                                                                                                   ACCEPTED
                                                                                              01-14-00767-CV
                                                                                    FIRST COURT OF APPEALS
                                                                                            HOUSTON, TEXAS
                                                                                        4/13/2015 11:42:54 AM
                                                                                          CHRISTOPHER PRINE
                                   NO. 01-14-767-CV                                                    CLERK




                In the First Court of Appeals     FILED IN
                                           1st COURT OF APPEALS

                       Houston, Texas          HOUSTON, TEXAS
                                           4/13/2015 11:42:54 AM
                                                                     CHRISTOPHER A. PRINE
                                                                            Clerk

 Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana
              Lenoir and Christopher McKnight, Individually and as
                          Next Friend of Nayla McKnight,
                                Appellants-Plaintiffs.
                                             v.
                                   U.T. Physicians,
                                  Appellee-Defendant,


                   On Accelerated Appeal From Cause No. 2012-35806
               In the 164th Judicial District Court of Harris County, Texas
                 Honorable Alexandra Smoots-Hogan, Presiding Judge


             SUR-REPLY BRIEF OF APPELLEE U.T. PHYSICIANS


NORTON ROSE FULBRIGHT US LLP                      KEN PAXTON
                                                  Attorney General of Texas
David R. Iler                                     CHARLES E. ROY
State Bar No. 10386480                            First Assistant Attorney General
david.iler@nortonrosefulbright.com                JAMES E. DAVIS
Warren S. Huang                                   Deputy Attorney General for Civil Litig.
State Bar No. 00796788                            KARA L. KENNEDY
warren.huang@nortonrosefulbright.com              Chief, Tort Litigation Division
Jaqualine P. McMillan
State Bar No. 24082955                            Jason Warner, Asst. Attorney General
jaqualine.mcmillan@nortonrosefulbright.com        State Bar No. 24028114
1301 McKinney, Suite 5100                         jason.warner@texasttorneygeneral.gov
Houston, Texas 77010-3095                         P.O. Box 12548, Capitol Station
Telephone: (713) 651-5151                         Austin, Texas 78711-2548
Facsimile: (713) 651-5246                         Telephone: (512) 463-2197
                                                  Facsimile: (512) 463-2224
                    Counsel for Appellee-Defendant U.T. Physicians
                         ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS

                                                                                                             PAGE

INDEX OF AUTHORITIES.................................................................................... ii

ARGUMENT ............................................................................................................1

         I.       The Lenoirs Waived Any Argument Based on Nurse Matthews’
                  Alleged Administration of a Medication Different From the
                  One Prescribed By Dr. Gonski .............................................................1

         II.      The Lenoirs Failed to Plead That Nurse Matthews Allegedly
                  Administered a Different Medication From the One Prescribed
                  By Dr. Gonski.......................................................................................2

         III.     The Lenoirs’ New Negligence Theory Still Does Not Fall
                  Within Any of the TTCA’s Waiver of Immunity Provisions .............. 7

         IV.      Allowing the Lenoirs to Make New Allegations in Their Reply
                  Brief Would Promote Gamesmanship .................................................9

CONCLUSION .........................................................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................11

CERTIFICATE OF SERVICE .............................................................................. 12




                                                           i
                                       INDEX OF AUTHORITIES

                                                                                                             PAGE(S)
CASES

City of N. Richland Hills v. Friend,
       370 S.W.3d 369 (Tex. 2012) ........................................................................... 7
Dallas Area Rapid Transit v. Whitley,
      104 S.W.3d 540 (Tex. 2003) ...........................................................................7

Glattly v. Air Starter Components, Inc.,
       332 S.W.3d 620 (Tex. App.–Houston [1st Dist.] 2010, pet.
       denied) .............................................................................................................1

Hunt Constr. Group, Inc. v. Konecny,
     290 S.W.3d 238 (Tex. App.–Houston [1st Dist.] 2008, pet.
     denied) .............................................................................................................1

Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston,
     333 S.W.3d 676 (Tex. App.–Houston [1st Dist.] 2010, pet.
     denied) .............................................................................................................8

Mitcham v. Univ. of Tex. Med. Branch at Galveston,
     818 S.W.2d 523 (Tex. App.–Houston [14th Dist.] 1991, writ
     denied) .............................................................................................................8
Univ. of Tex. Health Sci. Ctr. at Houston v. DeSoto,
      401 S.W.3d 319 (Tex. App.–Houston [14th Dist.] 2013, pet.
      denied) .............................................................................................................8

Univ. of Tex. Med. Branch at Galveston v. Malveaux,
      2010 Tex. App. LEXIS 6054 (Tex. App.–Houston [14th Dist.]
      July 29, 2010, pet. denied) ............................................................................... 8

Univ. of Tex. Med. Branch at Galveston v. Qi,
      402 S.W.3d 374 (Tex. App.–Houston [14th Dist.] 2013, no pet.) .................. 8
Univ. of Tex. Med. Branch at Galveston v. Tatum,
      389 S.W.3d 457 (Tex. App.–Houston [1st Dist.] 2012, no pet.)................. 7, 9



                                                             ii
Zamarron v. Shinko Wire Co.,
     125 S.W.3d 132 (Tex. App.–Houston [1st Dist.] 2003, pet.
     denied) .............................................................................................................1


STATUTES & RULES

TEX. R. APP. P. 33.1(a) ...............................................................................................1




                                                            iii
                                       ARGUMENT

       On April 3, 2015, Appellants-Plaintiffs Shirley Lenoir, Individually and as

Personal Representative of the Estate of Shana Lenoir, and Christopher McKnight,

Individually and as Next Friend of Nayla McKnight (“the Lenoirs”) filed their

Reply Brief on the Merits. In that brief, the Lenoirs argued for the first time in this

litigation that U.T. Physicians waived sovereign immunity under the Texas Tort

Claims Act (“TTCA”) based on Nurse Angela Matthews’ allegedly negligent

administration of a medication different from the one prescribed by Dr. Leah

Gonski (“Dr. Gonski”) and that such alleged negligence proximately caused the

Lenoirs’ damages. Reply Br. at 13-15. U.T. Physicians files this sur-reply brief to

show that the Lenoirs’ new argument fails for the following reasons.

I.     The Lenoirs Waived Any Argument Based on Nurse Matthews’ Alleged
       Administration of a Medication Different From the One Prescribed By
       Dr. Gonski

       The Lenoirs’ new argument that Nurse Matthews allegedly administered a

different medication from the one prescribed by Dr. Gonski fails because the

Lenoirs waived this argument by failing to raise it in the trial court1 or in their

opening brief in this appeal.2 Specifically, the Lenoirs failed to assert such a

1
       See, e.g., TEX. R. APP. P. 33.1(a); Hunt Constr. Group, Inc. v. Konecny, 290 S.W.3d 238,
244-45 (Tex. App.–Houston [1st Dist.] 2008, pet. denied).
2
      See, e.g., Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 639 n.3 (Tex. App.–
Houston [1st Dist.] 2010, pet. denied); Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex.
App.–Houston [1st Dist.] 2003, pet. denied).

                                              1
negligence theory as a basis for waiver of U.T. Physicians’ governmental

immunity in their responses to U.T. Physicians’ plea to the jurisdiction in the trial

court (CR 71-108, 301-97), at the hearing on U.T. Physicians’ plea to the

jurisdiction in the trial court (RR 1-23), or in their opening brief in this appeal.

Consequently, the Lenoirs’ assertion of the argument for the first time in their

reply brief on the merits in this appeal should not be considered by this Court.

II.   The Lenoirs Failed to Plead That Nurse Matthews Allegedly
      Administered a Different Medication From the One Prescribed By Dr.
      Gonski

      The Lenoirs’ new argument that Nurse Matthews allegedly administered a

different medication from the one prescribed by Dr. Gonski also fails because the

Lenoirs never pled such negligence theory in the trial court even though the trial

court granted them the opportunity to amend their petition in response to U.T.

Physicians’ plea to the jurisdiction.     CR 116-17.     The absence of any such

allegation in the Lenoirs’ petition is substantiated by the expert report of Dr. Frank

Battaglia that the Lenoirs filed in the trial court in which Dr. Battaglia never

opined that Nurse Matthews negligently administered a different medication from

the one prescribed by Dr. Gonski and that any such negligence proximately caused

the Lenoirs’ damages. First Supp. CR 19-29.

      Instead, the Lenoirs’ petition, expert report, and opening brief in this appeal

expressly and unambiguously allege that Nurse Matthews: (1) injected the


                                          2
medication that Dr. Gonski prescribed; and (2) was allegedly negligent in doing so

because she should have known that (a) Dr. Gonski lacked the authority to

administer (individually or by delegation) the medication or (b) the medication was

contraindicated in light of Ms. Lenoir’s medical condition. Resp. Br. 40-44. As

U.T. Physicians conclusively established in its response brief, such allegations do

not fall within the TTCA’s waiver of immunity provisions. Id. at 44-57.

      The Lenoirs’ twisted interpretation of their own petition attempts to create a

new allegation that Nurse Matthews administered a medication different from the

one prescribed by Dr. Gonski. The Lenoirs cite Paragraphs 17 and 19 of their

petition in support of this twisted interpretation (Reply Br. at 14), but those

paragraphs merely state that: (1) “Plaintiffs allege that in the physician’s orders,

Gonski wrote, ‘Progesterone shot IM weekly’ and signed her name” (CR 121, ¶

17); and (2) “Plaintiffs allege that a 250 mg injection of progesterone was

administered to Shana Lenoir by Defendant ANGELA MATTHEWS, an LVN

who signed her initials on the medical record” (CR 121, ¶ 19). Paragraphs 17 and

19’s express and unambiguous language do not support an allegation that Nurse

Matthews administered a medication different from the one prescribed by Dr.

Gonski.   Instead, they clearly only allege that Nurse Matthews administered

“progesterone” just as Dr. Gonski ordered.

      The Lenoirs also cite Paragraphs 38 and 39 of their petition to support an


                                         3
allegation that “[a]lthough 17-alpha hydroxyprogesterone caproate (17P) has been

used to prevent pre-term labor, this was not the drug Nurse Matthews injected into

Shana Lenoir. … Instead, Nurse Matthews allegedly injected 17-hydroxyprogester-

one (17-OHP), which is not the same medication.” Reply Br. at 14 (citing CR 123,

¶¶ 38-39).3 But Paragraphs 38 and 39 do not contain any such allegation that Dr.

Gonski prescribed the particular type of progesterone called “17P.”4                 As the

Lenoirs specifically allege in Paragraph 17 of their petition, Dr. Gonski merely

wrote “Progesterone shot IM weekly” in the physician’s orders. Reply Br. at 14

(citing CR 121, ¶ 17). Moreover, nowhere in their petition do the Lenoirs allege

that Nurse Matthews’ purported administration of 17-OHP instead of 17P was

negligent and proximately caused their damages. Instead, the Lenoirs allege that

progesterone should not have been prescribed and administered because: (1) it was

an off-label use of the drug (CR 123, ¶ 38); (2) it was allegedly contraindicated

where Mrs. Lenoir was pregnant with twins (CR 124, ¶¶ 40-41, 44); and (3) it was

medically unnecessary due to Mrs. Lenoir’s advanced gestation (CR 124, ¶ 42).

3
       Furthermore, U.T. Physicians does not agree that 17-alpha hydroxyprogesterone caproate
(17P) and 17-hydroxyprogesterone (17-OHP) are different medications.
4
        Paragraph 38 of the Lenoirs’ petition states: “Plaintiffs allege that the progesterone
injection administered to Shana Lenoir to prevent preterm labor was not an FDA-approved use of
the drug and therefore, the prescription of the 17-hydroxyprogesterone (17-OHP) is considered
an off-label use of the drug.” CR 123. And Paragraph 39 of the Lenoirs’ petition states:
“Plaintiffs allege that although the American College of Obstetricians and Gynecologists
(ACOG) has recommended the use of 17-alpha hydroxyprogesterone caproate (17P) for the
prevention of pre-term labor, this is not the drug that was administered to Shana Lenoir.” Id.

                                              4
      Finally, the Lenoirs misleadingly cite their allegation in Paragraph 46 that

“Defendant ANGELA MATHEWS [sic] engaged in several acts and omissions

constituting negligence including: … A. Administering an injection without a

physician order.” Reply Br. at 14-15 (citing CR 124, ¶ 46(A)). But that allegation

does not support the Lenoirs’ new theory that Nurse Matthews allegedly

administered a medication different from the one prescribed by Dr. Gonski. The

allegation, on its face, merely refers to allegations made earlier in the Lenoirs’

petition that the injection of the medication was not ordered by a licensed

physician. Specifically, allegations that: (1) Dr. Gonski “was not a ‘physician’

with the authority to order the progesterone injection administered by Defendant

ANGELA MATHEWS or the authority to delegate the administration of the

progesterone injection to Defendant ANGELA MATHEWS because Gonski only

had a physician-in-training permit” (CR 122, ¶ 30); (2) Nurse Matthews allegedly

administered the medication despite knowing that Dr. Gonski “was only a second

year resident with a physician-in-training permit who was not being supervised by

an attending physician” (CR 123, ¶ 36); and (3) Nurse Matthews “is considered to

have been practicing medicine without a license by administering the progesterone

injection to Shana Lenoir” (CR 123, ¶ 37).

      The absence of any allegation in the Lenoirs’ petition that Nurse Matthews

negligently administered a different medication from the one prescribed by Dr.


                                        5
Gonski is supported by the report of their expert Dr. Frank J. Battaglia. First Supp.

CR 19-29. Nowhere in Dr. Battaglia’s report does he opine that Nurse Matthews

administered a medication different from the one prescribed by Dr. Gonski or that

the administration of a medication different from the one prescribed by Dr. Gonski

proximately caused the Lenoirs’ damages. Id. Instead, as to the Lenoirs’ allega-

tions against U.T. Physicians, Dr. Battaglia merely opined that Nurse Matthews

administered the medication without a valid order from a licensed physician:

      Angela Matthews, LVN injected the progesterone into Ms. Lenoir on
      April 8, 2010 without a valid order from a licensed medical physician.
      Thus, the standards of nursing care dictated that Angela Mathews,
      LVN should not have given the injection as ordered by Dr. Gonski,
      the physician in training, and/or sought approval or in this case
      disapproval, for said injection from a fully licensed member of the
      medical staff.

First Supp. CR 28.

      Additionally, nowhere in Dr. Battaglia’s report is there an assertion that

Nurse Matthews negligently administered another type of progesterone from the

one Dr. Gonski prescribed. In fact, Dr. Battaglia opined that no progesterone of

any type should have been prescribed or administered. First Supp. CR 22-29 (e.g.,

CR 24: “Thus, the standard of medical care dictate [sic] that Dr. Gonski should

have never ordered the progesterone injection to Ms. Lenoir on April, 8, 2010”).

      Accordingly, based on the Lenoirs’ actual allegations – as evidenced in their

petition and supported by their own expert – the Lenoirs’ allegations of medical


                                         6
negligence are not for Nurse Matthews’ administration of the wrong form of

progesterone. And as previously shown in U.T. Physicians’ briefing, the Lenoirs

have failed to satisfy their burden to prove that their claims fall within the scope of

the TTCA’s waiver of immunity provisions. See, e.g., Dallas Area Rapid Transit

v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (in determining whether a claim falls

within the TTCA’s waiver of immunity provisions, courts must “consider the facts

alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the

evidence submitted by the parties”); City of N. Richland Hills v. Friend, 370

S.W.3d 369, 372-73 (Tex. 2012) (rejecting plaintiffs’ attempt to artfully plead use

of tangible personal property); Univ. of Tex. Med. Branch at Galveston v. Tatum,

389 S.W.3d 457, 462 (Tex. App.–Houston [1st Dist.] 2012, no pet.) (courts must

“look to the true nature of the pleadings to determine whether a plaintiff’s claims

are an attempt to artfully plead around the requirements of the TTCA”).

III.   The Lenoirs’ New Negligence Theory Still Does Not Fall Within Any of
       the TTCA’s Waiver of Immunity Provisions

       But even if this Court concludes that the Lenoirs properly preserved and

pled their new argument that Nurse Matthews allegedly administered a medication

different from the one prescribed by Dr. Gonski, the Lenoirs’ argument fails for a

third reason – such argument, as the Lenoirs themselves characterize it, does not

fall within the TTCA’s waiver of immunity provisions. In their reply brief, the

Lenoirs characterize their new negligence theory as follows: “Dr. Gonski’s order

                                            7
for the progesterone injection is quoted in ¶17 of the petition, but the order does

not specify what kind of progesterone was supposed to be administered to Shana

Lenoir. … Instead, Nurse Matthews decided on her own what progesterone to

administer and it turned out not to be the right one.” Reply Br. at 14. The Lenoirs’

characterization of their new negligence theory establishes that it is based on Nurse

Matthews’ allegedly negligent exercise of nursing judgment – i.e., Nurse

Matthews’ allegedly negligent exercise of nursing judgment regarding what type of

progesterone to administer when Dr. Gonski’s order did not specifically indicate

which type of progesterone to use. Thus, the Lenoirs’ new negligence theory does

not fall within the TTCA’s waiver of immunity because there is no negligent use of

tangible personal property. Resp. Br. at 44-49 (citing e.g., Kamel v. Univ. of Tex.

Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686 (Tex. App.–Houston [1st Dist.]

2010, pet. denied); Univ. of Tex. Med. Branch at Galveston v. Qi, 402 S.W.3d 374,

389-90 (Tex. App.–Houston [14th Dist.] 2013, no pet.); Univ. of Tex. Health Sci.

Ctr. at Houston v. DeSoto, 401 S.W.3d 319, 326 (Tex. App.–Houston [14th Dist.]

2013, pet. denied); Univ. of Tex. Med. Branch at Galveston v. Malveaux, 2010 Tex.

App. LEXIS 6054, at *11-*19 (Tex. App.–Houston [14th Dist.] July 29, 2010, pet.

denied); Mitcham v. Univ. of Tex. Med. Branch at Galveston, 818 S.W.2d 523,

524-25 (Tex. App.–Houston [14th Dist.] 1991, writ denied)).




                                         8
IV.   Allowing the Lenoirs to Make New Allegations in Their Reply Brief
      Would Promote Gamesmanship

      A final reason why this Court should reject the Lenoirs’ new negligence

theory is that it would encourage pleading gamesmanship by encouraging parties to

adopt irreconcilably conflicting positions in order to defeat motions to dismiss filed

by different defendants or raise arguments for the first time in the history of the

litigation in an appellate reply brief, as has happened in this case. The Lenoirs’

new negligence theory is nothing more than a sham allegation asserted for the first

time in her reply brief on the merits in this appeal for the sole purpose of

circumventing U.T. Physicians’ sovereign immunity. This Court should not allow

such sham pleading. See, e.g., Tatum, 389 S.W.3d at 462.

                                  CONCLUSION

      For the reasons stated above, U.T. Physicians respectfully requests that this

Court: (1) affirm the trial court’s August 14, 2014 order granting U.T. Physicians’

Plea to the Jurisdiction and Motion to Dismiss With Prejudice; and (2) grant U.T.

Physicians any and all other relief to which it may be entitled.




                                          9
Respectfully submitted,

NORTON ROSE FULBRIGHT US LLP


By     /s/ Warren S. Huang
       David R. Iler
       State Bar No. 10386480
       david.iler@nortonrosefulbright.com
       Warren S. Huang
       State Bar No. 00796788
       warren.huang@nortonrosefulbright.com
       Jaqualine P. McMillan
       State Bar No. 24082955
       jaqualine.mcmillan@nortonrosefulbright.com
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone:(713) 651-5151
Facsimile: (713) 651-5246




  10
                                      KEN PAXTON
                                      Attorney General of Texas

                                      CHARLES E. ROY
                                      First Assistant Attorney General

                                      JAMES E. DAVIS
                                      Deputy Attorney General for Civil Litig.

                                      KARA L. KENNEDY
                                      Chief, Tort Litigation Division


                                      By     /s/ Jason Warner                        *
                                             Jason Warner
                                             Asst. Attorney General
                                             State Bar No. 24028114
                                             jason.warner@texasattorneygeneral.gov
                                      P.O. Box 12548, Capitol Station
                                      Austin, Texas 78711-2548
                                      Telephone:(512) 463-2197
                                      Facsimile: (512) 463-2224

                                      * Signed By Permission



                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

counsel – in reliance upon the word count of the computer program used to prepare

this document – certifies that this brief contains 2,216 words, excluding the words

that need not be counted under Texas Rule of Appellate Procedure 9.4(i)(1).


                                                      /s/ Warren S. Huang
                                                        Warren S. Huang

                                        11
                        CERTIFICATE OF SERVICE

      I hereby certify that a copy of Sur-Reply Brief of Appellee U.T. Physicians

was served pursuant to Texas Rule of Appellate Procedure 9.5 electronically

through the electronic filing manager and/or by electronic mail on April 13, 2015,

upon the following:

                            Mr. Joseph M. Gourrier
                           THE GOURRIER LAW FIRM
                         530 Lovett Boulevard, Suite B
                             Houston, Texas 77006
                           joseph@gourrierlaw.com
                       (Counsel for Appellants-Plaintiffs)


                                                     /s/ Warren S. Huang
                                                       Warren S. Huang




                                       12
