Plaintiff’s Amended Motion for Summary Judgment

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by Heygood Orr and Pearson

Summary:  This case was a medical negligence case.  The Plaintiffs, represented by Heygood, Orr & Pearson, alleged that the Defendant physician assistant and his supervising physician were negligent in failing to diagnose the patient’s necrotizing fasciitis (flesh eating bacteria), which developed after a minor slip and fall days before.  This condition caused her death a couple of days later.  In their answer to the lawsuit, the Defendants asserted that the Plaintiffs’ case was barred by Texas Civil Practice and Remedies Code Section 74.153 which limits medical malpractice cases involving emergency medical care to cases where the healthcare providers were guilty of willful and wanton negligence.  This motion asked the trial court to reject this defense because the medical care at issue did not meet the definition in the statute for “emergency medical care.” This brief was filed by Heygood, Orr & Pearson on behalf of their client.

                                                                     CAUSE NO. DC-10-16758-l

DONALD HANING, RACHEL RENEE                       §                             IN THE DISTRICT COURT

HUDSON, EMILY ANN HANING,                              §

and JUSTIN WAYNE HANING,                                  §

individually and as heirs to and on behalf of             §

the ESTATE OF KAREN JEAN HANING,                 §

Plaintiff,                                                                            §                            193rd JUDICIAL DISTRICT

vs.                                                                                       §

DEBORAH S. BOYER, M.D., and                               §

HERMAN J. SPLATT, JR.                                            §

Defendants.                                                                     §                           DALLAS COUNTY, TEXAS

 

PLAINTIFFS’ AMENDED TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

 COME NOW, DONALD HANING, RACHEL RENEE HUDSON, EMILY ANN HANING and JUSTIN WAYNE HANING, individually and as heirs to and on behalf of the ESTATE OF KAREN JEAN HANING, Plaintiffs, and file this Amended Traditional and No Evidence Motion for Summary Judgment and would respectfully show the Court the following:

I.                   FACTUAL AND PROCEDURAL BACKGROUND

This is an action for wrongful death of the decedent, Karen Haning (“Haning”), who died on January 8, 2009.  Five days prior to her death, Decedent slipped and fell at a casino, striking the underside of her upper right arm on a railing.  Over the next two days, Haning’s arm gradually swelled, grew increasingly sore and became discolored, and she eventually began to feel ill.  On the morning of January 6, 2009, Haning was taken by her husband to RHD Memorial Hospital (“RHD”) in Farmers Branch, Texas.  Decedent was admitted to RHD at approximately 11:41 a.m. and placed under the care of physician assistant Herman J. Splatt, PCA, who was acting under the supervision of Dr Deborah S. Boyer, M.D.   Upon admission, Mr. Splatt examined Haning, and was advised that she had been suffering from nausea, diarrhea and persistent, gradually worsening arm pain.  Mrs. Haning was stable the entire period she was at RHD and was treated as a “non-emergent” patient by Mr. Splatt. (Deposition of Hermann J. Splatt, Jr. (“Splatt Dep.”); p. 22 (Ex. 1).)  The top of her forearm was bruised, swollen and painful.  A flu swab and x-rays were taken.  The test results showed that Haning did not have the flu and that her arm was not broken.  No further tests or examinations were performed.  Haning was diagnosed with a bruise to right forearm and an upper respiratory infection.  She was given Lortab, over-the-counter cold medicine and discharged from RHD that afternoon.

The next day, Haning was still feeling ill and the appearance of her arm had worsened.  As the day wore on, Haning’s condition deteriorated.  Plaintiff Don Haning took his wife to the Medical City Dallas Emergency Room later that evening.  At that time, Haning was unable to walk and was admitted into ICU with confusion, low blood pressure, fever and an extremely swollen and discolored right arm.  Shortly after admission, Haning was diagnosed with a severe flesh-eating bacterial infection.  Surgery was performed to remove the infected arm tissue, but Decedent did not survive.  She died on the evening of January 8, 2009 from multi-system organ failure.

On December 29, 2010, Plaintiffs filed healthcare liability claims against Deborah S. Boyer, M.D. and Herman J. Splatt (“Defendants”), alleging acts or omissions of negligence proximately causing the death of Karen Haning and injuries to Plaintiffs and corresponding damages.  On October 3, 2011, Defendants filed their First Amended Answer to Plaintiffs’ Petition.  Sections VI, XIII and XIV of Defendants’ First Amended Answer assert that Plaintiffs’ alleged injuries arose out of the provision of “emergency medical care” and that Texas Civil Practice & Remedies Code Sections 74.153 and 74.154 apply to this case.

II.                ARGUMENT & AUTHORITIES

                    A.                Sections 74.153 and 74.154 of the Texas Civil Practice & Remedies Code do not apply to Plaintiffs’ claims because Defendants did not               

provide “emergency medical care” to Karen Haning.

 Section 74.153 governs health care liability claims for injuries or death arising from the provision of “emergency medical care” in a hospital emergency department, or in an obstetrical unit or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department. It provides that, for such claims, the claimant:

may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.153.

The statutory definition of “emergency medical care” as used in section 74.153 comprises two elements: (1) the type of care provided (i.e., “bona fide emergency services”), and (2) the circumstances under which those services are provided. Specifically, the legislature defined “emergency medical care” as:

bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(7) (Vernon 2005).

1.                   Defendants’ treatment of Karen Haning was not provided after the “sudden onset” of a medical or traumatic condition.

 As noted above, Chapter 74 defines “bono fide emergency services” as only those services provided following the “sudden onset” of a medical or traumatic condition.  TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(7).  The word “sudden” can refer, among other things, to “an unexpected occurrence,” “marked by abruptness or haste” “made or brought about in a short time.”  Merriam-Websters Online Dictionary available at http://www.merriam-webster.com/dictionary/sudden.  Under this definition, the phrase “sudden onset” adds a restriction to the type of “emergency medical services” for which the protections of Sec. 74.153 and 74.154 may be invoked.  In this case, Ms. Haning’s condition developed slowly and gradually over days.  Her presentation to RHD involved the opposite of a “sudden onset” condition.  As a result, Sections 74.153 and 74.154 don’t apply and the Plaintiffs are entitled to summary judgment.

In fact, the “sudden onset” requirement was central to the analysis in Turner v. Franklin, the primary case relied upon by Defendants, involving the failure to diagnose a fourteen-year-old with testicular torsion.  Turner v. Franklin, 325 S.W.3d 771 (Tex.App.—Dallas 2010, pet denied.)  In Turner, the minor plaintiff awoke in bed one night with “sudden” and “severe” pain to his left testicle.  He was immediately taken by his parents to Presbyterian Hospital Allen.  The ER physician immediately suspected an emergent condition called “testicular tortion” (where the testicle becomes twisted on its own spermadic cord) and ordered scrotal ultrasound.  The images were reviewed by a radiologist who reported no evidence of pathology.  The ER physician subsequently diagnosed the plaintiff with epididymitis, prescribed pain meds and antibiotics, and sent him home.  The minor child’s symptoms worsened over the next several days and, after consulting with an urologist, a new ultrasound was ordered which revealed testicular torsion and a non-viable testicle.  The parents of the minor sued the physician and the radiologist he saw at the ER alleging improper interpretation of the ultrasound and failure to consult with an urologist.  In finding that the protections of the emergency care statute applied, the Court of Appeals repeatedly highlighted the fact that plaintiff went to the emergency department only after experiencing symptoms of a “sudden” and “severe” nature:

[I]t is the severity of the patient’s condition, its rapid or unforeseen origination and the urgent need for immediate medical attention… Here, K.M.T. went to the emergency department after experiencing “sudden” and “severe” pain. … Franklin’s and Cohn’s actions were in response to the sudden onset of acute and severe symptoms…

Id. at 779.

Contrary to Turner, the onset of symptoms in this case materialized gradually, not “suddenly.”  As noted above, the events leading up to Decedent’s admission to RHD began when she slipped at a casino and struck the underside of her right arm on a railing.  Immediately afterwards, Ms. Haning complained of no pain and no problems.  She and her husband continued to play at the casino the remainder of Saturday evening, and Decedent drove them both home the following Sunday with no complaints of pain or discomfort.  (Deposition of Donald Haning (“Haning Dep.”); pp. 67-69 (Ex. 3).)  The following Monday afternoon at approximately 4:00 p.m., Karen Haning expressed to her husband that “her arm hurt.”  (Id.; pp. 70-72.)  Mr. Haning observed a normal-looking “cupcake size” bruise on the underside of his wife’s upper arm and “redness” on the top of her forearm.  (Id.)  The red area was “swollen” but the swelling did not extend to the rest of her arm or to her hands of fingers. (Id. at 73.)   Her arm was painful to the touch, but she continued to do “paperwork” throughout the day.  (Id.; p. 75.)  The following Tuesday, January 6, 2009, the bruising on her upper arm was “about twice as big” and the red area of the forearm “had gotten longer” and showed increased swelling.  (Id.; pp. 78-79)  She had also developed nausea and diarrhea.  (Id.; p. 76)  The “pain was getting worse” and, after Decedent dropped a cup of water, Don Haning finally decided to take his wife to RHD for examination.  (Id.; p. 82)  As this evidence shows, Ms. Haning’s symptoms slowly worsened over the course of several days – from the initial trauma on Saturday night to Tuesday afternoon of the following week – before it was finally decided that a visit to RHD was warranted.  This clearly illustrates a gradual, as opposed to a “sudden” onset of symptoms such as those involved in Turner.  For this reason, Section 74.153 and 74.154 don’t apply and Plaintiffs are entitled to summary judgment.

One case that illustrates the distinction between gradual development of symptoms and “sudden onset” of a condition is Carondelet Health Servs. v. Arizona Health Care Cost Containment Sys. Admin., 182 Ariz. 502, 897 P.2d 1388 (Ariz. Ct. App. 1995).  The issue in Carondelet was whether or not an Arizona hospital should be reimbursed for the cost of emergency services from a joint Medicaid program administered through the State of Arizona (“AHCCCS”).   In that case, a patient suffering from liver cancer was eligible to receive AHCCCS benefits, but qualified only for reimbursement of “emergency medical services.”  Ariz. Admin. Code R9-22-101(38) defined “emergency medical services” as, inter alia, services provided after the sudden onset of a medical condition…” Ariz. Admin. Code R9-22-101(38) (emphasis added).  The facts and evidence presented at the administrative hearing revealed that the patient presented to St. Mary’s hospital for cancer treatment that was immediately necessary.  Id. at 504.  Nonetheless, the Court upheld the administrative panel’s finding that the hospital was not eligible for reimbursement because there was insufficient evidence of “sudden onset” of acute symptoms to come within the definition of emergency medical services.  Id.   The Carondolet case also underscored the significance of the “sudden onset” requirement in the larger context of how “emergency medical treatment,” properly understood, is provided.  The Court in Turner did the same when it emphasized that:

[T]he legislature [defined] “emergency medical care…according to the type of services provided—including both diagnosis and treatment—and the circumstances under which those services were provided—i.e., after the sudden onset of a serious medical condition where failure to provide immediate medical attention could reasonably be expected to result in dire consequences for the patient.

Turner, 325 S.W.3d at 779 (emphasis added).  In this case, the circumstances of treatment were not provided incident to the “sudden onset” of symptoms.  Therefore, such services did not constitute “emergency medical care” and the protections of §§ 74.153 and 74.154 do not apply.  See also, Kotler v. PacifiCare of California (2005) 126 Cal.App.4th 950 [24 Cal. Rptr. 3d 447] (Flu-like symptoms that developed gradually over the course of several weeks did not fall within a health plan’s definition of medical “emergency” because there was no “sudden onset” of symptoms.); Greenery Rehabilitation Group v. Hammon, 893 F. Supp. 1195, 1206 (N.D.N.Y 1995) (Sudden onset requirement met in for injuries sustained in following circumstances: car accident; gunshot; severe beating).

2.                  Defendants admit that they did not provide “emergency medical care” to Karen Haning as defined by the Emergency Care statute.

Not only was Defendants’ care of Ms. Haning not provided after the “sudden onset” of a medical or traumatic condition, Defendants themselves admitted in their depositions that the other requirements necessary to establish the provision of “emergency services” were not met.    Again, the Texas legislature defines bona fide emergency services as those provided “after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity…[] such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”  § 74.001(a)(7).  By Defendants’ own admission, Ms. Haning presented to RHD on January 6, 2008 with a patently non-emergent condition.  According to Defendant Splatt, Karen Haning did not have any conditions that would place her health in serious jeopardy and, for this reason, he treated her as a non-emergency patient.

Q         So you were not providing any type of life-threatening-type care for her, correct?

A         No, sir.

Q         She did not have any conditions that were reasonably expected to place her health in serious jeopardy, correct?

A         Not to my awareness.

Q         Am I correct that you did not perceive Ms. Haning’s condition to be an emergency?

A         That is correct.

Q         Am I correct that you did not treat it as an emergency?

A         That is correct.

Q         She was treated as a non-emergency patient, correct?

A         Yes, sir.

(Splatt Dep.; p.  22 (Ex. 1).)  For her part, Defendant Boyer agreed that Mrs. Haning was stable the entire period she was at RHD on January 9, 2009 and was appropriately treated as a non-emergent patient.

Q.        So you have no reason to believe that she was anything but stable the entire time she was there; is that correct?

I have no reason to believe otherwise.

***

Q.        On Exhibit No. 3, there’s a section called triage category. Do you see that?

A.           Uh-huh.

Q.        It says triage acuity nonurgent. What does that mean?

A.        The nurse did not find this to be an emergent patient.

Q.        And based on your review of the chart, do you agree?

A.         Yes.

Boyer Dep.; p. 55-56 (Ex. 2).)  Dr. Boyer also agreed that the care and treatment provided to Mrs. Haning did not meet the standard for “emergency medical services” as defined by Chapter 74:

Q.        I want you — I want you to read that definition of emergency medical care and tell me whether you agree that that’s not what was provided to Ms. Haning on January 6th, 2009.

A.        Well, I mean, just bit by bit after the sudden onset of a medical or traumatic condition, which she didn’t have a sudden onset, it had been two or three days. So she had no acute symptoms. It says manifesting itself by acutesymptoms. She had no acute symptoms. She did not have severe pain. It said she was tender, but I didn’t see severe pain documented anywhere. Such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions or serious disfunction of a bodily organ or part. No, there was nothing here to suggest she had imminent threat to her life or a limb.

***

Q.        So you would agree, wouldn’t you, that at least how the phrase emergency medical care is defined here, in at least — in at least three different respects, the care provided to Ms. Haning did not meet that definition?

A.       No. I would agree, she does not meet those definitions.

Boyer Dep.; pp. 56-57; 60-61 (Ex. 2).) (emphasis added)  Simply stated, the care provided by Defendants did not occur after the “sudden onset of a medical or traumatic condition” manifested by “acute symptoms” where the “absence of immediate medical attention could not reasonably be expected to result in placing [Mrs. Haning’s] health in serious jeopardy.”  Rather, the full circumstances of Karen Haning’s care at RHD, including both diagnosis and treatment, were emphatically non-emergent. See Turner, 325 S.W.3d at 779.  Since Defendants themselves admit that they did not provide “emergency medical services” to Karen Haning, as defined by § 74.001(a)(7), they are not entitled to the protections of the emergency care statute.

3.                  Defendants did not provide “emergency medical care” to Karen Haning because they never perceived their care and treatment of Karen Haning to be emergent in nature.

Consistent with the purposes underlying § 74.153, Courts in Texas have held that if the physician did not perceive the situation as an emergency or did not treat the condition as an emergency at the time care was rendered, such care does not qualify as “emergency medical care” and the “wilfull and wanton” negligence standard of § 74.153 does not apply.  For instance, in Guzman v. Mem’l Hermann Hosp. Sys., 2009 U.S. Dist. LEXIS 23445 (S.D. Tex. Mar. 23, 2009), a seven-year old child fell ill and was taken by his parents to the emergency room.  The child presented with nausea and cough.   The emergency room doctor who saw the child performed a routine pulmonary exam and determined that the child was clinically stable.  He was given fluids to relieve the vomiting and several blood tests were ordered.  The ER doctor reviewed some (but not all) of the blood test results.  The child was diagnosed with a viral infection and discharged.  Within an hour of discharge, additional blood test results were released by the lab indicating that the child actually suffered from a dangerous bacterial infection.  The child returned to the emergency room the following morning and was diagnosed with pneumonia and sepsis which, ultimately, resulted in organ damage.  The parents of the child filed suit against the ER physician claiming that he was negligent in, among other things, failing review all of the blood test results before sending the child home.  The defendant argued that he should be held to the “willful and wanton” standard set forth in the emergency care statute.  In rejecting this claim, the court stressed how a physician’s state of mind at the time the care is given is central to the determination of whether the protections of the emergency care statute are warranted:

Dr. Haynes did not treat the child as requiring emergency medical care. … [T]he information he received from the history, the interview, and the examination did not lead Dr. Haynes to believe that the child was suffering from an emergency medical condition. Dr. Haynes testified that when he diagnosed a viral syndrome and decided to send the Guzman’s son home, the child was “in no respiratory distress . . . no longer vomiting . . . no longer hurting anywhere . . . and [] was comfortable going home.” There are no facts showing that Dr. Haynes’s encounters with the child on February 12, 2006 were perceived as or treated as emergencies. The record shows that Dr. Haynes’s actions were not taken in response to “an unforeseen combination of circumstances that call[ed] for immediate action without time for full deliberation.” Because Dr. Haynes did not provide “emergency medical care,” he and MSEP may not rely on the willful and wanton negligence standard found in § 74.153.

Id. at *25-26. The Court went on to note that the legislative history of Sec. 74.153 supported this holding since “the willful and wanton negligence standard was intended to offer doctors protection from liability for decisions made and actions taken during sudden emergency situations with no time for deliberation and no time to learn about the patient’s history.”   Id. at *26 (emphasis added).  Stated another way, the emergency care statute is intended to protect physicians and other healthcare providers who are called upon to make rapid decisions about a patient’s care without the benefit of premeditation and frequently in the absence of complete information about the patient’s medical history.  For this reason, the healthcare provider’s perception as to whether he is providing care and treatment in this setting is critical to the question of whether he is entitled to the protections of the statute.  It is also for this reason that the willful and wanton negligence standard will not apply to care rendered “after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient.” Id; see also, Hawkins v. Montague County, 2010 U.S. Dist. LEXIS 116361 (N.D. Tex. Nov. 1, 2010) (“Emergency medical care” as defined under Section 74.001 “does not apply if the emergency room physician did not perceive the situation as an emergency or did not treat the condition as an emergency.”)  Similarly in the Turner case, relied upon heavily by Defendants, the physicians immediately suspected and provided treatment for what they perceived to be an emergency medical condition – testicular torion – even though that diagnosis was erroneously ruled out.

By this standard, neither Defendant Splatt nor Defendant Boyer provided “emergency medical care” to Karen Haning.  As noted above, Ms. Haning presented to Mr. Splatt on January 6, 2008 with what was treated by Defendants as a non-emergent medical condition.  Defendant Splatt did not view Karen Haning’s condition as an “emergency” and he treated her as a non-emergency patient.  (Splatt Dep.; p.  22 (Ex. 1).)  Dr. Boyer agreed that Ms. Haning did not have the “sudden onset” of a medical condition, did not have “acute symptoms,” and did not present in a condition where the “absence of immediate medical attention could not reasonably be expected to result in placing [Mrs. Haning’s] health in serious jeopardy.”  (Deposition of Deborah Boyer (“Boyer Dep.”); pp. 51-52; 56-57 (Ex. 2).)  Like the child patient in Guzman (and unlike the child patient in Turner), none of the care rendered to Karen Haning was perceived or treated as “emergency medical care.”

Defendants will undoubtedly argue that, as it turned out, Karen Haning actually did present to RHD on January 6 with an emergent condition.  In support, Defendants will cite to the Plaintiffs’ pleadings and expert reports noting that, when she initially presented to RHD on January 6, 2008, Karen Haning was suffering from life-threatening necrotizing fasciitis.  Defendants may also argue that Plaintiffs themselves perceived Karen Haning’s condition to be an emergency and, for that reason, transported her to RHD for evaluation.  Critically, however, there is no evidence that her condition was ever perceived or treated by the Defendants as an emergency.  In fact, the undisputed evidence supports the opposite; namely, that the decisions regarding her care (and preceding her misdiagnosis) were not made in the setting of a perceived sudden emergency situation with no time for deliberation and no time to learn about the patient’s history.   By their own admission, Mr. Splatt (who provided direct patient care to Mrs. Haning) and Dr. Boyer (who supervised Mr. Splatt and reviewed Karen Haning’s medical chart) never perceived or treated Ms. Haning’s condition as serious, life-threatening or otherwise “emergent.”  “Emergency is an unforeseen combination of circumstances that calls for immediate action without time for full deliberation.” BLACK’S LAW DICTIONARY 523 (6th ed. 1990).  Defendants testified unequivocally that Karen Haning’s condition was never detected, perceived or treated as an “emergency” by either Defendant.  The fact that Karen Haning suffered necrotizing fasciitis when she presented to RHD is, of itself, irrelevant to the applicability of the emergency care statute because this life-threatening condition went undetected and she was never treated as an emergent patient.  Plaintiffs’ assessment of Decedent’s condition on January 6, 2008 is similarly irrelevant as the statute and supporting case law make clear that it is the perception and treatment of the health care provider that determines whether the statute applies.

As noted above, if the treating provider did not perceive the circumstances of medical care as “emergent,” and did not treat the medical condition as an emergency, such treatment not qualify as “emergency” medical care and the “wilfull and wanton” negligence standard does not apply.  Nor are Plaintiffs claiming that the misdiagnosis of Decedent with a non-emergent condition, in and of itself, takes the Defendants’ care outside the scope of “emergency medical care” as defined by Chapter 74.  Again, the issue is not whether a health care provider diagnosed the patient with an emergent or non-emergent condition, but whether the Defendant ever perceived or treated Decedent as an emergent patient to begin with.   The evidence conclusively establishes that the Defendants in this case did not.  For this reason, they cannot be afforded the protections of a heightened standard of negligence provided for under §§ 74.153 and 74.154.

B.                 Defendants have no evidence that they provided Karen Haning with “Emergency Medical Care” within the meaning of Sections 74.153 and 74.154.

Furthermore or in the alternative, Defendants have no evidence that they provided Karen Haning “emergency medical care” on January 6, 2009.  If the health care provider never treats the patient as requiring emergency medical care and never takes action to “stabilize” an emergency medical condition, then no fact issue arises as to whether the provider provided “emergency medical care” which affords the protections of §§ 74.153 and 74.154. Hawkins, 2010 U.S. Dist. LEXIS 116361; Guzman, 2009 U.S. Dist. LEXIS 23445.   In this case, there is no evidence that Defendants Boyer and/or Splatt provided “emergency medical care” to Karen Haning on January 6, 2008; namely, that they provided bono fide emergency services to Haning after she experienced the sudden onset of a medical or traumatic condition manifesting itself in acute symptoms of sufficient severity such that the absence of immediate medical attention could have reasonably been expected to place Ms. Haning’s health in serious jeopardy.  To the contrary, Dr. Boyer specifically disavowed this as an accurate description of the care provided to Mrs. Haning on January 6, 2009. (Boyer Dep.; pp. 56-57 (Ex. 2).)   Because they have no evidence that they provided emergency care to Karen Haning, Defendants cannot invoke the protections of §§ 74.153 and 74.154.  Plaintiffs should be granted summary judgment on the non-applicability of these provisions and Sections VI, XIII and XIV of Defendants’ First Amended Answer should be stricken.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)