. 1876)) (citations omitted).

DISSENT BY: Alma L. Lopez In the context of a malicious prosecution cause of DISSENT action, probable cause is defined as the existence of facts and circumstances that would excite a belief in a reason-

DISSENTING OPINION able person, acting on the facts within his knowledge, that the person charged is guilty of a crime. Richey, 952 In finding that the evidence is legally insufficient to S.W.2d at 517. "The probable cause inquiry asks only support the probable cause element of the appellees' mawhether the complainant reasonably believed that the licious prosecution claim, I believe the majority misapelements of a crime had been committed based on the plies the applicable standard of review. For this reason, I information available to the complainant before criminal respectfully dissent.

proceedings begin." !d. at 519.

In conducting a legal sufficiency review, we review The key to the jury affirmatively finding no probable the evidence in a light that tends to support the finding of cause in this case is based on the facts it determined the disputed facts and disregard all evidence and infer-

[*20] to be within Cruickshank's knowledge. Cruickences to the contrary. Lee Lewis Constl·., Inc. v. Harrishank testified that a videotape existed that showed every son, 70 S. W.3d 778, 782, 45 Tex. Sup. Ct. J. 232 (Tex.

person involved in the offense. ' Cruickshank testified 2001). If more .than a scintilla of evidence exists, the that he gave that videotape to Officer Abbott, but Officer evidence is legally sufficient. !d. More than a scintilla of Abbott did not recall receiving the videotape. No evievidence exists if the evidence furnishes some reasonable dence was introduced to prove that Cruickshank combasis for differing conclusions by reasonable minds pleted a log showing that he had given Officer Abbott about a vital fact's existence, !d. at 782-83. Because a the videotape in accordance with company policy. Furcourt of appeals [*I 8] is not a fact finder, we may not thermore, neither the evidence receipt Cruickshank alpass upon a witness's credibility or substitute our judglegedly received from Officer Abbott nor the videotape ment for that of the jury, even if the evidence would was produced at trial. From this evidence, the jury could make a credibility determination that Cruickshank did clearly support a different result. Maritime Overseas not give Officer Abbott the videotape.

Corp. v. Ellis, 971 S. W.2d 402, 406-07, 41 Tex. Sup. Ct. J. 683 (Tex. 1998).

I Q: So, there's no question but had you looked During oral argument, counsel for the appellants re- at the videotape you could have compared it be.-

peatedly stated that the issue of probable cause was a cause you know you're positively sure of your question of law. "Whether probable cause is a question photo identifications, they would have jibed. of law or a mixed question of law and fact depends on A: Yes, sir.

whether the parties dispute the underlying facts." Richey v. Brookshire GroceiJ> Co., 952 S.W.2d 515, 518, 40 Tex. Cruickshank testified that he did not watch the vide- Sup. Ct. J. 839 (Tex. 1997). "When the facts underlying otape, but he also knew that his job performance was

Page 6 2003 Tex. App. LEXIS 4846, *

based upon the number of apprehensions [*21] he made 2 Interestingly, Cruickshank received a comand the dollar value of the prevented theft. ' From this mendation letter and a raise for his actions relatevidence , the jury could make a credibility determination ing to the theft offense. that Cruickshank had watched the videotape and infer The reason the jury could [*23] have chosen to that the videotape would not have supported Cruicksimply disbelieve that Cruickshank honestly and reasonshank 's identification of Aguilera. This inference is bolably believed that Aguilera was present during the ofstered by the evidence that Cruickshank identified at fense could not be more heavily documented in the recleast one other individual as being involved in the oford . Cruickshank lied at his deposition about graduating fense who was not prosecuted based on alibi testimony.

from high school. Cruickshank lied at his deposition Based on the evidence as a whole, the jury could have ~bout receiving certain awards and medals while serving disbeheved that the true facts within the knowledge of m the Navy. Cruickshank lied about needing authoriza-

Cruickshank would excite a belief in a reasonable person tion from the President of the United States before disthat Aguilera was guilty of a Ciime. See Akin, 661 S. I¥. 3d closing the reason for receiving one of those awards.

at 921 (holding evidence supported jury finding of no Cruickshank admitted that he lied on his Wal-Mart appr ?bable cause where conflicting evidence was presented plication. Cruickshank's initial statement to the police with regard to whether a reasonable basis in the known Identified only one other female assisting two juveniles facts supported a belief that plaintiff was mentally inwith the theft by placing clothes on top of merchandise competent even though physician records supported in a shopping cart. Cruickshank did not identify fmdmg of mental incompetency); San Antonio Credit Aguilera's alleged role in acting as a lookout until his Union v. O'Connor, 2002 Tex. App. LEXIS 8406, No.

second statement was taken two days later. The jury 04-00-00714-CV, 2002 WL 31662054, at *7-8 (Tex.

could have questioned whether Cruickshank honestly App.--San Antonio Nov. 27, 2002, no pet. h.) (holding believed that the additional individuals identified in his JUry could have found that complainant's belief [*22]

second statement were present given Cruickshank's failthat plaintiff misappropriated loan funds was unreasonaure to initially mention them and given that Cruickble based on conflicting evidence); First Valley Bank of shank's performance was evaluated in part based on the Los Fresnos v. Martin, 55 S. I¥. 3d 172, 184 (Tex.

nmnber of apprehensions he made. Finally, the jury App.--Corpus Christi 2001, pet. filed) (holding evidence [*24] could have believed that Cruickshank lied about supported no probable cause finding where evidence was giving Officer Abbott the videotape and about not viewpresented that defendant could not have reasonably being the videotape. In sum, the jury had every reason to lieved that plaintiff committed crime); King v. Graham, find that Cruickshank's testimony about the facts within 47 S. I¥. 3d 595, 607-08 (Tex. App.--San Antonio 2001, no his knowledge was false and that the facts that were pet.) (holding more than a scintilla of evidence existed to within Cruickshank's knowledge would not excite a besupport finding of no probable cause where evidence was lief in a reasonable person that Aguilera was guilty of a offered to show that defendant's version of the facts was crime.

inaccurate). "While the jury was not required to believe [Aguilera's] story and could have rejected it, it was cer- Because I believe the majority passes upon the wittainly within the jury's province to accept it." Richey, 952 nesses' credibility and substitutes its judgment for that of S.W'.2d at 521 (Comyn, J., dissenting). the jury, I respectfully dissent.

Alma L. Lopez, Chief Justice

APPEND IX - ''F''

Page I

LexisNexis® James GONZALES, Appellant and Olga WILLIS, Appellant/Appellee v. Olga WILLIS, Appellee/Appellant and TOM BENSON CHEVROLET COMPANY, INC., Appellee

No. 04-97-00949-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

995 S. W.2d 729; 1999 Tex. App. LEXIS 3014

April 21, 1999, Delivered April 21, 1999, Filed

PRIOR HISTORY: [**I] From the 73rd Judicial [*732] OPINION ON APPELLEE'S MOTION FOR District Court, Bexar County, Texas. Trial Court No. REHEARING 96-CI-04401. Honorable Carlos C. Cadena, Judge Pre-

Appellee Tom Benson Chevrolet Company's motion siding.

for rehearing is granted. The prior opinions and judgment This Qpinion Substituted on Grant of Rehearing for in this appeal, issued February 10, 1999, are withdrawn Withdrawn Opinion of February 10, 1999, Previously and the following opinion and judgment are substituted Reported at: 1999 Tex. App. LEX!S 838. therefor.

DISPOSITION: REVERSED AND RENDERED IN INTRODUCTION PART; AFFIRMED IN PART Olga Willis sued James Gonzales and his employer, Tom Benson Chevrolet Company, Inc. (Benson), claiming that Gonzales made sexual advances toward her COUNSEL: FOR APPELLANT: Tina Torres, Rob while ostensibly assisting her in obtaining a job at Ben-

Hughes, Jr. LAW OFFICES OF PETER TORRES, JR., son. She asserted claims for intentional infliction of P.C., San Antonio, TX. Jeffrey R. Davis, OSHEROW & emotional [**2] distress, sexual harassment, sexual DAVIS, P.C., SAN ANTONIO, TX. Thomas H. Crofts, discrimination, and negligent hiring, retention, training, Jr., Ellen B. Mitchell, CROFTS, CALLAWAY & JEFand supervision. At trial, she prevailed only on the inten-

FERSON, P.C., SAN ANTONIO, TX.

tional infliction of emotional dist-ress claim. The court entered a judgment against Gonzales on this claim for $ FOR APPELLEE: Humberto G. Garcia, John D. Me-

55,000. Gonzales appeals this pm1ion of the judgment.

reness, JOHNSON, CURNEY, GARCIA, WISE & Willis appeals the trial court's decision to direct a verdict FARMER, P.C., San Antonio, TX.

on her negligence claims. Although Gonzales's behavior could be considered extreme and outrageous, Willis did JUDGES: Opinion by: Tom Rickhoff, Justice. Concurnot establish that she suffered severe emotional distress.

ring opinion by: Karen Angelini, Justice, joined by Sarah We therefore reverse the portion of the judgment award-

B. Duncan, Justice. Sitting: Tom Rickhoff, Justice, Sarah ing Willis $ 55,000, and render judgment that she take B. Duncan, Justice, (concurring in the judgment only). Karen Angelini, Justice (concurring in the judgment onnothing on the intentional infliction of emotional distress claim. Because Gonzales did not commit an actionable ly).

tort against Willis, her claims for negligent hiring, reten-

OPINION BY: TOM RiCKHOFF tion, training, and supervision are precluded as a matter of law. We therefore affirm the portion of the judgment ordering that Willis take nothing on these claims.

OPINION

Page 2 995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, **

FACTS When asked whether she got up from the table at that point, she responded:

Hoping to obtain a job selling cars, Willis contacted an acquaintance who was a sales manager at Benson. He I did not. I was embarrassed. I'm trying to keep, you told her she should talk to James Gonzales, another know, nice with him, but I also show him that I was very, Benson employee, about [**3] getting a job there. At very uncomfortable [with] what he's telling me. the time of the events giving rise to this suit, Gonzales Although Gonzales initially agreed to take Willis had been twice fired and twice rehired by Benson. One back to E-Z Motors, he nevertheless continued his sexual time he was fired for bringing a pornographic movie to advances:

work to show at a meeting of salesmen. He was also reprimanded for pinching a female co-worker's buttocks. He say, "Come on. You1re not going to work any- The second time he was fired, a notation was made on more. Let's go stay and dance. I would like to his record that he was not rehireable. He was rehired close--dance with you real close. That way, I can feel anyway. your tits close to me. I want to see you. I want to feel your waist," and, you lrnow, "Let1s go stay." And I say, During their first meeting, Gonzales informed Willis "No, I can't stay. I have to go work. I have long hours the that she could not be hired at that time because she had next day; and besides that, they're going to close the no experience selling cars. He suggested that she seek a dealer, and I will not be able to get my car out of the job at a used car lot called E-Z Motors. After Willis sedealer --out of the parking lot."

cured a job at E-Z Motors, she kept in touch with Gonzales : she submitted [*733] an application and re- Finally, after this protestation, Gonzales drove Wilsume , informed him when she made her first sale, and lis back to E-Z Motors. She testified that on the way sought advice regarding problems she encountered at back to E-Z Motors: E-Z Motors. During these conversations, Gonzales sug-

I didn't say much. I was so embarrassed. I can't regested that she might be able to obtain a job at Benson if member exactly what we talked about, so--l remember Benson has an opening. One day, Gonzales invited Wilwhen we get to the lot, he--! tell him--! tell him, "Please, lis to dinner to discuss a potential job. Willis accepted you know, don't [**6] keep these conversations with the invitation, and Gonzales, driving a Benson automome anymore." He goes, "Okay, that's fine." And that was bile, picked her up that night at E-Z Motors. Willis testiit .

fied that on the way to dinner, [**4] he commented that she had "baby legs" and asked if he could touch Willis described her feelings at the end of the eventhem . Willis said "no" and tried to change the topic of ing as follows: conversation. During the remainder of the drive, 'they discussed selling cars. They arrived at the restaurant, a I [felt] a little bit uncomfortable, but I'm trying ... to barbecue place, and resumed their discussion about sell- do my best, you know, not to think negative about him ing cars. Willis testified that the following exchange oc- because I was looking at him as a person that was going cun·ed after their dinner was served: to help me to get a job.

So he starts getting his hands dirty [with barbecue Sometime after their dinner together, Gonzales called Willis, told her he had won a trip to sauce], and he say, "You know, I'm thinking about something." I said, "What are you thinking about?" He Acapulco, and invited her along. When Willis degoes , 1Tm thinking about, you know, my fingers are all clined the invitation, Gonzales told her, 11 0ne of my with barbecue sauce. If you will let me stick barbecue dreams if I take you to Acapulco is you--seeing sauce in finger--my finger in your pussy to see, you you--seeing you in the shower, you know, taking a bath. know, how it's like. And I'm sure when I'm telling you I promise you I will not touch you. I will not do anythis , you're getting wet," and said, "I can see your tits thing, just--but watch you there in the bathroom taking a getting hard," you know. bath." Willis informed Gonzales that she doesn't "take And then after that, you know, "Go bring by [sic] those trips." Undeterred, Gonzales called [*734] her cock in your pussy and kiss you all over and, oh, it back to ask again if she would go with him and again would be a lot of fun" and all kind of stuff. And I say, Willis told him no. "Would you please stop? You know, I don't think this is The next time Willis saw Gonzales he stopped by nice to tell me that. 11 the dealership where she worked and invited her to lunch And, you know, constantly I'm trying to change with this lure: "We're going to talk about a job. I think I conversation ... , and so I feel uncomfortable. So I ask have something for you." Willis told him she would go if him, [**5] 11 Can you--" you know, "Can we go back?"

he promised that he would not [**7] "say nasty things" to her. Gonzales responded, "I promise you. rt•s going to And he goes, "Sure."

Page 3 995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, **

be strictly about a job." Once he had Willis away from talk to older people anymore. I'm afraid to get close to the dealership, however, he disregarded his promise: them. I'm afraid to believe in people again. I can't.

We ordered the food and everything, and he told me, Willis further testified that when her co-workers "You know, I'll help you if you help me." He started conveyed Gonzales 1s 11 message": talking nasty again about me, about his dreams about They made me feel dirty. I even got home, took a sitting on the chair dreaming about me, about getting shower, crying. I mean, I cannot sleep. Every single time hard, about getting wet, about--dreaming about, you I go to sleep, I can listen to voices. I can listen to his know, the way I take my bath, about sticking his finger voice talking nasty with me.

in my pussy, and swallow the finger, and touching my tits, because he always tell me that I have beautiful tits. After the event involving her co-workers, Willis resolved to take action against Gonzales:

And I say, "Do you know what? You promised me something, and you did it again. And, you know, I don't That was the last thing I can took [sic], because I want to hear about it." .... He say, "I'll help you if you feel like he was making everybody lose respect for me. I help me." And I say, "I don't need your help then," and I work so hard for people at that particular dealer to beasked him to take me back. lieve in me and respect me, for him to come to them and say nasty things.

Willis testified that her understanding of the comment , "I'll help you if you help me," was that she had to [*735] And then later on, I was afraid that some- "pleasure himu in order to get a job. When he returned body else was going to come to that office and say her to the dealership, she informed him, "not to bother something nasty to me. And that really needs to stop. me, not to call me anymore, that I don't want to hear Accordingly, Willis filed an administrative comabout him anymore." In spite of this plea, Gonzales plaint against Gonzales and Benson. After [**10] recalled [**8] her again to talk about her job. Willis receiving a "right to sue" letter from the Texas Commisminded him that she had asked him not to call her anysion on Human Rights, she brought this suit.

more and then hung up on him.

Thus thwarted from having direct contact with Wil- GONZALES'S APPEAL lis, Gonzales nevertheless managed to inject himself into In Twyman v. Twyman, 855 S.W.2d 619, 621-22 her life. One day, he went to lunch with some of her (Tex. 1993), our supreme court adopted the tort of intenco -workers. When the co-workers returned from lunch, tional infliction of emotional distress as set out in section they told Willis that Gonzales asked them to send her "a 46(1) of the Second Restatement of Torts. To recover for message" that he was still waiting for her to go to Acathis tort, the plaintiff must prove: I) the defendant acted pulco with him and he was still dreaming about her.

intentionally or recklessly; 2) the conduct was extreme Gonzales testified that his encounters with Willis and outrageous; 3) the defendant's actions caused the were purely professional, and that he never made a sexu- plaintiff emotional distress; and 4) the resulting emotional advance toward her. al distress was severe. See Twyman, 855 S. W.2d at 621.

Gonzales argues that the evidence is legally and factually When asked how Gonzales's conduct had affected insufficient to establish the first, second, and fourth eleher , Willis testified:

ments.

Every single time I remember things like this com-

In reviewing legal sufficiency or 11 no evidencen aring back over and over, it hurts me. He made me feel, guments, we must consider the evidence and draw all you know--

inferences in the light most favorable to the verdict. See And I even think about, "What did I do wrong for Southwestern Bell Mobile Sys., Inc. v. Franco, 971 him to talk to me this way?" Because everybody, every S. W.2d 52, 54 (Tex. 1998). In reviewing factual suffisingle person I work for, they always respect me, any ciency or "insufficient evidence 11 arguments, we must job, any position. I work between a lot of mens [sic], and consider and weigh all the evidence, and should set aside I'm the only girl; and nobody talk anything nasty ... in the verdict only if it is so contrary to the overwhelming front of me. [**11] weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S. W.2d 175, 176 (Tex.

And when I met Mr. Gonzales--he is an older per-

1986).

son--my education was that older people [**9] needs to be respected; and I always like to be close to older peo-

1. Extreme and Outrageous Conduct ple, because the older people is the people w\lo teach you best. And when he started talking to me, it hurts me be- To be actionable, conduct must be SO outrageous in

11

cause I didn't know what I did wrong; and I was afraid to character, and so extreme in degree, as to go beyond all

Page 4 995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, **

possible bounds of decency, and to be regarded as atro- tantamount to saying that no reasonable person, undercious , and utterly intolerable in a civilized community. 11 standing the context, would exclaim, uoutrageous! 11 upon RESTATEMENT (SECOND) OF TORTS§ 46 cmt. d 1 overhearing Gonzales s obviously unwelcome vulgari-

(1965). It has been noted that courts have little guidance ties. See RESTATEMENT§ 46 cmt. d. At a minimum, in deciding when conduct crosses the line from the cate- reasonable minds could disagree regarding whether gory of merely rude and offensive behavior to the cate- 1 Gonzales s conduct was extreme and outrageous. Theregory of extreme and outrageous conduct, and that the test fore, it was for the jury--the representatives of the comis essentially a subjective one. See Twyman, 855 S. W.2d munity and the proper arbiters [**14] of what exceeds at 629 (Hecht, J., concurring and dissenting); GTE 11 the bounds of decency, 11 and what is uatrocious, and Southwest, Inc. v. Bruce, 956 S. W.2d 636, 646 (Tex. utterly intolerable in a civilized community"-- to decide App.--Texarkana 1997, pet. granted). Generally, howev- this question. Id. er, 11 the case is one in which the recitation of the facts to an average member of the community would arouse his We recognize that some courts have held that conduct resentment against the actor, and lead him to exclaim, 1 similar to Gonzales s conduct was not extreme and out-

'Outrageous!"' RESTATEMENT§ 46 emf. d. The extreme rageous. See, e.g., Wilson v. Sysco Food Servs., 940 F. and outrageous character of the conduct may arise from Supp. 1003 (N.D. Tex. 1996); Gearhart v. Eye Care an abuse of a position or a relation with the victim that Ctrs., 888 F. Supp. 814 (S.D. Tex. 1995); Garcia v. An- [**12) gives the tortfeasor actual or apparent authority drews, 867 S.W.2d 409 (Tex. App.--Corpus Christi 1993, over~ the victim, or power to affect his or her interests. no writ). Other cases have held that similar conduct was See id. cmt. e. extreme and outrageous. See, e.g., Soto v. El Paso Natural Gas Co., 942 S. W.2d 671 (Tex. App.--El Paso 1997, It is for the court to determine, in the first instance, writ denied); Bruce, 956 S. W.2d at 647. None of these whether the defendant's conduct may reasonably be recases is binding on us; their holdings merely provide garded as so extreme and outrageous as to permit recovproof that the extreme and outrageous standard is someery . See Wornick Co. v. Casas, 856 S. W.2d 732, 734 what amorphous.

(Tex. 1993); RESTATEMENT§ 46 cmt. h. But when reasonable minds could disagree, it is for the jury to de-

2. Intent or Recklessness termine whether, in a particular case, the conduct is sufficiently extreme and outrageous to result in liability. See To be liable for intentional infliction of emotional RESTATEMENT§ 46 cml. h. After evaluating the evi- distress, the defendant must have either intended to cause dence in this case, the trial judge determined that a jury the distress or acted with reckless disregard of the risk question was presented on this issue and the jury decided that he would cause such distress. See Twyman, 855 that Gonzales's conduct was extreme and outrageous. S. W.2d at 623-24. Gonzales denied that he had any intent to cause Willis pain or make her uncomfortable [**15]

Given these considerations, our task is to determine or upset. Based on this testimony, he argues that the eviwhether patiicular behavior in its surrounding context, dence is insufficient to establish intent or recklessness.

could or could not, as a matter of law, amount to extreme and outrageous conduct. The behavior at issue in this Defendants will rarely admit knowing of a substancase consists of vile sexual advances that were repeated tial certainty that their conduct would cause emotional in the face of persistent and unwaivering entreaties that distress. See 855 S. W.2d at 623. Noting this fact, the suthe perpetrator refrain from making such comments. The preme court has emphasized that juries are free to disbehavior also [**13) includes encouraging the victim's credit the defendant's protestations that no harm was inco -workers to convey indecent propositions to the victim tended and draw necessary inferences to establish intent. at her place of employment. The [*736] context in See id. In this case, not only did Gonzales deny any inwhich the advances were made is also important. Clear- tent to hurt Willis, he denied that he even engaged in the ly, Gonzales led Willis to believe that he could assist her conduct that is the subject of this action. The jury could in obtaining the job she desired at Benson. He thus ac- infer intent or at least recklessness from the nature of quired a position of power over her-- a position he used Gonzales's statements and from Willis's requests that he to subject her to his lecherousness. Considering this con- refrain from making such statements. text and the demeanor of Willis and Gonzales, the jmy could infer that Gonzales chose his victim well--a victim 3, Severe Emotional Distress reluctant to 11 make a scene, 11 a victim who would quietly endure the indignities cast upon her for fear of angering a Emotional.distress includes all highly unpleasant mental person in power or being humiliated by her co-workers. reactions, such as humiliation, embanassment, anger, To hold that this behavior cannot, as a matter of law, worry, and disappointment. See Villasenor v. Villasenor, amount to extreme and outrageous conduct would be

Page 5 995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, **

911 S.W.2d 411, 416 (Tex. App.--San Antonio 1995, no a violation of the Texas Commission on Human Rights wlit); see also RESTATEMENT§ 46 cmt. }. Act (TCHRA). Regarding this claim, the jury found that Benson failed to hire Willis because she is female and Complete emotional tranquility is seldom attainable that Gonzales sexually harassed her. But the trial court in this world, and some degree of transient and trivial granted a take-nothing judgment on this claim because [**16] emotional distress is a part of the price of living Willis's administrative complaint was not timely filed.

among people. The law intervenes only where the dis-

See TEX LAB. CODE ANN. § 21.202(a); Specialty tress inflicted is so severe that no reasonable [person]

Retailers, Inc. v. DeMoranville, 933 S. W.2d 490, 492 could be expected to endure it. The intensity and the du-

(Tex. 1996). The trial court also granted Benson's motion ration of the distress are factors to be considered in defor directed verdict on Willis's negligence claims on the termining its severity.

ground that those claims were preempted by the TCHRA. Willis argues that this ruling was erroneous.

RESTATEMENT§ 46 emf.}. Feelings of anger, depres-

B,enson argues that the finding of preemption was corsion , and humiliation are not sufficient to establish serect , or in the alternative, was harmless error.

vere emotional distress. See Villasenor, 911 S. W.2d at 417. Furthermore, conduct is not actionable as intention-

L Preemption al infliction of emotional distress [*737] merely because it may damage the plaintiffs reputation. See Dia- The TCHRA prohibits employment disclimination mond Shamrock Ref & Mktg. Co. v. Mendez, 844 S. W.2d on a number of grounds, including sex. See TEX LAB. 198, 202 (Tex. 1992). CODE ANN. § 21.051 (Vernon 1996); Perez v. Living Centers-Devcon, Inc., 963 S. W.2d 870, 872 (Tex.

Willis testified that when Gonzales made the ad-

App.--San Antonio 1998, pet. denied). It sets forth a vances toward her she was merely 11 embarrassed" and comprehensive administrative review system that a dis-

"uncomfortable. 11 She also testified that remembering crimination victim must follow before filing [**19] a what Gonzales did "hurts 11 her and makes her wonder civil action alleging violations of the TCHRA. See what she did wrong; that his conduct has affected her Schroeder v. Texas Iron Works, Inc., 813 S. W.2d 483, ability to trust people, particularly older people; that the 485-88 (Tex. 1991).

comments relayed by her co-workers made her feel dirty and made her cry; that she "cannot sleep, 11 and when she In Perez, we addressed the question of "whether the goes to sleep she hears Gonzales "talking nasty11 to her. Texas legislature intended for the TCHRA to preempt Drawing all [* *17] inferences in favor of Will is, the common law causes of action." 963 S. W.2d at 873. After most that can be said of this testimony is that it is some examining the act1s language, we stated: evidence of a highly unpleasant emotional reaction. Wil-

Notably, neither an intent to serve as an exclusive lis failed to muster any evidence from which a jury could reasonably infer that her emotional distress has been se- remedy, nor an intent to preclude common law causes of action, is contained within the stated purposes of the vere. For example, there is no indication of the intensity TCHRA. Additionally, the statute contains no provision or duration of the emotional distress. The evidence is that implies the TCHR's administrative review system therefore legally insufficient to establish severe emotionprecludes a lawsuit for common law causes of action.

al distress. Cf Gorges Foodservice, Inc. v. Huerta, 964 S. W.2d 656, 668-69 (Tex. App.--Corpus Chlisti 1997, no 963 S.W.2d at 874 (citation omitted). We further noted pet.) (testimony that plaintiffs wife temporarily ejected him from the house, that his relationship with his wife that section 21.211 of the TCHRA implies that the legislature did not intend to preempt common law causes of and children had suffered, that he was unable to concentrate , that he felt insecure about his prospects for finding action. See id. That section provides: employment, and that he was embmnssed held legally [*738] A person who has initiated an action in a insufficient). court of competent jurisdiction or who has an action Because the evidence is legally insufficient to estab- pending before an administrative agency under other law or an order or ordinance of a political subdivision of this lish severe emotional distress, we reverse the portion of the judgment that awards Willis $ 55,000 in damages state based on an act that would be an unlawful employfrom Gonzales and render judgment that she take nothing ment practice under this chapter may not file a complaint on her intentional infliction of emotional distress claim. under this [**20] subchapter for the same grievance.

TEX LAB. CODE ANN. § 21.211. Focusing on this WILLIS'S APPEAL section, we stated:

In addition to her intentional infliction [**18] of emo- Rather than preclude other causes of action that tional distress and negligence claims, Willis also alleged might arise from an employment practice made unlawful

Page 6 995 S.W.2d 729, *; 1999 Tex. App. LEXJS 3014, **

by the TCHRA, this language implies that a plaintiff prevent double recovery for single wrong), writ cannot have two bites at the apple, That is, a plaintiff denied per curiam, 758 S.W.2d 753 (Tex. 1988). cannot first sue a defendant-employer for a non-TCHRA [**22] Finally, Benson points out that three federcause of action for conduct arising from the same facts as al district court opinions, two of which are unpublished, employment discrimination and then pursue a claim of have held that the TCHRA preempts common law causes employment discrimination through the administrative of action. See Cook v. Fidelity Investments, 908 F. Supp.

review system established under the TCHRA .... This 438, 442 (N.D. Tex. 1995); Hardy v. Fleming Food Co., provision requires a plaintiff to pick a remedy and per-

1996 U.S. Dist. LEXIS 3923, No. H-94-3759, 1996 WL mits a plaintiff like Perez to pursue common law causes 145463, at *27 (S.D. Tex. March 21, 1996); Bates v.

of action that arise from the same facts as sexual harass-

Humana, Inc., 1993 U.S. Dist. LEXIS 20764, No.

ment.

SA-92-CA-432, 1993 WL 556416, at *11 (W.D. Tex. Oct. 12, 1993). Benson suggests that we should follow Perez, 963 S. W.2d at 874. After examining the language these decisions because our supreme court has held that of the TCHRA, including section 21.211, and its legislafederal decisions interpreting federal discrimination stattive history, we concluded that the TCHRA is not the utes may be instructive in construing the TCHRA. See exclusive state law remedy for conduct that violates its Specialty Retailers, 933 S. W.2d at 492. The cases cited provisions, See 963 S. W.2d at 872-75.

by Benson, however, do not interpret federal discrimina-

Based on Perez, Willis argues that the trial court tion statutes; rather, [*739] they address the purely erred by directing a verdict on her negligence causes of state-law question of whether the TCHRA preempts action. Benson responds that this case is distinguishable common law claims. Because their answer to this ques- [**21] from Perez because unlike Perez, Willis at- tion is inconsistent with our own precedent, we decline tempted to pursue both a claim under the TCHRA and to follow them. common law claims. As support for its argument, Ben-

The trial court erred by directing a verdict on Wilson focuses on our analysis of section 21.211, particulis 's negligence causes of action on the basis of preemplarly the statements that a plaintiff must "pick a remedy"

tion, and is not allowed "two bites at the apple."

The fact that Willis pursued an administrative rem- 2. Absence of Underlying Tort edy does not change the preemption analysis. Nothing in In its motion for rehearing, Benson asserts that even Perez suggests that our no-preemption holding was limif the trial [**23] comt's preemption ruling was erroited to the facts of that case. The language of section neous, the granting of the directed verdict was harmless 21.211 was merely one of the reasons we cited for conin light of our disposition of Gonzales's appeal. Benson cluding that Perez's common law claims were not argues that since Gonzales did not commit an actionable preempted. Moreover, the election of remedies provision tort against Willis, it cannot be held liable for negligently in section 21.2ll does not apply to this case because 2 hiring, retaining, training, or supervising Gonzales. We Willis did not initiate suit on her common law claims agree.

before pursuing her claim under the TCHRA. ' By exhausting her administrative remedies, Willis acted con-

2 For purposes of this discussion, there is no sistently with the legislative intent underlying the relevant distinction among negligent hiring, re-

TCHRA. See Schroeder, 813 S. W.2d at 486 (holding that tention, training, or supervision, We will refer to the TCHRA1s administrative process 11 clearly encourages all these torts collectively as "negligent hiring."

compliance through voluntary resolution, conference, conciliation and persuasion--informal processes other Although we have not found a Texas case directly than litigation;'). on point, courts in other jurisdictions have held that an employer cannot be held liable for negligently hiring au Because Willis did not recover on her claim employee unless the employee committed an actionable under the TCHRA, the common law election of tmt. See Hays v. Patton-Tully Transp. Co., 844 F. Supp. remedies rule and one-satisfaction rule are also 1221, 1223 (W.D. Tenn. 1993); Mulhern v. City of inapplicable. See Stewart Title Guar. Co. v. Ster- Scottsdale, 165 Ariz. 395, 799 P.2d 15, 18 (Ariz. Ct. App. ling, 822 S.W.2d I, 7 (Tex. 1991) 1990); Hogan v. Forsyth Count1y Club Co., 79 N.C. App. (one-satisfaction rule prevents plaintiff from ob- 483, 340 S.E.2d 116, 123-25 (N.C. Ct. App. [**24] taining more than one recovery for the same in- 1986); Louis Marsch, Inc. v. Pekin Ins. Co., 140 Ill. App. jury); Green Oaks, Ltd. v. Cannan, 749 S. W.2d 3d 1079, 491 N.E.2d 432, 437, 96 Ill. Dec. 386 (Ill. App. 128, 131 (Tex. App.--San Antonio 1987) (sole Ct. 1985). purpose of election of remedies doctrine is to

Page 7 995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, **

This rule comports with the fundamental tort principle that a person is not liable for negligence, no matter Hays, 844 F. Supp. at 1223 (citation omitted). Moreohow egregious, unless the negligence causes a legally ver, if we allowed a sexual harassment finding to supply compensable injury. See W. PAGE KEETON ET AL., the basis for recovery on a negligent hiring claim, the PROSSER AND KEETON ON THE LAW OF TORTS statutory procedures and limitations applicable to such § 30, at 165 (5th ed. 1984). In the context of negligent claims would be rendered superfluous. See, e.g., TEX hiring claims, if the employee did not commit an action- LAB. CODE ANN. § 21.201 (Vernon 1996) (requiring able tort, the plaintiff has not been injured in the eyes of exhaustion of administrative remedies); id. § 21.2585

1

the law; therefore, the employer s negligence has not (limiting available damages). ' Accordingly, negligent caused a legally compensable injury. hiring will be a viable cause of action in a sexual harassment case only if the harassment encompasses mis-

This rule is also consistent with well-settled Texas conduct that is independently actionable under the comprecedent regarding negligent entrustment claims, which mon law, such as battery or intentional infliction of emoare akin to negligent hiring claims. See Deerings West tional distress. See Hays, 844 F. Supp. at 1223.

Nursing Ctr. v. Scott, 787 S. W.2d 494, 495-96 (Tex. App.--El Paso 1990, writ denied). To prevail on a claim 3 In this case, for example, Willis was prefor negligent entrustment of a vehicle, the plaintiff must cluded from recovering on her sexual harassment establish not only that the owner was negligent in enclaim , in spite of the jury's favorable finding, betrusting the vehicle, but also that the driver's negligent cause she did not timely file a complaint with the operation of the vehicle proximately caused damage to Texas Commission on Human Rights.

the plaintiff. See Schneider v. Esperanza Transmission [**25] Co., 744 S. W.2d 595, 596 (Tex. 1987); Fidelity [**27] & Guar. Ins. Underwriters v. McManus, 633 S. W.2d 787, . We must affirm a directed verdict if the record dis-

790 (Tex. 1982); see also Rodgers v. McFarland, 402 closes a ground that establishes, as a matter of law, that S.W.2d 208, 210 (Tex. Civ. App.--El Paso 1966, writ the movant was entitled to judgment, even though the rerd n.r.e.) ("Obviously, an owner who is negligent in ground was not embodied in the motion for directed verentrusting his vehicle is not liable for such negligence dict. See Granato v. Bravo, 498 S. W.2d 499, 502 (Tex.

until some wrong is committed by the one to whom it is Civ. App.--San Antonio 1973, no writ); see also Texas entrusted."). Analogously, to prevail on a claim for neg-

Employers Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex.

ligent hiring, the plaintiff should be required to establish 1977); Connell v. Connell, 889 S:W.2d 534, 539 (Tex.

not only that the employer was negligent in hiring the App.--San Antonio 1994, writ denied). Because Willis employee, but also that the employee committed an acfailed to establish that Gonzales conunitted an actionable tionable tort against her. When this rule is applied here, it tort, her negligence claims are precluded as a matter of is apparent that Willis's negligence claims must fail. Belaw . We therefore affirm the directed verdict on these cause Willis did not present legally sufficient evidence to claims.

establish that she suffered severe emotional distress, she failed to establish that Gonzales committed an actionable Tom Rickhoff, Justice tort. Therefore, assuming that Benson was negligent in hiring, retaining, training, and supervising Gonzales, CONCUR BY: Karen Angelini Willis suffered no compensable injury as a result of this negligence. CONCUR We also note that the jury's finding that Gonzales I do not believe Gonzales's conduct was "so outrasexually harassed Willis cannot provide the basis for geous in character, and so extreme in degree, as to go Willis's negligence [**26] claims. As one comi has beyond all possible bounds of decency, and to be restated : garded as atrocious, and utterly intolerable in a civilized community." RESTATEMENT (SECOND) OF TORTS§ Sexual harassment has never been a common law 46 cmt. d (1965). I agree with all other aspects of the tort; as a cause of action, it is a ~tatutory creation. A neg-

[**28] majority opinion and therefore concur in the ligent supervision [*740] claim cannot be based solely judgment.

upon an underlying claim of sexual harassment per se, because the effect would be to impose liability on em- Karen Angelini, Justice ployers for failing to prevent a harm that is not a cognizable injury under the common law.

APPENDIX- ''G''

Page I

LexisNexis""

THE METHODIST HOSPITAL, Appellant v. JOHN GERMAN, Appellee

NO. 01-09-00925-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

369 S. W.3d 333; 2011 Tex. App. LEXIS 10215

December 29, 2011, Opinion Issued

SUBSEQUENT HISTORY: Released for Publica- ous reaction to medication, and that their failure to take tion July 27, 2012. appropriate action led to the eventual amputations. Ger- Rehearing denied by Methodist Hasp. v. German, 2012 man also alleged that Methodist did not properly train its Tex. App. LEXIS 6246 (Tex. App. Houston 1st Dist., Apr. nurses to [**2) recognize and appropriately respond to 19, 2012) his symptoms. Petition for review denied by German v. Methodist The jury awarded damages to German based on Hasp., 2013 Tex. LEX1S 408 (Tex., May 17, 2013)

findings that Methodist was negligent and was 50% responsible for the injuries. The jury also found that the PRIOR HISTORY: [**1)

hospital had acted with conscious indifference in On Appeal from the !25th District Court, Harris providing medical care and awarded exemplary damages.

County, Texas. Trial Court Case No. 2003-30417.

The trial court entered judgment on the verdict in Ger-

In re Methodist Hasp., 2009 Tex. App. LEXIS 4993 (Tex.

man's favor. Among other things, the hospital contends App. Houston 1st Dist., June 26, 2009)

on appeal that the evidence was legally insufficient to support the verdict, primarily because critical testimony by German's expert witness was unreliable and conclu-

JUDGES: Panel consists of Justices Keyes, Sharp, and sory.

Massengale. Justice Sharp, concurring without opinion.

Because there is no evidence of at least one element OPINION BY: Michael Massengale of each of German1s theories of negligence, we reverse the trial court's judgment and render a take-nothing OPINION judgment in favor of The Methodist Hospital.

[*336) This is a medical malpractice case against Background a hospital involving the care provided by its nurses. Appellee John Geiman was admitted to The Methodist John German, then a 32-year-old mechanic, was Hospital for surgery to repair a congenital heart defect. A admitted to The Methodist Hospital for surgery to correct tragic surgical error committed during his first heart sur- a congenital heart defect. During the surgery, Dr. Magery required additional surgeries and interventions. hesh Ramchandani committed a serious error by punc- German survived, but only after suffering the amputation turing German's healthy mitral valve. The puncture reof one leg, one foot, and most of his fingers. sulted in a condition known as acute mitral valve regurgitation , which caused blood to flow backwards through German filed suit to recover damages for injuries the heart and which would [**3) have been fatal if left arising from the original surgery and his subsequent untreated. Ramchandani attempted to repair the valve course of treatment. After settling with his doctors, he during this surgery by suturing it, [*337) but a variety proceeded to trial against the sole remaining defendant, of serious medical conditions over the following two The Methodist Hospital. Geiman sought to hold Methdays indicated that the attempted repair was not successodist responsible for the acts of its nurses, alleging that ful. On two consecutive days, doctors performed addithe nurses failed to notice that he was having a danger-.

tional open-heart surgeries, attempting again to repair the

Page 2 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

valve and then, upon the realization that the valve was that it was preventable, and that the negligent failure to iiTeparably damaged, ultimately replacing it. During each prevent it resulted in his amputations. German alleged surgery, German was placed on a cardiopulmonary by- that Methodist was liable for the negligence of its cardipass machine (also known as a heart-lung machine). Af- ovascular ICU nurses who failed to recognize the signs ter the second failed valve repair, an extracorporeal and symptoms of HIT and failed to alert the doctors to membrane oxygenation machine (or ECMO) was also these conditions. In addition, German alleged that used to provide external cardiopulmonary support. Both Methodist negligently failed to train its cardiovascular the heart-lung machine and the ECMO required use of a ICU nurses [**6] about HIT. Finally, German alleged blood-thinning medication, and for this reason German that Methodist and its nurses acted with conscious indifwas given heparin, an FDA-approved anticoagulant. ference in caring for him. These were the only times that German received heparin The jury found that Methodist was negligent and during this hospital stay, and it was administered by the acted with malice, and it awarded [*338] compensadoctors themselves, not the nurses in the cardiovascular tory and exemplary damages to German. The final judgintensive care unit. After each surgery, German received ment awarded $7,1J6,095.89 to German on his claims care in the hospital's cardiovascular !CU.

against Methodist.

Over the course of eight days beginning with his original [**4] surgery, German experienced, among Analysis other things, cardiac distress, multi-system organ failure, In its first three issues, Methodist challenges the suflife -threatening bleeding, and low blood pressure. He ficiency of the evidence to support the jury's negligence required multiple blood transfusions, prompting the docfindings . The elements of a medical negligence claim tors to artificially elevate his blood pressure through the are: (1) a duty to conform to a certain standard of care;

use of drugs known as vasopressors. German also expe-

(2) a failure to conform to the required standard; (3) acrienced a significant decline in his blood platelet count, tual injury; and (4) a causal connection between the weak pulses, and other signs of blood clotting in his exconduct and the injury. See, e.g., Mariner Health Care of tremities. At trial, German's expert witness testified that Nashville, Inc. v. Robins, 321 S. W.3d 193, 205 (Tex.

these symptoms could indicate a rare adverse reaction to App.--Houston [1st Dist.] 2010, no pet.). A medical heparin called heparin-induced thrombocytopenia, also malpractice plaintiff must present evidence of a reasonaknown as HIT. But German's expert conceded that these ble medical probability that the alleged injuries "were symptoms were also consistent with the numerous surgicaused by the negligence of one or more defendants, cal interventions and medications that had been adminismeaning simply that it is 'more likely than not' that the tered, and some of German's doctors testified that at the ultimate harm or condition resulted from such neglitime of treatment they believed the symptoms were gence." Kramer v. Lewisville Mem'l Hasp., 858 S. W.2d caused by factors other than HIT. For example, German's 397, 399-400 (Tex. 1993). Methodist argues [**7] there decreased platelet count was consistent with the mitral was no evidence that its nurses breached a duty under a valve regurgitation resulting from the punctured valve, legally proper standard of care, no evidence that any aland it was also consistent with the repeated use of the leged breach caused German's injuries, and no evidence heart-lung machine and ECMO during German's treatof any standard of care for the nurses' training.

ment, both of which had the effect of decreasing platelets . [**5] His weak pulses were consistent with the use When a party who does not have the burden of proof of vasopressors, which constricted blood vessels and had at trial challenges the legal sufficiency of the evidence, the effect of depriving the capillaries in his extremities of we consider the evidence in the light most favorable to blood in order to keep blood flowing to the brain and the verdict, indulging every reasonable inference that other vital organs. would support it. City of Keller v. Wilson, 168 S. W.3d 802, 822 (Tex. 2005). We will sustain a no-evidence The treating doctors testified without contradiction point when:

at trial that German would have died without these surgical interventions. Unfortunately, the doctors could not (a) there is a complete absence of evirestore circulation to his extremities, and German later dence of a vital fact, (b) the court is underwent surgery to amputate his left leg above the baned by rules of law or of evidence from knee, all of his fingers, and all of the toes and part of his giving weight to the only evidence offered right foot.

to prove a vital fact, (c) the evidence of-

German filed a medical malpractice lawsuit against fered to prove a vital fact is no more than his treating physicians and Methodist. He settled all of a mere scintilla, or (d) the evidence conhis claims against the doctors, and he proceeded to trial clusively establishes the opposite of the solely against Methodist on a theory that he had HIT, vital fact.

Page 3 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

the reliability of the information [**10] upon which he relied in forming his opinions.

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 Challenges to expert opinions ordinarily arise in the S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, context of rulings on their admissibility, which are re-

"No Evidence" and "Insufficient Evidence" Points of viewed for an abuse of discretion. See Whirlpool Corp. v.

Error, 38 TEX. L. REV. 361, 362-63 (1960)). We review Camacho, 298 S.W.3d 631, 638 (Tex. 2009). But in some the factual sufficiency of the evidence to support a jury cases, as here, a party asserts on appeal "that unreliable .

verdict by considering and [**8] weighing all the evi-

.. expert testimony is not only inadmissible, but also that dence, and we will set the verdict aside "only if it is so its uureliability makes it legally insufficient to support a contrary to the overwhelming weight of the evidence as verdict.'' Id. "Opinion testimony that is conclusory or to be clearly wrong and unjust." Cain v. Bain, 709 speculative is not relevant evidence, because it does not S.W.2d 175, 176 (Tex. 1986).

tend to make the existence of a material fact 'more prob-

Two distinct theories of Methodist's negligence were able or less probable.'" Coastal Transp. Co. v. Crown presented at trial. German contended that Methodist was Cent. Petroleum C01p., 136 S. W.3d 227, 232 (Tex. 2004) responsible for the negligent failures of its nurses to (quoting TEX. R. EVID. 401). In such cases, courts must know the adverse effects of heparin, to appropriately determine if the testimony is sufficiently reliable to make document and report them, and to initiate the hospital's it probative of a material fact. See Whirlpool, 298 S. W.3d internal chain of command when the doctors did not di- at 637. "[I]t is the basis of the witness's opinion, and not agnose HIT. German's other theory was that the hospital the witness's qualifications or his bare opinions alone, failed to train its nurses properly. To demonstrate the that can settle an issue as a matter of law; a claim will insufficiency of the evidence to support the jury's finding not stand or fall on the mere ipse dixit of a credentialed of negligence, Methodist must demonstrate the absence witness." Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. of evidence to support at least one element of each theo- 1999). "It [**11] is not enough for an expert simply to ry. As to the theory based on the nurses' alleged failures, opine that the defendant's negligence caused the plain- Methodist argues that a critical component of German's tiffs injury." Jelinek, 328 S.W.3d at 536. proposed standard of care conflicted with Texas law by Dr. Akella Chendrasekhar was designated as Gereffectively requiring the nurses to diagnose German's man's expert witness on the standard of care for nursing symptoms as HIT, and therefore the proposed standard care. Before trial, Methodist challenged Chendrasekhar's was not supported by any legally sufficient evidence.

qualifications, and the trial court held a two-day hearing Moreover, Methodist contends that there is no [**9]

on a motion to exclude his testimony. While permitting evidence that the nurses breached any other duty or that much of Chendrasekhar's proposed testimony, the trial any such breach caused German's injuries. With respect court ruled that he could not testify that the nurses should to the alleged failure to train, [*339] Methodist argues have diagnosed HIT. Nevertheless, at trial Chendrasekthat German offered no evidence of the standard of care har opined that the nurses' standard of care required them for training nurses. We will address each of German's to recognize clotting signs and a downward platelet trend liability theories and Methodist's contentions in tum.

as symptoms of HIT, to report them to the physicians as such, and ultimately to use the hospital's internal chain of I. Negligence of Methodist's nurses command to get 11 satisfaction 11 when the doctors failed to diagnose HIT and treat Getman accordingly.

A. Standard of care--nurses' alleged duty to identify and act upon symptoms of medical condition Methodist argues that Chendrasekhar's opinion about the standard of care conflicted with legal prohibi-

Methodist challenges the sufficiency of the evidence tions against the practice of medicine by nurses because to establish certain aspects of the standard of care applihis proposed standard required the nurses not only to cable to nurses, and it argues that the standard of care recognize and report the objective data that German's propounded by German's expert is legally flawed. Beplatelet levels were dropping [**12] or fluctuating, but cause determination of the standard of care in medical also to take the further step of diagnosing HIT. That is, malpractice requires knowledge and skills not ordinarily Methodist contends that under Chendrasekhar's [*340]

possessed by lay persons, evidence of the applicable proposed standard of care, the nurses would have been standard of care and its breach is usually established by required to conclude that German's platelet levels were expert testimony. See Jelinek v. Casas, 328 S. W.3d 526, dropping or fluctuating because he had HIT and that the 533 (Tex. 2010) (causation); Battaglia v. Alexander, 177 doctors had misdiagnosed German by not concluding S. W.3d 893, 899 & n. 7 (Tex. 2005) (standard of care).

that he had HIT. Methodist contends this proposed Methodist's arguments implicate the sufficiency of Gerstandard of care is incorrect as a matter of law, and thus man1s expert testimony--both the expert's opinions and

Page 4 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

Chendrasekhar's testimony in this regard is no evidence drome." Chendrasekhar specifically opined that in the of the standard of care. case of German's treatment, Methodist's nurses had the following duties under their standards of care:

In response, German argues that he never sought to o The nurses have a responsibility to impose liability on the hospital because its nurses failed notify a physician if a patient is having an to make a medical diagnosis. Rather, German contends allergic reaction to a medicine. He testithat the nurses had a statutory duty to know, document, fied that "HIT is--thrombocytopenia in and report the effect of medications and treatments adthis setting related to HIT is an allergic ministered to patients. German contends that the nurses reaction."

should have known that HIT is an adverse effect of heparin , should have recognized that the signs and symp- o The nurses should have recognized toms they observed were consistent with HIT, and should German's clotting signs and downward have communicated that information to the treating phy- platelet trend as signs and symptoms of sicians. HIT, and they should have informed the treating physicians.

At trial, Chendrasekhar testified that his qualifications included intensive care work during his residency, a o Although all the doctors "missed" post-residency [**13] critical care fellowship, and the diagnosis of HIT, the nurses should practice of critical care medicine since 1994. He is board have caught it. certified in general surgery, critical care medicine, and [*341] o The nurses have a responsurgical critical care. He has taught doctors and medical sibility to use the chain of command to students, and he served as the assistant director and di-

[**15] inform superiors "if they don't get rector of trauma and critical care medicine at Iowa an appropriate response from the physi-

Methodist Medical Center for eight years. At the time of trial, he was the director of trauma and critical care at cian," and they should have done so in this case.

Lincoln Hospital in New York. He testified that he served as the chairman of the quality improvement committee, which encompassed nursing as well as med-

Despite his opinion that the applicable standard of care ical care improvement. He testified that he had interacted required that the nurses recognize and report the sympwith nurses on the care and treatment of HIT and that he toms as indicative of HIT, Chendrasekhar nevertheless had reviewed nursing literature pertaining to HIT.

also confirmed that German's many symptoms and com-

Chendrasekhar's testimony included reading from plications were also consistent with diagnoses other than several nursing journals, including an article entitled HIT, such as the decreased platelet levels being con- 11 Bleeding complications in the patient with cardiac dis- sistent with his acute mitral valve regurgitation. ease following thrombolytic and anti-coagulant thera-

On cross-examination, Chendrasekhar testified that pies" from Critical Care Nursing Clinics of North Amerhe did not know that there was a Texas statute that govica , which he said was relevant to the nurses' standard of emed the practice of nursing, had never heard of the care. The article stated:

North American Nursing Diagnosis Association, and was unaware of licensing or continuing education require-

While the patient is receiving heparin, ments for nurses in Texas. He also did not know whether the platelet count should be monitored Texas excluded medical diagnosis from the practice of regularly, and any downward [**14]

nursing.

trends in the count reported, as well as any change in pulsation or color of an ex- In contrast to Dr. Chendrasekhar's opinions about tremity. The nurse should observe for the nurses' duties and the applicable standard of care, poor capillary refill, weakened or absent Nurse Kathy Knaack, the nursing director of Methodist's pulses or other signs of decreased perfu- cardiovascular intt:tnsive care unit, testified that a nursing sion, such as decreased urinary output or diagnosis is "based off the nurse's assessment, a problem neurologic changes, which may indicate in the patient that they can address [**16] based on emboli. their education and license." She distinguished a nursing diagnosis from a medical diagnosis in that a "medical diagnosis has to do with the medical condition of the He also read an excerpt from "Heparin-induced throm- patient in which the physician would order specific bocytopenia" published in the Journal of Vascular Nurs- treatments; a nursing diagnosis has things to do with ing, which stated: "Nurses are responsible for recogniz- what a nurse can do to intervene and support the medical ing and reporting the signs and symptoms of HIT syn- diagnosis." She also testified that the North American

Page 5 369 S.W.3d 333, *; 2011 Tex. App. LEXJS 10215, **

Nursing Diagnosis Association, or NAND A, sets stand- 151.002(a)(I3). Medical diagnosis is commonly underards for acceptable nursing diagnoses. The 2001-2002 stood to be the determination of the cause and nature of a NANDA manual, which was admitted into evidence at patient's condition. See, e.g., Loper v. Andrews, 404 trial, defmed "nursing diagnosis" as "[a] clinical judg- S. W.2d 300, 304-05 (Tex. 1966); Texas Employer's Ins. ment about individual, family, or community responses Ass'n v. Sauceda, 636 S. W.2d 494, 498 (Tex. App.--San to actual or potential health problems/life processes. A Antonio 1982, no writ). ' nursing diagnosis provides the basis for selection of Both Methodist and German agree that nurses cann ,ursing interventions to achieve outcomes for which the not legally make medical diagnoses. Methodist [**19]

nurse is accountable." NANDA, NURSING DIAGNOSES:

argues that Chendrasekhar's stated standard of care re-

DEFINITIONS & CLASSIFICATIONS 2001-2002, at 245 quired exactly that. In response, German argues that the (Marjory Gordon eta!., eds., 2001).

Chendrasekhar's standard of care required no more than Knaack offered her opinion that a doctor's order is for the nurses to know and report the effects of the medrequired for the administration of medication, but a nurse ications they administer, because Chendrasekhar testified is nevertheless required to know why a medication is that HIT is an allergic reaction to heparin. ordered and its effects. This includes adverse reactions, German received heparin only during his surgeries such as the risk of bleeding [**17) associated with givand only when administered by a doctor. The Standards ing a patient a blood-thinning medication like heparin.

of Nursing Practice required the nurses assisting with She also testified that Methodist's nurses do not--and German's care to know the rationale for and effects of legally cannot--make medical diagnoses, because nurses using heparin, as well as to accurately and completely are not educated or licensed to do so, Nurse Virginia report and document German's status, including his Hathaway, a certified critical care registered nurse who signs, symptoms, and responses. See 22 TEX. ADMIN.

cared for German in the cardiovascular ICU, also testi-

CODE§ 217.11(J)(C), (D). The nurses' duties thus infied that a diagnosis of HIT is a medical diagnosis that a cluded accurately and completely reporting the signs, nurse cannot make.

symptoms, and responses relied upon by German's treat-

Both Methodist and German rely on the Nursing ing physicians (and later relied upon by Chendrasekhar Practice Act and its implementing regulations in the in the formation of his opinions), such as German's fall- Texas Administrative Code as defining the standard of ing or fluctuating platelet levels and intermittent weak care for nurses applicable to this case. See TEX ace. pulses. These signs, symptoms, and responses were con- CODE ANN. §§ 301.001-301.307 (West 2004 & West sistent with more than one medical or clinical cause, not Supp. 2010) (Nursing Practice Act); 22 TEX. ADMIN. just HIT. Determining that these clinical findings actual- CODE§§ 213.1-227.6 (2010). Although these regulations ly were symptoms [**20) of HIT--as opposed to side have been amended since the events giving rise to Ger- effects of German 1s ongoing treatment or symptoms of man's claims, neither party argues that any change is some other disorder such as acute mitral valve regurgitarelevant to this appeal. Rule 217.11 of the Texas Admin- tion--would have required the nurses to analyze the cause istrative Code, entitled 11 Standards of Nursing Practice, 11 and nature of German1s condition. This is a medical didefines the 11 minimum acceptable level of nursing prac- agnosis, prohibited to nurses under Texas Jaw. See TEX. tice" for a given setting. See 22 TEX ADMIN. CODE § ace. CODE ANN.§ 301.004(b) (Nursing Practice Act); id. 217.11. Among the standards applicable [*342) to all § 151.002(a)(J3) (Medical Practice Act). Accordingly, nurses are the requirements that a nurse [**18) know the signs, symptoms, and responses the nurses were the rationale for and effects of medications and treat- obliged to report and document could not have included ments and correctly administer them, as well as accu- the characterization or diagnosis of the symptoms as berately and completely reporting the patient's signs, ing indicative of HIT. symptoms, and responses. !d.§ 217.11(/)(C), (D).

Chendrasekhar's proposed standard of care effec-

11

In defining professional nursing," the Nursing tively required the nurses to engage in the unauthorized Practice Act specifically excludes "acts of medical diag- practice of medicine by making a medical diagnosis. nosis." TEX. ace. CODE ANN. § 301.002(2) (West Supp. Anything that could be characterized as the practice of 20 I 0). Furthermore, the Act specifically states that it medicine is expressly excluded from the scope of profes- "does not authorize the practice of medicine as defined sional nursing in Texas as defined by the Nursing Pracby Chapter !51" of the Occupations Code. See id. § tice Act. See TEX. ace. CODE ANN. § 301.004(b). The 301.004(b). The Medical Practice Act defines "practicing nurses had no legal duty to draw any conclusion from medicine 11 to include "the diagnosis, treatment, or offer to their observations about the patient1s signs, symptoms, treat a mental or physical disease or disorder or a physi- and responses that would have required a medical diagcal deformity or injury by any system or method, or the nosis. Chendrasekhar's testimony [*343] suggesting attempt to effect cures of those conditions." Id. § otherwise constituted no evidence [**21] of a higher

Page 6 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

standard of care because such a standard would imper- that a particular medical condition has resulted. This is missibly hold nurses to standard higher than that allowed particularly true when, as occurred in this case, the signs by law. See Birchfield v. Texarkana Mem'l Hasp., 747 and symptoms observed by a nurse are consistent with S. W.2d 361, 365 (Tex. 1987) (expert's opinion on a more than one disease, syndrome, or cause. Opinion tesmixed question of law and fact must be predicated on timony about the standard of care in a medical malprac- "proper legal concepts"); Schneider v. Haws, 118 S. W.3d tice case cannot be used to expand this responsibility to 886, 889-90 (Tex. App.--Amarillo 2003, no pet.) (medical nurses in conflict with Texas statutes and regulations malpractice expert witness1s attempt to impose upon a governing the nursing profession. To the extent Chendoctor and his assistant "a standard of care greater than drasekhar also opined that Methodist's nurses should that compelled by law ... constituted no evidence, as a have gone over the heads of German's treating doctors to matter of law, of the applicable standard of care"). The seek 11 Satisfaction11 when those doctors did not diagnose nursing journals entered into evidence also were no evi- German with HIT and treat [**24] him [*344] acdence that a nurse should interpret certain symptoms as cordingly, we hold that such testimony also fails because indicating HIT. Instead, consistent with the definition of it is based on the same flawed premise that the nurses professional nursing in Texas, see 22 TEX. ADMIN. CODE effectively could be required to diagnose HIT. § 217.11 (l)(C), (D), they merely stated that, when a patient receives heparin, a nurse should: monitor and report B. Breach and causation--adequacy and effect of

11

downward trends in platelet count; report any change in nurses' observations and reports

11

pulsation or color of an extremityn; observe certain

11

The nurses' failures to identify HIT and act in acsigns including "poor capillary refill, weakened or absent cordance with Dr. Chendrasekhar's opinion of their dupulses or other signs of decreased perfusion 11 ; and "reties in that regard were not the only theories of Methport 11 such 11 signs [**22] and symptoms."

odist1s negligence presented at trial. German also con-

In addition, Chendrasekhar's testimony that he was tended that the nurses failed to observe and properly unaware of the Texas statutes governing or restricting communicate to the doctors the presence of symptoms nursing practice made his testimony about the standard that may have indicated HIT. In particular, Gennan arof care unreliable. See Whirlpool, 298 S. W.3d at 637, gues that he presented evidence that the nurses failed to 642. Although Chendrasekhar testified about his exten- document and report to the physicians his downward sive experience in intensive care, including working with trend in platelet counts, weak pulses, and clotting signs. and reviewing the work of nurses, Chendrasekhar did not Chendrasekhar testified that the nurses failed to satisfy provide any basis for his opinion that the nurses' standard their duty to document and communicate this inforof care required them to determine that a patient suffered mation to the doctors. German thus argues that the evifrom HIT and then act upon that determination. Any dence supports the jury's verdict that acts of negligence such opinion in this case necessarily required reference attributable to the hospital proximately caused his injuto the relevant legal restrictions on the practice of nurs- ries. ing, yet Chendrasekhar's opinion could not account for Methodist argues both that there is no evidence that these restrictions considering that he admitted being igthe nurses failed to report completely on German's signs norant of their substance. Thus, to the extent that he tesand no evidence that the nurses' [**25] actions caused tified that the nurses should have recognized German's Gennan1s injuries and amputations. In particular, Methsymptoms as signs of HIT and characterized them as odist points to the evidence in the record about the thorsuch , this testimony is no evidence of the applicable ough nursing assessments conducted in the cardiovascustandard of care because of its fundamental unreliability.

lar ICU and the physicians' testimony that they would not We hold that German offered no evidence of any have done anything differently if the nurses provided standard of care effectively requiring the nurses to diag- more information. nose HIT. This holding does [**23] not mean that a nurse has no duty to recognize and appropriately report a. Adequacy of nurses' observations and communicaor otherwise act on the signs and symptoms of a danger- tion ous allergic reaction. Instead, consistent with the com-

Chendrasekhar testified that the nurses should have plementary provisions of the Medical and Nursing Pracknown the potential adverse effects of heparin, but their tice Acts, we hold that Texas law specifies that it is the deposition testimony showed their knowledge was inaddoctor , not the nurse, who draws medical conclusions equate. For example, Methodist's nurses testified that from the information observed and reported by the nurse.

heparin can cause excessive bleeding, but they did not Only doctors are legally authorized to make a medical indicate awareness that clotting was one of the drug's diagnosis by evaluating a patient's medical treatment and potential adverse effects. When German's blood pressure the development of subsequent symptoms to conclude and pulses did not correlate, according to Chendrasekhar

Page 7 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

the discordant pressure data implied "that some other During German's critical first days in the cardiovascular process is going on, like--that's within the blood vessel, ICU, nurses performed more than 30 head-to-toe nursing such as clotting, Because you are not feeling a pulse yet assessments. Knaack testified that they were done within the blood pressure is such that you should be feeling a one hour from the time German was admitted or readpulse ." He testified that the nurses should have recog- mitted to the JCU and every four hours thereafter, These nized that the blood pressure was discordant and "at least assessments included monitoring blood pressure and informed the physician that was caring for him"; that the looking for signs of clotting. The nurses monitored Gernurses [**26] should have noticed a significant drop in man's pulses and platelet counts during this same period, German's platelet counts from the time of his admission testing his platelet counts ten times. Knaack also testified to the hospital to the time of each assessment; and that that a bedside computer is assigned to each patient for they should have reported trends in his clotting signs as the purpose of documenting the medical record and well. nursing notes. Nurses access laboratory results, including platelet levels, through the bedside computer. All the Nurse Knaack testified that, consistent with hospital doctors, respiratory therapists, and physical therapists, as procedure, the nurses performed a head-to-toe, hands-on well as the dietician and pharmacist, also had access to nursing assessment of German within one hour of each the laboratory results through the bedside computer.

admittance to the cardiovascular ICU after surgery and every four hours thereafter. In doing so, a nurse exam- Dr. Faisal Masud, a critical care anesthesiologist and ined all of German's major organ systems by sight, touch, cardiac anesthesiologist, worked at Methodist's cardioand measurements with medical equipment, as well as by vascular ICU and treated German there, Methodist emspeaking to him when possible, For example, the cardio- ployed around-the-clock cardiovascular ICU physicians vascular part of the assessment required the nurse to and critical care specialists, so that physicians [**29] monitor German's heart sounds with a stethoscope, to were available at all times if a nurse needed to contact a touch his neck veins to assess cardiac function, to look specialist. Masud explained that the nurses work with the for swelling throughout his body, to check for pulses by cardiovascular ICU team of surgeons, critical care spetouching his arms, feet, and other body parts or by using cialists, residents, physicians' assistants, and nurse praca Doppler machine, and to squeeze his nail beds and titioners. He testified that nurses are an important part of watch the color return to determine capillary refill time. patient care, serving 11 continuously at the bedside 11 be- The cardiovascular ICU nurses also monitored German's cause 11 no physician can be continually at the bedside. 11 [*345] vital signs--either every hour or every 15 He characterized the nurses' role as an 11 integral part of minutes--when he received certain medications. This anything," explaining that physicians provide instruction monitoring [**27] included his blood pressure, respira- to the nurses, that the physicians and nurses routinely tory rate, temperature, heart rate, pulmonary artery cath- exchange information, with nurses reporting significant eter reading, drip medication and pulmonary status, ox- changes to the physician or other appropriate team ygen or- ventilator status, and neurological assessment. member. Although he reviewed the nursing notes at The vital signs and the information from the periodic times, he relied on the nurses' verbal updates about hands-on, head-to-toe assessments were stored in Ger- changes in a patient's status. Masud explained that both man's bedside computer, which could be accessed by as his general practice and specifically in the case of every member of the cardiovascular !CU. German's treatment, he listens to the nurses and actively evaluates and treats the patient while he is at the bedside, Knaack also testified about the importance of continuity of care, which required communication among the Chendrasekhar opined that the nurses' failure to patient1s health care providers, Continuity of care in- recognize and act on the signs and symptoms of HIT cluded both written nursing records and verbal bedside proximately caused [*346] German's injuries. Again updates from the nurses to the health care providers. we look to the basis of his opinions, See Whirlpool Knaack testified that a nurse updates a doctor on 11 her Corp., 298 S. W.3d at 637. [**30] Although the nurses clinical assessment findings ... anything related to the could not be required to make a medical diagnosis of medications that the patient is receiving [and] lab work HIT, they were required to accurately and completely or test results." She testified that the standard of care report German's signs, symptoms, and responses. See 22 does not require the nurse to record verbatim what she TEX. ADMIN. CODE § 217. 11. There is no evidence suptold the doctor; rather, the standard of care is satisfied if porting Chendrasekhar's opinion that they failed to do so the nurse simply notes, uupdate given. 11 in the sense that the relevant information was not actually observed and documented. Nurse Knaack testified that Cardiovascular ICU nurses at Methodist follow the nursing record included notes on clinical assessments nursing standards based on those set by the American done in accordance with the one-hour and four-hour Association of Critical Care Nurses. Knaack reviewed standards set by the hospital and that these assessments [**28] the nurses' notes from the relevant time period.

Page 8 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

included checking blood pressures, pulses in Gennan's immediately before Gennan's second surgery, in which extremities, and looking for signs of clotting. In other Dr. Michael Reardon, the co-director of the ICU, was words, the head-to-toe nursing assessments included the present when Gennan began to descend into cardiac arvery signs and symptoms that Chendrasekhar testified rest. A nurse [*347] asked for Reardon's assistance. would be present in a patient who had HIT. And, criti- Reardon placed German on the heart-lung machine, cally, Chendrasekhar himself testified that the doctors [**33] administering heparin in the process. Chenwere provided all of the information they needed to di- drasekhar offered his opinion that a nurse should have agnose HIT, including infonnation about Gennan's weak told Reardon about the downward platelet trend, and if pulses and falling platelet levels. Although he criticized she had, a hematology consult should have been ordered, the nurses' alleged failure to identity trends in the infor- HIT should have been diagnosed, and ultimately heparin mation they recorded and the adequacy of the nurses' should not have been used. verbal reports to the doctors, [**31] such as their fail-

Dr. Reardon confirmed that when the nurse asked ure to verbally report about Gennan's downward trending him for help, he was not specifically made aware of any platelet count and fluctuating pulses at a critical point in downward trend in German's platelets and he did not call time, he acknowledged that the nurses had documented for a hematology consult. He looked only at the daily lab the underlying information in their assessments, which work and did not know of the falling platelet trend. But were available to the doctors. He thus agreed that the he testified that he would not have done anything differdoctors should have been able to make a diagnosis of ently even if he had known of the falling trend, because HIT with the infonnation available to them--the same Gennan would have died if he did not take immediate information he relied upon to conclude that German's action. He testified:

symptoms indicated HIT. Methodist's nurses observed and documented all of this information, upon which Q. On 9/20/02, if you had known that German's physicians contemporaneously relied for their Mr. Gennan's blood platelets were 68 on treatment decisions.

that day and were 24 3 upon admission, The nursing notes indicate that treating physicians would you have called for a hematology were frequently at Gennan's bedside while the nurses consult? were there monitoring and caring for German. Having A.No.

reviewed the record, including those pmiions of the record identified in German's briefing as supportive of his Q. And why is that? claim, we find no evidence that the nurses failed to fully A. Because he was going to be dead discharge their duties to accurately and completely document the patient1S signs, symptoms, and responses.

in a short period of time if I didn't get him Accordingly, the only possible remaining theories upon on bypass, and by the time we could have gotten a hematologist, he would be dead which the jury could have concluded that the nurses and his platelet count would have been failed to satisfy the nursing [**32] standard of care are inunaterial.

the possibilities that the nurses' duty to report information included the duty to identity trends in that infor- Q. So that would be the same for any mation or to verbally communicate particular infor- blood platelet [**34]level? mation at a particular time. We need not express any opinion about whether the evidence would have sup- A. That1s correct. It was my opinion, ported a finding of breach on these narrow theories be- when the nurses asked me, that he was cause, as explained below, there is no evidence that any going to die in short order without getting breach of that nature caused German's injuries. on the heart lung machine, which is why I placed him on it. If he had been stable b. Effect of nurses' reports on treatment decisions by enough to wait, I would have done what it German's physicians took to tide him over until his doctor, Dr. Ramchandani, was there.

As suggested above, German contends that it was not enough for the nurses to observe and record information . Chendrasekhar testified that the nurses should have identified a downward trend in Gennan's platelets, Dr. Masud was also present at this same time, and he that they should have specifically informed a treating had been treating German for several days and was physician of that trend, and that their failure to do so aware of the platelet count. Masud did not believe Gercaused German to lose his fingers, a leg, and a foot. man had HIT at the time. Instead, he believed that the Chendrasekhar also testified about a particular incident low platelet count was a direct result of German's multiple surgeries and his bleeding. He testified that if a nurse

Page 9 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

had persisted in questioning his judgment as to the cause he had been checking German's laboratory results "conof German's bleeding, he would have thanked the nurse, tinuously ... interoperatively and post-operatively." explained why HIT was not the proper medical diagno-

Chendrasekhar testified that if the nurses had insis , and, if necessary, asked for the nurse to be reassigned formed Reardon [**37] of the downward trend in to another patient.

platelet levels, then Reardon should have called for a Three of German's other treating physicians also tes- hematology consult and used the alternate anticoagulant tified that they either had all the information necessary to when putting German on the heart-lung bypass machine. diagnose HIT, or tha~ if a nurse suggested a diagnosis of But Reardon specifically testified that he would not have HIT it would not have changed their course of action or taken that course of action if the nurses had informed their assessment that German did not have HIT. Dr. him of German's platelet trend because it would have Lawrence Rice is a board-certified [**35] hematologist cost German his life--thus indicating that the nurses' failwho was consulted regarding German's case. Rice testi- ure to report in accordance with Chendrasekhar's opinion fied that he would not have suspected HIT or ordered a of how they should have did not cause German to receive heparin antibody test in the days following German's first heparin. Chendrasekhar actually agreed that the surgical surgery, even if he knew the complete history of platelet and medical interventions performed at Methodist were counts, because there were 11 8 lot of alternative explana- necessary to save German's life and that he would have tions for the things going on." He testified that the two died if the doctors had not performed the second heart additional surgeries and Reardon's action in placing surgery. Finally, Chendrasekhar conceded that German's German on an emergency heart-lung bypass machine many symptoms and complications were consistent with were necessary to save German's life. And although diagnoses other than HIT, such as acute mitral valve re- German introduced evidence that an alternative blood gurgitation. thinner, Argatroban, was used in treating patients with Causation requires proof that the "allegedly negli-

HIT, Rice testified that even assuming German had HIT, gent act or omission constitute[s] 1a substantial factor in he would not have recommended the use of an alternabringing about the injuries, and without it, the harm tive blood thinner.

would not have occurred."' Columbia Med. Ctr. of Las Dr. Luis Velez-Pestana, a physician who treated Colinas, Inc. v. Hogue, 271 S. W3d 238, 246 (Tex. 2008)

German in the cardiovascular ICU, testified that he had (quoting [**38] IHS Cedars Treatment Ctr. of DeSoto, all the information he needed to care for German when Texas, Inc. v. Mason, 143 S.W3d 794, 799 (Tex. 2004)).

11

he did. He said that although the nurses did not [*348] Proximate cause cannot be satisfied by mere conjecture, identify a downward "trend" in platelet levels, he made guess, or speculation. 11 Id. German1s treating physicians himself aware of German's platelet trend by checking his testified that additional information or questions from the records. Velez testified that if a nurse had questioned nurses would not have changed their course of treatment, him about whether German had HIT, he would have refuting the suggestion that any deficiency in the nurses' thanked her for the information "because [**36] it's reporting proximately caused Ge1man s injuries. German

1

very important what they see there with the patient all properly notes that the jury could have disbelieved the the time," but he would not have diagnosed HIT because treating doctors' testimony, but he still carried the burden German did not display the signs and symptoms of HIT of proving by a reasonable medical probability that his at that time. Velez also testified that if the nurse said she injuries were caused by the alleged breach of failing to believed German to be having an allergic or adverse re- identify trends in the information they had observed or action to heparin, he would have explained the clinical by the alleged breach of failing to verbally notify a docand laboratory findings comported more with use of the tor about this information. Chendrasekhar offered opincardiopulmonary bypass pump and his extreme ion testimony that, with more information, a doctor post-surgical bleeding than with a diagnosis ofHIT. should have requested a hematology consult and then should have altered the course of treatment so as to avoid Dr. Saleem Zaidi was another critical care specialist use of heparin. But this speculative [*349] testimony with Methodist who treated German. When asked if he is insufficient to raise a question of fact on the element of would have acted differently if a nurse had suggested a causation, particularly in light of the undisputed evidence diagnosis of HIT, Zaidi explained that HIT was already that German would have died unless [**39] Reardon in his mind as a potential medical diagnosis, but the had immediately intervened. See Hogue, 271 S. W3d at treatment for HIT would have exacerbated bleeding and 247.

German was already in a ulife and death" situation. Moreover, Zaidi testified that he knew of the downward In sum, there is no evidence establishing a reasonaplatelet trend because German was his patient, he had ble medical probability that the course of German's cared for him 11 Continuously for four or five days, 11 and treatment was influenced by any failure by nurses to communicate information to physicians. See Jelinek, 328

Page 10 369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, **

S. W.3d at 533. The documentary record reflects that the platelet count was an adverse reaction to heparin, Knaack doctors had all of the information they needed available stated, "They are trained that a drop in platelet count can to them, and the only fact question suggesting a breach be an adverse reaction to many things, and it's the physiof duty is whether the nurses should have done more to cian's decision whether it's related to heparin or whether distill certain information for them. Regardless of any it's a disease process. 11 such breach by the nurses, the undisputed evidentiary Chendrasekhar did not testify as to a particular record also reflects German would have died if the treatstandard of care regarding training. He did not offer any ing doctors altered their course of treatment to obtain the opinion about what the nurses should have been taught, hematology consult suggested by German's expert. Achow they should have been trained, or how often they cordingly, there is no proof that the nurses' alleged defishould received such instruction. He did not opine that ciencies were a substantial factor in bringing about Gerthe appropriate standard of care required Methodist to man's injuries. See Hogue, 271 S. W.3d at 246. Chentrain its ICU nurses to recognize the adverse signs and drasekhar's opinions to the contrary were based on nothsymptoms of heparin. Rather, Chendrasekhar said that ing more than conjecture, guess, or speculation, renderthe excerpts from nursing journals were relevant to the ing them insufficient to establish proximate causation by appropriate standard of care. [*350] In addition he a reasonable medical probability to support German's testified that he was completely unaware of licensin~ or negligence claims.

continuing education requirements for nurses. Thus, to the extent he did [**42] offer testimony pertinent to the II. Failure to train [**40] nurses standard of care for training, his testimony was not sup-

German also claimed that Methodist was negligent ported by a reliable foundation.

for failiug to train its nurses about potential adverse reac-

Even if there were evidence of the hospital's duty to tions to heparin. On appeal, Methodist contends that train and a breach of that duty, German could not show there is no evidence of the standard of care with regard to that he was harmed by the hospital's failure to train unthe hospital's duty to train because the trial court specifiless it resulted iii both the nurses' failure to conform to cally ruled before trial that Dr. Chendrasekhar could not the proper standard of care and his injury. As we have testify that Methodist should have provided nursing eduexplained , German's treating physicians testified that cation conc~ming HIT or that Methodist maliciously additional information or questions from the nurses failed to tram Its nurses about HIT. To prevail on this would not have changed their course of treatment. Actheory , German had to prove: (1) under the applicable cordingly, there is no evidence of a causal connection standard of care, the hospital had a duty to train its nursbetween any alleged failure to train the nurses and the es abo~t HIT; (2) the hospital breached this duty; (3) he injuries tliat German alleges. See Hogue, 2 71 S. W.3d at was mJured; and (4) there is a causal connection between 247. We therefore hold that there was no evidence of the breach of care and the injury. See, e.g., Robins, 321 standard of care or causation for German's theory of neg-

S. W.3d at 205.

ligent failure to train.

There is no evidence of the standard of care in the record. Nurse Knaack testified that, during the time when Conclusion German was in the hospital, it was her job to make sure Because we hold that there is no evidence of at least she had "hired and trained competent staff." She said that one element of each of German's theories of negligence, Methodist's nurses were trained to monitor the patients we sustain Methodist's first three issues. We reverse the including performing the head-to-toe assessment look: ing at lab values, recording information, and re~orting trial court's judgment and render a take-nothing judgment in favor of Methodist. In light of this disposition, we [**41] to the physicians. She testified that she did not need not address Methodist's remaining issues.

specifically train the nurses that blood clotting could be an adverse reaction to heparin, and she could not say if Michael [**43] Massengale that training had been otherwise provided to them. When asked whether the nurses were trained that a drop in Justice