ORAL ARGUMENT REQUESTED 

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 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 

ACCEPTED

12-15-00014-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

6/3/2015 3:52:12 PM

CATHY LUSK

CLERK

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

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
ii

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
iii

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)
iv

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
v

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
vi

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
vii

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
1

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);
12

• 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 pretrial 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.

THE LAW OFFICE OF RYAN KREBS

805 W. 10th Street, Suite 300

Austin, Texas 78701

ryan@ryankrebsmdjd.com

VIA E-SERVE & E-MAIL

/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. § 

§ 

EAST TEXAS MEDICAL CENTER § 

D/B/A EAST TEXAS MEDICAL CENTER § 

EMERGENCY MEDICAL SERVICES, § 

§ 

§ 

§ 

§ 

Defendant. § 

FINAL JUDGMENT 

0 

SMITH COUNTY, TEXAS 

7th JUDICIAL DISTRICT 

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 
0 

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 
0 

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 

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. 

EAST TEXAS MEDICAL CENTER 

d/b/a EAST TEXAS MEDICAL 

EMERGENCY MEDICAL SERVICES, 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

FILED 

LOIS RCXoERS 

DISTRiCT CLERK 

COURT IN AND FOR 

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 
0 

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, 
0 

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:$ 71 260 .60 

2. Pecuniary loss that, in reasonable probability, will be sustained in the future. 

3 &taoo. Do 

I 

Answer: 

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 J ody 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 __ _ 

Page 379 
'' 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 1 c:;-o () , D 0 

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 • a 0 

4. Loss of companionship and society that, in reasonable probability, Destiny Delaune 

will sustain in the future. 

Answer:$ "2 1 r;-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 c;-Q 0 • (j) I 

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 for1. 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 
.• 

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 

(/) ~ 0 ~ :;;: :s --c 

signed the certificate below. J ""' ~;)_ ,J :.!} 

Our verdict is not unanimous. Eleven of us have agreed to each and every ~-~- an~ave~ ~ 

~~ 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. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

m/ffls!ln tJl-tT2(<:~ 1-1/ 

-----~'-\l r;t k V\.1 1 

}.. " d ceo- 2:, . \.D~ ,IS.:u-.n 

Srd.c¥ 7' 

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; 

and at ~m Frltnd of DALTON DELAt~ DESTINY DELAU!'I'E, 

ud DEE AN.'i DELAUNE, Millon, 

Plaladtrt, 

y, 

EAST TEXAS MEDICAL CENTER 

EMS. LINDA MOORE, 1111d 

U.'iDY SPUllGERS, 

I • 

f 

I 

I 

I 

I 

0 

I 

I 

• • • I 

' I 

lDthe 

SMlm COtlNTY, TEXAS 

7tll Jt'DJCIAL DISTRICT 

Order on •• d a• P a '! 

w 2 !!! LILli Ill 1 m Defeudantt• 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 NoEY!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 DEFENSIVE 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 Publication August 17,2012. 

Motion for rehearing on petition for review denied by 

Wansey v. Hole, 2012 Tex. LEXIS 648 (Tex., Aug. 17, 

2012) 

PRIORHISTORY: [**I] 

ON PETITION FOR REVIEW FROM THE COURT 

OF APPEALS FOR THE THIRTEENTH DISTRICT OF 

TEXAS. 

Wansey v. Hole, 2011 Tex. App. LEXIS 2594 (Tex. App. 

Corpus Christi, Apr. 7, 2011) 

COUNSEL: For Wansey, Michael B., PETITIONER: 

Mr. William L. Hubbard, Attorney at Law, Edinburg TX; 

Mr. Steve Efthimiou, Attorney at Law, Brownsville TX; 

Mr. Thomas G. Rayfield, Law Offices of Thomas Rayfield, McAllen TX; Mr. Jason Roger Mann, Jason R 

Mann & Associates, HARLINGEN TX. 

For Hole, Cheryl D., RESPONDENT: Ms. Ida Cecilia 

Garza, Gault Nye & Quintana LLP, McAllen TX; Mr. 

Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen TX. 

OPINION 

[*246] PER CURIAM 

In this case, we must decide whether a plaintiff may 

recover on a claim for negligent hiring and supervision 

despite suffering [*24 7] no harm at the hands of the 

employee who was allegedly negligently hired. We hold 

that a negligent hiring claim requires that some harmful 

or negligent conduct of an employee--one hired pursuant 

to the defendant's negligent hiring or supervision practices--proximately caused the injury complained of. Accordingly, pursuant to Texas Rule of Appellate Procedure 59.1, without hearing oral argument we reverse the 

court of appeals' judgment and render judgment for petitioner. 

Cheryl and Ronald Hole, both attorneys, enrolled 

their minor daughter in a driving [**2] school owned 

and operated by Michael B. Wansey. One evening, when 

Ronald arrived at the business to pick up his daughter, he 

was unable to find her inside. He proceeded to a door 

that stood ajar at the back of the building. Opening the 

door, Ronald found her standing outside, in the dark, 

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 

wrongdoing. 

Thereafter, the Holes removed their daughter from 

the course and demanded a full refund from Wansey, 

since she would have to start a new course from the beginning. Wansey refused to offer any explanation for the 

instructor's behavior, and disclaimed any responsibility 

for his employee's behavior after class hours. Wansey 

also refused to issue a full refund, but instead sent a 

check for only eighteen dollars--the pro-rated cost of the 

four hours of instruction remaining in the course. 

Cheryl Hole--the lone plaintiff in this case--sued 

Wansey, not for harm endured by her daughter in the 

allegedly inappropriate incident with the driving instructor, but for the cost of the driving course, alleging breach 

of contract and grossly negligent [**3] or malicious 

hiring, training, supervision, or retention. The jury retumed a verdict in favor of Hole, finding that Wansey's 

negligent conduct had proximately caused harm to Hole 

and that Wansey had breached the contract. The jury 

awarded Hole $225 (the cost of the course) in compensatory 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 

breach of contract claim and the award of attorney fees, 

but affirmed the negligent hiring judgment and the compensatory and punitive damages. S.W.3d , The 

court of appeals reasoned that Hole sustained harm in the 

form of the un-refunded cost of the driving course, and 

that Wansey's negligent hiring practices proximately 

caused those damages. We disagree. 

Though we have never expressly set out what duty 

an employer has in hiring employees, or said that a negligent hiring claim requires more than just negligent hiring practices, there is a broad consensus among Texas 

courts that such a claim requires that the plaintiff suffer 

some damages from the foreseeable misconduct of an 

employee hired pursuant to the defendant's negligent 

practices. See Brown v. Swett & Crawford of Tex., Inc., 

178 S. W.3d 373, 384 (Tex. App.--Houston [1st Dist.] 

2005, no pet.) [**4] ("To prevail on a claim for negligent hiring or supervision, the plaintiff is required to 

establish not only that the employer was negligent in 

hiring or supervising the employee, but also that the employee committed an actionable tmi against the plaintiff."); Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex. 

App, --San Antonio 1999, no pet.) overruled in part on 

other grounds by Hoffinann-La Roche Inc. v. Zeltwanger, 

144 S. W.3d 438, 447-48 (Tex. 2004); Mackey v. U.P. 

Enters., Inc., 935 S.W.2d 446, 459 (Tex. App.--Tyler 

1996, no writ). We have explicitly established this requirement in negligent [*248] entrustment cases, 

which are factually similar to negligent hiring claims. 

Schneider v. Esperanza Transmission Co., 744 S, W.2d 

595, 596 (Tex. 1987) ("[T]here must be a showing , , , 

that the [employee] driver's negligence proximately 

caused the accident."); see also TXI Transp. Co. v. 

Hughes, 306 S. W.3d 230, 240 (Tex. 2010) (concluding 

that negligent hiring should have a similar requirement to 

negligent entrustment cases, which requires that the employee's negligent conduct harm the plaintiff). 

In this case, Hole did not present legally sufficient 

evidence of any harm caused by an employee of Wansey's [**5] driving schooL Even had Cheryl Hole sued 

on behalf of her daughter, she presented no evidence that 

the driving instructor actually engaged in inappropriate 

behavior--indeed, Ronald Hole conceded in his trial testimony that he does not know that anything illegal happened, but rather just thought the situation was inappropriate. Hole also presented no evidence that proper hiring 

and supervision policies would have prevented the incident, or that her daughter suffered any harm. Rather, the 

only harm presented in this case was the purely economic harm--caused to Cheryl as an indirect result of the 

alleged incident--of the loss of the driving course tnition. 

Besides being an indirect, attenuated harm, the loss of 

the tnition was harm to the subject matter of the contract 

between the Holes and Wansey, which is not recoverable 

in tort. 1 See Sw. Bell Tel. Co. v. DeLanney, 809 S. W.2d 

493, 494 (Tex. 1991); Sterling Chems., Inc. v. Texaco 

Inc., 259 S.W.3d 793, 796 (Tex. App.--Houston [1st 

Dist.] 2007, pet. denied) ("Simply stated, under the economic loss rule, a duty in tort does not lie when the only 

injury claimed is one for economic damages recoverable 

under a breach of contract claim. 11 ), 

The court [**6] of appeals found the evidence legally insufficient to support the jury's 

breach of contract finding, and Hole did not appeal that finding to this Court. 

A negligence finding requires a duty, breach, and 

damages proximately caused by that breach. Doe v. Boys 

Clubs., 907 S.W.2d 472, 477 (Tex. 1995). Because Hole 

presented no evidence of harm caused by an employee 

hired pursuant to Wansey's hiring policies, we hold she 

did not present legally sufficient evidence of damages 

proximately caused by Wansey's alleged negligence. We 

reverse the judgment of the court of appeals insofar as it 

affirmed the award of compensatory and exemplary 

damages for negligent hiring and supervision, and render 

judgment for Wansey. In all other respects the court of 

appeals' judgment is affirmed. 

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 Publication January 27, 2004. 

Petition for review denied by Aguilera-Sanchez v. 

Wal-Mart Stores, Inc., 2004 Tex. LEXIS 33I (Tex., Apr. 

9, 2004) 

Motion for rehearing on petition for review denied by 

Aguilera-Sanchez v. Wa/-Mart Stores, Inc., 2004 Tex. 

LEXIS 1373 (Tex., July I6, 2004) 

PRIOR HISTORY: [*I] From the 229th Judicial 

District Court, Starr County, Texas. Trial Court No. 

DC-95-61. Honorable Alex W. Gabert, Judge Presiding. 

DISPOSITION: REVERSED AND RENDERED. 

COUNSEL: FOR APPELLANTS: Chad M. Forbes, 

Lucy Haroutunian, Thomas C. Wright, The Wright Law 

Firm, Houston, TX. Russeii H. McMains, Law Offices 

OfRusseii H. McMains, corpus Christi, TX. 

FOR APPELLEES: Thomas H. Crofts, Jr., Christopher 

A. Lotz, Crofts & Caiiaway, P.C., San Antonio, TX, 

James P. Sharp, Jr., Sharp Law Firm, Houston, TX. 

JUDGES: Opinion by: Karen Angelini, Justice. Dissenting opinion by: Alma L. Lopez, Chief Justice. Sitting: Alma L. Lopez, Chief Justice, Karen Angelini, Justice, Phylis J. Speedlin, Justice. 

OPINION BY: Karen Angelini 

OPINION 

Appeiiants Wai-Mart Stores, Inc. ("Wai-Mart") and 

Wayne Cruickshank appeal the trial court's judgment 

arguing that there is insufficient evidence to support the 

jury's findings, that the trial court erroneously denied 

their motion to transfer venue, and that the judgment 

improperly awards a double recovery. Because we find 

that the evidence is legally insufficient to support the 

jury1s findings of malicious prosecution, intentional infliction of emotional distress, and negligent hiring, we 

reverse and render judgment in favor of Wal-Mart and 

Cruickshank. 

BACKGROUND 

Cruickshank, a loss prevention investigator for 

Wal-Mart had received an internal Wal-Mart report describing the infamous "Mickey Mouse" gang. This gang 

had been shoplifting from Wal-Mart and other retailers. 

According to the report, the modus operandi [*2] of the 

gang was to use juveniles to steal the merchandise while 

the adults acted as look-outs. The juveniles would line 

the shopping baskets with cardboard paper, place merchandise in the basket, and then place clothing on top of 

the basket to hide the merchandise. The juveniles would 

then walk out with the merchandise. If the juveniles were 

apprehended leaving the store, the adults could flee the 

scene and avoid prosecution. Meanwhile, the juveniles 

would eventuaiiy be released from police custody without facing prosecution. 

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 

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 electronics department where they were directed by adults to 

place merchandise into the shopping carts. As the juveniles attempted to leave the electronics department with 

the merchandise, Cruickshank intercepted the juveniles 

and detained them for questioning. While the juveniles 

were being detained, all of the adults, except a man and a 

woman whom Cruickshank suspected were the juveniles' 

parents, [*3] left the store. Cruickshank interrogated 

the juveniles in a back room in front of these "suspected11 

parents; however, the "suspected11 parents and the juveniles all denied knowiug one another. Cruickshank then 

called the Round Rock Police Department. Sergeant Jack 

Abbott was dispatched to the store. When Abbott arrived, the "suspected" parents left the store. The man left 

in a black Chevrolet Blazer while the women departed in 

an orange Chevrolet. 

According to Cruickshank, there were five security 

cameras in the electronics department. Two cameras in 

the ceiling were not working. Two camcorders on the 

back aisle acted as security cameras and were placed at 

shoulder level. The final camera was in the ceiling and 

had a view of the cash register shooting down the front 

aisle of the electronics department. Although Cruickshank testified at trial that he had not reviewed the videotape from this final camera, he admitted that he would 

have been able to see the shoplifters had he watched it. 

Cruickshank testified that he gave Abbott the only videotape showing the incident and that he did not make a 

copy. However, at trial, Abbott could not remember receiving a videotape. Moreover, although [*4] Wal-Mart 

policy requires employees to document the distribution 

of such a vid.eotape to the police department in an evidence log, Cruickshank failed to log the distribution of 

this videotape to the Round Rock Police Department. 

At 6:00p.m. on the evening of the incident, Cruickshank prepared a voluntary statement for the police in 

which he affirms that he observed two Hispanic juvenile 

males remove merchandise from the shelves; he also 

affirms that he saw a Hispanic female aid the juvenile 

males. Two days after the juveniles were taken into custody, Abbott met with Detective Hamby, an officer with 

the Houston Police Department, John Smith, a Wal-Mart 

employee with their Investigative Task Force, and Steve 

Vina, another loss-prevention employee with Target. 

Detective Hamby, who had been investigating this 11Mickey Mouse11 gang, had a list of suspects, along with 

their drivees license numbers and/or Texas Identification 

Card Numbers. Using Hamby's list of suspects, Abbott 

called the Texas Department of Public Transportation 

and requested copies of the photographs on the driver's 

licenses and identification cards for these suspects. Abbott then retrieved the photographs from the Austin [*5] 

office of the DPS. 

Cruickshank received a call at home from the Round 

Rock Police Department asking that he come in for a 

photo line-up. Using the photos from DPS, Officer Robert Shumaker presented Cruickshank with a photo 

line-up. From the line-up, Cruickshank identified Maria 

Cristina Flores, Judy Martinez, Annette Perez, Carmen 

Solis, Felipe Rios Hernandez, and Irene Perez Aguilera 

(the plaintiff in the underlying lawsuit). Cruickshank 

then prepared a second, much more detailed statement in 

which he names all of the adults who aided the juveniles. 

On the day the juveniles were arrested, Judy Martinez, also identified as a suspect by Cruickshank, had 

gone to the Round Rock police station and attempted to 

claim the juveniles. Officer Abbott told her that she 

needed to come back with proof that the juveniles belonged to her. On the same day that Cruickshank made 

the photo identifications, Martinez was driving back 

from Houston with the necessary proof for one of the 

juveniles. The guardian of the other juvenile was Irene 

Aguilera1s mother. Because Aguilera1s mother was elderly and disabled, Aguilera accompanied her mother to 

Round Rock to pick up the juvenile. They both rode with 

[*6] Martinez. When the threesome arrived at the juvenile detention facility, Officer Abbott received a call 

informing him that they were there. Now armed with 

Cruickshank's identifications and written statements, 

Abbott acquired arrest warrants for Aguilera and Martinez. Aguilera and Martinez were arrested at the detention center. Aguilera was in jail for a month before her 

family could accumulate the money for her bail. According to Aguilera, she was physically assaulted during 

this time in jail. After she made bail, she was under 

house arrest. As a result of her arrest and detention, 

Aguilera developed post-traumatic stress disorder. The 

District Attorney's office later dismissed the charge of 

engaging in organized criminal activity against her. At 

trial, the mailman responsible for delivering the mail to 

Aguilera's home testified that Aguilera met him at the 

door of her Houston home on June 15, 1994 and could 

not have been in Round Rock committing shoplifting. 

Aguilera also testified that she was at home on the day in 

question. 1 

I Because Aguilera died before trial, her deposition testimony was read into the record. 

[*7] Aguilera filed suit against Wal-Mart and 

Cruickshank, alleging claims of malicious prosecution, 

intentional infliction of emotional distress, and negligent 

hiring. At trial, the jury found that Wal-Mart and 

Cruickshank maliciously prosecuted Aguilera and intentionally inflicted emotional distress upon her. The jury 

also found that Wal-Mart was negligent in its hiring of 

Cruickshank. Based upon the affirmative liability findings as to the malicious prosecution and intentional in-
Page 3 

2003 Tex. App. LEXIS 4846, * 

fliction of emotional distress claims, the jury awarded 

actual damages in the amount of $ 6.5 million. Based 

upon its finding of negligent hiring, the jury awarded an 

additional $ 6.5 million in actual damages. The jury also 

assessed$ 3,700 in exemplary damages against Cruickshank and $ I in exemplary damages against Wal-Mart. 

The final judgment awards plaintiffs approximately $ 20 

million. Wal-Mart and Cruickshank appeal. 

STANDARD OF REVIEW 

In their first three issues, Wal-Mart and Cruickshank 

contend that there is legally and factually insufficient 

evidence to support the jury's findings on malicious 

prosecution, intentional infliction of emotional distress, 

and negligent hiring. In reviewing a "no [*8] evidence" 

issue, we must view the evidence in a light that tends to 

support the finding of the disputed fact and disregard all 

evidence and inferences to the contrary. Bradford v. 

Vento, 48 S. W.3d 749, 754, 44 Tex. Sup. Ct. J. 655 (Tex. 

2001). If there is more than a scintilla of evidence to 

support the finding, the finding will be upheld. Formosa 

Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48, 41 Tex. Sup. Ct. J. 289 

(Tex. 1998). In reviewing a factual sufficiency point, we 

are required to weigh all of the evidence in the record. 

Tex. Dep't of Mental Health & Mental Retardation v. 

Rodriguez, 63 S. W.3d 475, 480 (Tex. App.--San Antonio 

2001, pet. denied). Findings may be overturned only if 

they are so against the great weight and preponderance of 

the evidence as to be clearly wrong and unjust. Id. 

MALICIOUS PROSECUTION 

There are seven elements of a malicious prosecution 

claim in Texas: (1) the commencement of a criminal 

prosecution against the plaintiff; (2) initiation or procurement of the prosecution by the defendant; (3) termination of the prosecution in the plaintiffs favor; (4) the 

plaintiffs innocence; (5) the lack of probable [*9] cause 

for the proceedings; (6) malice in filing the charge; and 

(7) damage suffered by the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517, 40 Tex. Sup. Ct. 

J. 839 (Tex. 1997). According to Wal-Mart and Cruickshank, there is legally and factually insufficient evidence 

(!) that Cruickshank initiated or procured Aguilera's 

prosecution, (2) that the criminal case terminated in 

Aguilera's favor, (3) that Cruickshank lacked probable 

cause, and (4) that Cruickshank acted with malice. We 

hold that there is legally insufficient evidence that 

Cruickshank lacked probable cause. 

In the context of malicious prosecution, probable 

cause is defined as the existence of those facts and circumstances that would excite a belief in a reasonable 

person, acting on the facts within his knowledge, that the 

person charged was guilty of a crime. Akin v. Dahl, 661 

S.W.2d 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). The 

probable cause inquiry asks whether a reasonable person 

would believe a crime had been committed, given the 

facts as the defendant honestly and reasonably believed 

them to be before the criminal proceedings were instituted. Id. The question is not what the actual facts were, 

but what the [* 1 0] defendant honestly and reasonably 

believed the facts to be. Closs v. Goose Creek Canso/. 

ISD, 874 S.W.2d 859, 877 (Tex. App.--Texarkana 1994, 

no writ). When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact is charged 

with resolving conflicts in the evidence to determine if 

probable cause exists. Richey, 952 S. W.2d at 518. If the 

facts are uncontested, then the question of whether defendant acted based upon probable cause becomes a 

question of Jaw to be decided by the court. Id. 

Appellees argue that Cruickshank acted without 

probable cause because he unreasonably failed to review 

the Wal-Mart videotape that he admits would have 

shown the perpetrators of the crime. While it is true that 

Cruickshank could have reviewed the videotape to confirm the identity of the suspects, the proper inquiry is not 

whether Cruickshank was negligent in failing to view the 

videotape; the proper inquiry is whether a reasonable 

person would have believed that Aguilera had committed 

the offense of shoplifting. It is undisputed that Cruickshank witnessed individuals shoplifting and that after 

looking at the picture of Aguilera [*II] in the photo 

line-up, he thought that Aguilera was the woman he saw 

aiding the juveniles. These undisputed facts amount to 

probable cause. 

Appellees also argue that there is evidence of probable cause because the jury could infer that Cruickshank 

withheld the videotape from the police. It is immaterial, 

however, to the probable cause inquiry that the defendant 

did not fully and fairly disclose all material information. 

In Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 

519, 40 Tex. Sup. Ct. J. 839 (Tex. 1997), the Texas Supreme Comt held that failing to fully and fairly disclose 

all material infmmation and knowingly providing false 

information to the prosecutor are relevant to the malice 

and causation elements of a malicious prosecution claim 

but have no bearing on probable cause .... The probable 

cause inquiry asks only whether the complainant reasonably believed that the elements of a crime had been 

committed based on the information available to the 

complainant before criminal proceedings began. When a 

complainant reasonably believes a crime has occmred; 

the reasonableness of that belief is not negated by the 

failure to fully disclose all relevant facts to the officer. 

Thus, the extent [*12] of the disclosure to the prosecutor is not probative of lack of probable cause, but rather 

indicates whether the complainant may have acted with 
Page 4 

2003 Tex. App. LEXIS 4846, * 

malice or may have, by knowingly providing false· information, caused the prosecution. 

There is, therefore, legally insufficient evidence to· 

support the jury's finding of lack of probable cause. We 

sustain this issue. 

INTENTIONAL INFLICTION OF EMOTIONAL 

DISTRESS 

Additionally, Wal-Mart and Cruickshank argue that 

there is no evidence to support the jury's finding on intentional infliction of emotional distress. The elements of 

a cause of action for intentional infliction of emotional 

distress are (1) that the defendant acted intentionally or 

recklessly, (2) that the defendant's conduct was extreme 

and outrageous, (3) that the defendant's conduct was directed at the plaintiff or at a third person in the plaintiffs 

presence, (4) that the defendant's conduct proximately 

caused the plaintiff emotional distress, and (5) that the 

emotional distress suffered by the plaintiff was severe. 

Morgan v. Anthony, 27 S. W.3d 928, 929, 43 Tex. Sup. Ct. 

J. 1172 (Tex. 2000) (per curiam). 

According to Wal-Mart and Cruickshank, there is no 

evidence that [*13] Cruickshank's conduct was extreme 

and outrageous. Whether a defendant's conduct is 11 extreme and outrageous" is a question oflaw. Bradford, 48 

S. W.3d at 758. The mere fact that a defendant's conduct 

is tortious or otherwise wrongful does not, standing 

alone, necessarily render it nextreme and outrageous, 11 Id. 

Instead, to be "extreme and outrageous," conduct must be 11 SO outrageous in character, and so extreme in degree, as 

to go beyond all possible bounds of decency, and to be 

regarded as atrocious, and utterly intolerable in a civilized community." Jd. (citation omitted). 

Appellees respond that Cruickshank's conduct was 

extreme and outrageous because it is outrageous 11 for a 

person with the training, and vested with the authority, 

responsibility, and power of Cruickshank to withhold 

exculpatory information from the police and utterly fail 

to review that information himself when levying an allegation that was certain to result in the arrest of another 

human being, and likely to result in lengthy incarceration.n 

In Bradford v. Vento, 48 S. W.3d 749, 44 Tex. Sup. 

Ct. J. 655 (Tex. 2001), Taylor and Vento, partners of a 

sports memorabilia store had a dispute over whether 

[*14] Taylor had sold the store to Vento. On separate 

occasions, each partner told Bradford, the manager of the 

mall in which the store was located, that he was the current owner of the store. One day, Taylor and Vento were 

in a heated argument in the store when one of them 

called the police. According to Vento, when asked by the 

police who owned the store, Bradford told the police that 

Taylor owned the store and threatened to file criminal 

trespassing charges against Vento if he returned. Id. at 

758. Bradford did not inform the police that there was a 

dispute over the ownership of the store. See id. The supreme court held that Bradford's conduct was not extreme and outrageous, noting that Bradford was trying to 

quell the disturbance in the mall, which he was within his 

legal rights to do. I d. The court emphasized, 

Although Bradford could certainly have given the 

police more information than he did, his failure to do so 

was not extreme and outrageous. By responding to the 

police officer1s question, Bradford was merely exercising 

his rights as mall manager in a permissible way; without 

more his behavior does not amount to extreme and outrageous conduct. [*15] 1d. at 759. 

Here, like Bradford, Cruickshank was merely exercising his legal right, in this case, his right to report that a 

crime had occurred. And, like Bradford, while Cruickshank could have reviewed the videotape to be cet1ain of 

his identification and could have given the police the 

videotape, his failure to do so does not amount to extreme and outrageous behavior. We decline to hold that 

simply failing to review a videotape and failing to give 

the videotape to the police is conduct so extreme and 

outrageous as to go beyond all possible bounds of decency. As such, we hold that there is legally insufficient 

evidence to support the jury's finding that Cruickshank's 

conduct was extreme and outrageous. We sustain this 

issue. 

NEGLIGENT HIRING 

Wal-Mart and Cruickshank also argue that there is 

no evidence to support the jury's negligent hiring finding. 

Claims against an employer for negligent hiring, supervising, training, or retaining an employee are based on 

the theory of direct liability--not vicarious liability. LaBella v. Charlie Thomas, Inc., 942 S. W.2d 127, 137 n.9 

(Tex. App.--Amarillo 1997, writ denied). The elements of 

a cause of action [*16] for negligently hiring, supervising, training, or retaining an employee are the following: 

(!) the employer owed the plaintiff a legal duty to hire, 

supervise, train, or retain competent employees; (2) the 

employer breached that duty; and (3) the breach proximately caused the plaintiffs injury. !d. at 13 7. However, 

the employer cannot be held liable if the employee does 

not commit an actionable tort recognized under common 

law. Gonzales v. Willis, 995 S. W.2d 729, 739-40 (Tex. 

App.--San Antonio 1999, no pet.). As such, negligent 

hiring is a dependent tort. Id. Here, there is no evidence 

of an actionable tort committed by Cruickshank. We, 

therefore, sustain this issue. 

OTHER ISSUES 
Page 5 

2003 Tex. App. LEXIS 4846, * 

Wal-Mart and Cruickshank also complain that the 

trial court erroneously denied their motion to transfer 

venue and that the judgment improperly awards double 

recovery. 2 Because we have sustained Wal-Mart and 

Cruickshank's first three issues, we need not reach these 

other issues. 

2 Appellees concede in their brief that the 

judgment does improperly award them double 

recovery. 

[*17] CONCLUSION 

As there is legally insufficient evidence to support 

the jury's findings on malicious prosecution, intentional 

infliction of emotional distress, and negligent hiring, we 

reverse the judgment of the trial court and render judgment in favor ofWal-Mart and Cruickshank. 

Karen Angelini, Justice 

DISSENT BY: Alma L. Lopez 

DISSENT 

DISSENTING OPINION 

In finding that the evidence is legally insufficient to 

support the probable cause element of the appellees' malicious prosecution claim, I believe the majority misapplies the applicable standard of review. For this reason, I 

respectfully dissent. 

In conducting a legal sufficiency review, we review 

the evidence in a light that tends to support the finding of 

the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constl·., Inc. v. Harrison, 70 S. W.3d 778, 782, 45 Tex. Sup. Ct. J. 232 (Tex. 

2001). If more .than a scintilla of evidence exists, the 

evidence is legally sufficient. !d. More than a scintilla of 

evidence exists if the evidence furnishes some reasonable 

basis for differing conclusions by reasonable minds 

about a vital fact's existence, !d. at 782-83. Because a 

court of appeals [*I 8] is not a fact finder, we may not 

pass upon a witness's credibility or substitute our judgment for that of the jury, even if the evidence would 

clearly support a different result. Maritime Overseas 

Corp. v. Ellis, 971 S. W.2d 402, 406-07, 41 Tex. Sup. Ct. 

J. 683 (Tex. 1998). 

During oral argument, counsel for the appellants repeatedly stated that the issue of probable cause was a 

question of law. "Whether probable cause is a question 

of law or a mixed question of law and fact depends on 

whether the parties dispute the underlying facts." Richey 

v. Brookshire GroceiJ> Co., 952 S.W.2d 515, 518, 40 Tex. 

Sup. Ct. J. 839 (Tex. 1997). "When the facts underlying 

the defendant's decision to prosecute are disputed, the 

trier of fact must weigh the evidence and resolve conflicts to determine 1 if probable cause exists, as a mixed 

question of law and fact." !d. The facts in this case could 

not be more clearly in dispute. Cruickshank identified 

Aguilera as being involved in a theft offense. Aguilera 

testified that she was not present at the scene and had an 

alibi to support her testimony. 

"Once [the] opposing parties have entered into a 

factual contest on the issue of probable cause, a factual 

issue is [*19] created for resolution by the trier of fact." 

Akin v. Dahl, 661 S.W.2d 917, 920,27 Tex. Sup. Ct. J. 23 

(Tex. 1983). "This is the cornerstone of our judicial system." I d. 111When the facts are in controversy the question 

of probable cause must necessarily go to the jury, and 

then the court must give such instruction as will enable 

them to draw the correct conclusion from the facts as 

they may find them and the law thus given."' !d. (quoting 

Landa v. Obert, 45 Tex. 539, 543 (Tex. 1876)) (citations 

omitted). 

In the context of a malicious prosecution cause of 

action, probable cause is defined as the existence of facts 

and circumstances that would excite a belief in a reasonable person, acting on the facts within his knowledge, 

that the person charged is guilty of a crime. Richey, 952 

S.W.2d at 517. "The probable cause inquiry asks only 

whether the complainant reasonably believed that the 

elements of a crime had been committed based on the 

information available to the complainant before criminal 

proceedings begin." !d. at 519. 

The key to the jury affirmatively finding no probable 

cause in this case is based on the facts it determined 

[*20] to be within Cruickshank's knowledge. Cruickshank testified that a videotape existed that showed every 

person involved in the offense. ' Cruickshank testified 

that he gave that videotape to Officer Abbott, but Officer 

Abbott did not recall receiving the videotape. No evidence was introduced to prove that Cruickshank completed a log showing that he had given Officer Abbott 

the videotape in accordance with company policy. Furthermore, neither the evidence receipt Cruickshank allegedly received from Officer Abbott nor the videotape 

was produced at trial. From this evidence, the jury could 

make a credibility determination that Cruickshank did 

not give Officer Abbott the videotape. 

I Q: So, there's no question but had you looked 

at the videotape you could have compared it be.-

cause you know you're positively sure of your 

photo identifications, they would have jibed. 

A: Yes, sir. 

Cruickshank testified that he did not watch the videotape, 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 

and the dollar value of the prevented theft. ' From this 

evidence, the jury could make a credibility determination 

that Cruickshank had watched the videotape and infer 

that the videotape would not have supported Cruickshank's identification of Aguilera. This inference is bolstered by the evidence that Cruickshank identified at 

least one other individual as being involved in the offense who was not prosecuted based on alibi testimony. 

Based on the evidence as a whole, the jury could have 

disbeheved that the true facts within the knowledge of 

Cruickshank would excite a belief in a reasonable person 

that Aguilera was guilty of a Ciime. See Akin, 661 S. I¥. 3d 

at 921 (holding evidence supported jury finding of no 

pr?bable cause where conflicting evidence was presented 

with regard to whether a reasonable basis in the known 

facts supported a belief that plaintiff was mentally incompetent even though physician records supported 

fmdmg of mental incompetency); San Antonio Credit 

Union v. O'Connor, 2002 Tex. App. LEXIS 8406, No. 

04-00-00714-CV, 2002 WL 31662054, at *7-8 (Tex. 

App.--San Antonio Nov. 27, 2002, no pet. h.) (holding 

JUry could have found that complainant's belief [*22] 

that plaintiff misappropriated loan funds was unreasonable based on conflicting evidence); First Valley Bank of 

Los Fresnos v. Martin, 55 S. I¥. 3d 172, 184 (Tex. 

App.--Corpus Christi 2001, pet. filed) (holding evidence 

supported no probable cause finding where evidence was 

presented that defendant could not have reasonably believed that plaintiff committed crime); King v. Graham, 

47 S. I¥. 3d 595, 607-08 (Tex. App.--San Antonio 2001, no 

pet.) (holding more than a scintilla of evidence existed to 

support finding of no probable cause where evidence was 

offered to show that defendant's version of the facts was 

inaccurate). "While the jury was not required to believe 

[Aguilera's] story and could have rejected it, it was certainly within the jury's province to accept it." Richey, 952 

S.W'.2d at 521 (Comyn, J., dissenting). 

2 Interestingly, Cruickshank received a commendation letter and a raise for his actions relating to the theft offense. 

The reason the jury could [*23] have chosen to 

simply disbelieve that Cruickshank honestly and reasonably believed that Aguilera was present during the offense could not be more heavily documented in the record. Cruickshank lied at his deposition about graduating 

from high school. Cruickshank lied at his deposition 

~bout receiving certain awards and medals while serving 

m the Navy. Cruickshank lied about needing authorization from the President of the United States before disclosing the reason for receiving one of those awards. 

Cruickshank admitted that he lied on his Wal-Mart application. Cruickshank's initial statement to the police 

Identified only one other female assisting two juveniles 

with the theft by placing clothes on top of merchandise 

in a shopping cart. Cruickshank did not identify 

Aguilera's alleged role in acting as a lookout until his 

second statement was taken two days later. The jury 

could have questioned whether Cruickshank honestly 

believed that the additional individuals identified in his 

second statement were present given Cruickshank's failure to initially mention them and given that Cruickshank's performance was evaluated in part based on the 

nmnber of apprehensions he made. Finally, the jury 

[*24] could have believed that Cruickshank lied about 

giving Officer Abbott the videotape and about not viewing the videotape. In sum, the jury had every reason to 

find that Cruickshank's testimony about the facts within 

his knowledge was false and that the facts that were 

within Cruickshank's knowledge would not excite a belief in a reasonable person that Aguilera was guilty of a 

crime. 

Because I believe the majority passes upon the witnesses' credibility and substitutes its judgment for that of 

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 

District Court, Bexar County, Texas. Trial Court No. 

96-CI-04401. Honorable Carlos C. Cadena, Judge Presiding. 

This Qpinion Substituted on Grant of Rehearing for 

Withdrawn Opinion of February 10, 1999, Previously 

Reported at: 1999 Tex. App. LEX!S 838. 

DISPOSITION: REVERSED AND RENDERED IN 

PART; AFFIRMED IN PART 

COUNSEL: FOR APPELLANT: Tina Torres, Rob 

Hughes, Jr. LAW OFFICES OF PETER TORRES, JR., 

P.C., San Antonio, TX. Jeffrey R. Davis, OSHEROW & 

DAVIS, P.C., SAN ANTONIO, TX. Thomas H. Crofts, 

Jr., Ellen B. Mitchell, CROFTS, CALLAWAY & JEFFERSON, P.C., SAN ANTONIO, TX. 

FOR APPELLEE: Humberto G. Garcia, John D. Mereness, JOHNSON, CURNEY, GARCIA, WISE & 

FARMER, P.C., San Antonio, TX. 

JUDGES: Opinion by: Tom Rickhoff, Justice. Concurring opinion by: Karen Angelini, Justice, joined by Sarah 

B. Duncan, Justice. Sitting: Tom Rickhoff, Justice, Sarah 

B. Duncan, Justice, (concurring in the judgment only). 

Karen Angelini, Justice (concurring in the judgment only). 

OPINION BY: TOM RiCKHOFF 

OPINION 

[*732] OPINION ON APPELLEE'S MOTION FOR 

REHEARING 

Appellee Tom Benson Chevrolet Company's motion 

for rehearing is granted. The prior opinions and judgment 

in this appeal, issued February 10, 1999, are withdrawn 

and the following opinion and judgment are substituted 

therefor. 

INTRODUCTION 

Olga Willis sued James Gonzales and his employer, 

Tom Benson Chevrolet Company, Inc. (Benson), claiming that Gonzales made sexual advances toward her 

while ostensibly assisting her in obtaining a job at Benson. She asserted claims for intentional infliction of 

emotional [**2] distress, sexual harassment, sexual 

discrimination, and negligent hiring, retention, training, 

and supervision. At trial, she prevailed only on the intentional infliction of emotional dist-ress claim. The court 

entered a judgment against Gonzales on this claim for $ 

55,000. Gonzales appeals this pm1ion of the judgment. 

Willis appeals the trial court's decision to direct a verdict 

on her negligence claims. Although Gonzales's behavior 

could be considered extreme and outrageous, Willis did 

not establish that she suffered severe emotional distress. 

We therefore reverse the portion of the judgment awarding Willis $ 55,000, and render judgment that she take 

nothing on the intentional infliction of emotional distress 

claim. Because Gonzales did not commit an actionable 

tort against Willis, her claims for negligent hiring, retention, 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. 
Page 2 

995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, ** 

FACTS 

Hoping to obtain a job selling cars, Willis contacted 

an acquaintance who was a sales manager at Benson. He 

told her she should talk to James Gonzales, another 

Benson employee, about [**3] getting a job there. At 

the time of the events giving rise to this suit, Gonzales 

had been twice fired and twice rehired by Benson. One 

time he was fired for bringing a pornographic movie to 

work to show at a meeting of salesmen. He was also reprimanded for pinching a female co-worker's buttocks. 

The second time he was fired, a notation was made on 

his record that he was not rehireable. He was rehired 

anyway. 

During their first meeting, Gonzales informed Willis 

that she could not be hired at that time because she had 

no experience selling cars. He suggested that she seek a 

job at a used car lot called E-Z Motors. After Willis secured a job at E-Z Motors, she kept in touch with Gonzales: she submitted [*733] an application and resume, informed him when she made her first sale, and 

sought advice regarding problems she encountered at 

E-Z Motors. During these conversations, Gonzales suggested that she might be able to obtain a job at Benson if 

Benson has an opening. One day, Gonzales invited Willis to dinner to discuss a potential job. Willis accepted 

the invitation, and Gonzales, driving a Benson automobile, picked her up that night at E-Z Motors. Willis testified that on the way to dinner, [**4] he commented 

that she had "baby legs" and asked if he could touch 

them. Willis said "no" and tried to change the topic of 

conversation. During the remainder of the drive, 'they 

discussed selling cars. They arrived at the restaurant, a 

barbecue place, and resumed their discussion about selling cars. Willis testified that the following exchange occun·ed after their dinner was served: 

So he starts getting his hands dirty [with barbecue 

sauce], and he say, "You know, I'm thinking about 

something." I said, "What are you thinking about?" He 

goes, 1Tm thinking about, you know, my fingers are all 

with barbecue sauce. If you will let me stick barbecue 

sauce in finger--my finger in your pussy to see, you 

know, how it's like. And I'm sure when I'm telling you 

this, you're getting wet," and said, "I can see your tits 

getting hard," you know. 

And then after that, you know, "Go bring by [sic] 

cock in your pussy and kiss you all over and, oh, it 

would be a lot of fun" and all kind of stuff. And I say, 

"Would you please stop? You know, I don't think this is 

nice to tell me that. 11 

And, you know, constantly I'm trying to change 

conversation ... , and so I feel uncomfortable. So I ask 

him, [**5] 11Can you--" you know, "Can we go back?" 

And he goes, "Sure." 

When asked whether she got up from the table at 

that point, she responded: 

I did not. I was embarrassed. I'm trying to keep, you 

know, nice with him, but I also show him that I was very, 

very uncomfortable [with] what he's telling me. 

Although Gonzales initially agreed to take Willis 

back to E-Z Motors, he nevertheless continued his sexual 

advances: 

He say, "Come on. You1

re not going to work anymore. Let's go stay and dance. I would like to 

close--dance with you real close. That way, I can feel 

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, 

"No, I can't stay. I have to go work. I have long hours the 

next day; and besides that, they're going to close the 

dealer, and I will not be able to get my car out of the 

dealer--out of the parking lot." 

Finally, after this protestation, Gonzales drove Willis back to E-Z Motors. She testified that on the way 

back to E-Z Motors: 

I didn't say much. I was so embarrassed. I can't remember exactly what we talked about, so--l remember 

when we get to the lot, he--! tell him--! tell him, "Please, 

you know, don't [**6] keep these conversations with 

me anymore." He goes, "Okay, that's fine." And that was 

it. 

Willis described her feelings at the end of the evening as follows: 

I [felt] a little bit uncomfortable, but I'm trying ... to 

do my best, you know, not to think negative about him 

because I was looking at him as a person that was going 

to help me to get a job. 

Sometime after their dinner together, Gonzales 

called Willis, told her he had won a trip to 

Acapulco, and invited her along. When Willis declined the invitation, Gonzales told her, 11 0ne of my 

dreams if I take you to Acapulco is you--seeing 

you--seeing you in the shower, you know, taking a bath. 

I promise you I will not touch you. I will not do anything, just--but watch you there in the bathroom taking a 

bath." Willis informed Gonzales that she doesn't "take 

those trips." Undeterred, Gonzales called [*734] her 

back to ask again if she would go with him and again 

Willis told him no. 

The next time Willis saw Gonzales he stopped by 

the dealership where she worked and invited her to lunch 

with this lure: "We're going to talk about a job. I think I 

have something for you." Willis told him she would go if 

he promised that he would not [**7] "say nasty things" 

to her. Gonzales responded, "I promise you. rt•s going to 
Page 3 

995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, ** 

be strictly about a job." Once he had Willis away from 

the dealership, however, he disregarded his promise: 

We ordered the food and everything, and he told me, 

"You know, I'll help you if you help me." He started 

talking nasty again about me, about his dreams about 

sitting on the chair dreaming about me, about getting 

hard, about getting wet, about--dreaming about, you 

know, the way I take my bath, about sticking his finger 

in my pussy, and swallow the finger, and touching my 

tits, because he always tell me that I have beautiful tits. 

And I say, "Do you know what? You promised me 

something, and you did it again. And, you know, I don't 

want to hear about it." .... He say, "I'll help you if you 

help me." And I say, "I don't need your help then," and I 

asked him to take me back. 

Willis testified that her understanding of the comment, "I'll help you if you help me," was that she had to 

"pleasure himu in order to get a job. When he returned 

her to the dealership, she informed him, "not to bother 

me, not to call me anymore, that I don't want to hear 

about him anymore." In spite of this plea, Gonzales 

called [**8] her again to talk about her job. Willis reminded him that she had asked him not to call her anymore and then hung up on him. 

Thus thwarted from having direct contact with Willis, Gonzales nevertheless managed to inject himself into 

her life. One day, he went to lunch with some of her 

co-workers. When the co-workers returned from lunch, 

they told Willis that Gonzales asked them to send her "a 

message" that he was still waiting for her to go to Acapulco with him and he was still dreaming about her. 

Gonzales testified that his encounters with Willis 

were purely professional, and that he never made a sexual advance toward her. 

When asked how Gonzales's conduct had affected 

her, Willis testified: 

Every single time I remember things like this coming back over and over, it hurts me. He made me feel, 

you know--

And I even think about, "What did I do wrong for 

him to talk to me this way?" Because everybody, every 

single person I work for, they always respect me, any 

job, any position. I work between a lot of mens [sic], and 

I'm the only girl; and nobody talk anything nasty ... in 

front of me. 

And when I met Mr. Gonzales--he is an older person--my education was that older people [**9] needs to 

be respected; and I always like to be close to older people, because the older people is the people w\lo teach you 

best. And when he started talking to me, it hurts me because I didn't know what I did wrong; and I was afraid to 

talk to older people anymore. I'm afraid to get close to 

them. I'm afraid to believe in people again. I can't. 

Willis further testified that when her co-workers 

conveyed Gonzales1s 11message": 

They made me feel dirty. I even got home, took a 

shower, crying. I mean, I cannot sleep. Every single time 

I go to sleep, I can listen to voices. I can listen to his 

voice talking nasty with me. 

After the event involving her co-workers, Willis resolved to take action against Gonzales: 

That was the last thing I can took [sic], because I 

feel like he was making everybody lose respect for me. I 

work so hard for people at that particular dealer to believe in me and respect me, for him to come to them and 

say nasty things. 

[*735] And then later on, I was afraid that somebody else was going to come to that office and say 

something nasty to me. And that really needs to stop. 

Accordingly, Willis filed an administrative complaint against Gonzales and Benson. After [**10] receiving a "right to sue" letter from the Texas Commission on Human Rights, she brought this suit. 

GONZALES'S APPEAL 

In Twyman v. Twyman, 855 S.W.2d 619, 621-22 

(Tex. 1993), our supreme court adopted the tort of intentional infliction of emotional distress as set out in section 

46(1) of the Second Restatement of Torts. To recover for 

this tort, the plaintiff must prove: I) the defendant acted 

intentionally or recklessly; 2) the conduct was extreme 

and outrageous; 3) the defendant's actions caused the 

plaintiff emotional distress; and 4) the resulting emotional distress was severe. See Twyman, 855 S. W.2d at 621. 

Gonzales argues that the evidence is legally and factually 

insufficient to establish the first, second, and fourth elements. 

In reviewing legal sufficiency or 11no evidencen arguments, we must consider the evidence and draw all 

inferences in the light most favorable to the verdict. See 

Southwestern Bell Mobile Sys., Inc. v. Franco, 971 

S. W.2d 52, 54 (Tex. 1998). In reviewing factual sufficiency or "insufficient evidence 11 arguments, we must 

consider and weigh all the evidence, and should set aside 

the verdict only if it is so contrary to the overwhelming 

[**11] weight of the evidence as to be clearly wrong 

and unjust. See Cain v. Bain, 709 S. W.2d 175, 176 (Tex. 

1986). 

1. Extreme and Outrageous Conduct 

To be actionable, conduct must be 11 SO outrageous in 

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 atrocious, and utterly intolerable in a civilized community. 11 

RESTATEMENT (SECOND) OF TORTS§ 46 cmt. d 

(1965). It has been noted that courts have little guidance 

in deciding when conduct crosses the line from the category of merely rude and offensive behavior to the category of extreme and outrageous conduct, and that the test 

is essentially a subjective one. See Twyman, 855 S. W.2d 

at 629 (Hecht, J., concurring and dissenting); GTE 

Southwest, Inc. v. Bruce, 956 S. W.2d 636, 646 (Tex. 

App.--Texarkana 1997, pet. granted). Generally, however, 11 the case is one in which the recitation of the facts to 

an average member of the community would arouse his 

resentment against the actor, and lead him to exclaim, 

'Outrageous!"' RESTATEMENT§ 46 emf. d. The extreme 

and outrageous character of the conduct may arise from 

an abuse of a position or a relation with the victim that 

[**12) gives the tortfeasor actual or apparent authority 

over~ the victim, or power to affect his or her interests. 

See id. cmt. e. 

It is for the court to determine, in the first instance, 

whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. See Wornick Co. v. Casas, 856 S. W.2d 732, 734 

(Tex. 1993); RESTATEMENT§ 46 cmt. h. But when 

reasonable minds could disagree, it is for the jury to determine whether, in a particular case, the conduct is sufficiently extreme and outrageous to result in liability. See 

RESTATEMENT§ 46 cml. h. After evaluating the evidence in this case, the trial judge determined that a jury 

question was presented on this issue and the jury decided 

that Gonzales's conduct was extreme and outrageous. 

Given these considerations, our task is to determine 

whether patiicular behavior in its surrounding context, 

could or could not, as a matter of law, amount to extreme 

and outrageous conduct. The behavior at issue in this 

case consists of vile sexual advances that were repeated 

in the face of persistent and unwaivering entreaties that 

the perpetrator refrain from making such comments. The 

behavior also [**13) includes encouraging the victim's 

co-workers to convey indecent propositions to the victim 

at her place of employment. The [*736] context in 

which the advances were made is also important. Clearly, Gonzales led Willis to believe that he could assist her 

in obtaining the job she desired at Benson. He thus acquired a position of power over her-- a position he used 

to subject her to his lecherousness. Considering this context and the demeanor of Willis and Gonzales, the jmy 

could infer that Gonzales chose his victim well--a victim 

reluctant to 11make a scene, 11 a victim who would quietly 

endure the indignities cast upon her for fear of angering a 

person in power or being humiliated by her co-workers. 

To hold that this behavior cannot, as a matter of law, 

amount to extreme and outrageous conduct would be 

tantamount to saying that no reasonable person, understanding the context, would exclaim, uoutrageous! 11 upon 

overhearing Gonzales 1s obviously unwelcome vulgarities. See RESTATEMENT§ 46 cmt. d. At a minimum, 

reasonable minds could disagree regarding whether 

Gonzales1s conduct was extreme and outrageous. Therefore, it was for the jury--the representatives of the community and the proper arbiters [**14] of what exceeds 11 the bounds of decency, 11 and what is uatrocious, and 

utterly intolerable in a civilized community"-- to decide 

this question. Id. 

We recognize that some courts have held that conduct 

similar to Gonzales1s conduct was not extreme and outrageous. See, e.g., Wilson v. Sysco Food Servs., 940 F. 

Supp. 1003 (N.D. Tex. 1996); Gearhart v. Eye Care 

Ctrs., 888 F. Supp. 814 (S.D. Tex. 1995); Garcia v. Andrews, 867 S.W.2d 409 (Tex. App.--Corpus Christi 1993, 

no writ). Other cases have held that similar conduct was 

extreme and outrageous. See, e.g., Soto v. El Paso Natural Gas Co., 942 S. W.2d 671 (Tex. App.--El Paso 1997, 

writ denied); Bruce, 956 S. W.2d at 647. None of these 

cases is binding on us; their holdings merely provide 

proof that the extreme and outrageous standard is somewhat amorphous. 

2. Intent or Recklessness 

To be liable for intentional infliction of emotional 

distress, the defendant must have either intended to cause 

the distress or acted with reckless disregard of the risk 

that he would cause such distress. See Twyman, 855 

S. W.2d at 623-24. Gonzales denied that he had any intent 

to cause Willis pain or make her uncomfortable [**15] 

or upset. Based on this testimony, he argues that the evidence is insufficient to establish intent or recklessness. 

Defendants will rarely admit knowing of a substantial certainty that their conduct would cause emotional 

distress. See 855 S. W.2d at 623. Noting this fact, the supreme court has emphasized that juries are free to discredit the defendant's protestations that no harm was intended and draw necessary inferences to establish intent. 

See id. In this case, not only did Gonzales deny any intent to hurt Willis, he denied that he even engaged in the 

conduct that is the subject of this action. The jury could 

infer intent or at least recklessness from the nature of 

Gonzales's statements and from Willis's requests that he 

refrain from making such statements. 

3, Severe Emotional Distress 

Emotional.distress includes all highly unpleasant mental 

reactions, such as humiliation, embanassment, anger, 

worry, and disappointment. See Villasenor v. Villasenor, 
Page 5 

995 S.W.2d 729, *; 1999 Tex. App. LEXIS 3014, ** 

911 S.W.2d 411, 416 (Tex. App.--San Antonio 1995, no 

wlit); see also RESTATEMENT§ 46 cmt. }. 

Complete emotional tranquility is seldom attainable 

in this world, and some degree of transient and trivial 

[**16] emotional distress is a part of the price of living 

among people. The law intervenes only where the distress inflicted is so severe that no reasonable [person] 

could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. 

RESTATEMENT§ 46 emf.}. Feelings of anger, depression, and humiliation are not sufficient to establish severe emotional distress. See Villasenor, 911 S. W.2d at 

417. Furthermore, conduct is not actionable as intentional infliction of emotional distress [*737] merely because it may damage the plaintiffs reputation. See Diamond Shamrock Ref & Mktg. Co. v. Mendez, 844 S. W.2d 

198, 202 (Tex. 1992). 

Willis testified that when Gonzales made the advances toward her she was merely 11 embarrassed" and 

"uncomfortable. 11 She also testified that remembering 

what Gonzales did "hurts 11 her and makes her wonder 

what she did wrong; that his conduct has affected her 

ability to trust people, particularly older people; that the 

comments relayed by her co-workers made her feel dirty 

and made her cry; that she "cannot sleep, 11 and when she 

goes to sleep she hears Gonzales "talking nasty11 to her. 

Drawing all [* *17] inferences in favor of Will is, the 

most that can be said of this testimony is that it is some 

evidence of a highly unpleasant emotional reaction. Willis failed to muster any evidence from which a jury could 

reasonably infer that her emotional distress has been severe. For example, there is no indication of the intensity 

or duration of the emotional distress. The evidence is 

therefore legally insufficient to establish severe emotional distress. Cf Gorges Foodservice, Inc. v. Huerta, 964 

S. W.2d 656, 668-69 (Tex. App.--Corpus Chlisti 1997, no 

pet.) (testimony that plaintiffs wife temporarily ejected 

him from the house, that his relationship with his wife 

and children had suffered, that he was unable to concentrate, that he felt insecure about his prospects for finding 

employment, and that he was embmnssed held legally 

insufficient). 

Because the evidence is legally insufficient to establish severe emotional distress, we reverse the portion of 

the judgment that awards Willis $ 55,000 in damages 

from Gonzales and render judgment that she take nothing 

on her intentional infliction of emotional distress claim. 

WILLIS'S APPEAL 

In addition to her intentional infliction [**18] of emotional distress and negligence claims, Willis also alleged 

a violation of the Texas Commission on Human Rights 

Act (TCHRA). Regarding this claim, the jury found that 

Benson failed to hire Willis because she is female and 

that Gonzales sexually harassed her. But the trial court 

granted a take-nothing judgment on this claim because 

Willis's administrative complaint was not timely filed. 

See TEX LAB. CODE ANN. § 21.202(a); Specialty 

Retailers, Inc. v. DeMoranville, 933 S. W.2d 490, 492 

(Tex. 1996). The trial court also granted Benson's motion 

for directed verdict on Willis's negligence claims on the 

ground that those claims were preempted by the 

TCHRA. Willis argues that this ruling was erroneous. 

B,enson argues that the finding of preemption was correct, or in the alternative, was harmless error. 

L Preemption 

The TCHRA prohibits employment disclimination 

on a number of grounds, including sex. See TEX LAB. 

CODE ANN. § 21.051 (Vernon 1996); Perez v. Living 

Centers-Devcon, Inc., 963 S. W.2d 870, 872 (Tex. 

App.--San Antonio 1998, pet. denied). It sets forth a 

comprehensive administrative review system that a discrimination victim must follow before filing [**19] a 

civil action alleging violations of the TCHRA. See 

Schroeder v. Texas Iron Works, Inc., 813 S. W.2d 483, 

485-88 (Tex. 1991). 

In Perez, we addressed the question of "whether the 

Texas legislature intended for the TCHRA to preempt 

common law causes of action." 963 S. W.2d at 873. After 

examining the act1s language, we stated: 

Notably, neither an intent to serve as an exclusive 

remedy, nor an intent to preclude common law causes of 

action, is contained within the stated purposes of the 

TCHRA. Additionally, the statute contains no provision 

that implies the TCHR's administrative review system 

precludes a lawsuit for common law causes of action. 

963 S.W.2d at 874 (citation omitted). We further noted 

that section 21.211 of the TCHRA implies that the legislature did not intend to preempt common law causes of 

action. See id. That section provides: 

[*738] A person who has initiated an action in a 

court of competent jurisdiction or who has an action 

pending before an administrative agency under other law 

or an order or ordinance of a political subdivision of this 

state based on an act that would be an unlawful employment practice under this chapter may not file a complaint 

under this [**20] subchapter for the same grievance. 

TEX LAB. CODE ANN. § 21.211. Focusing on this 

section, we stated: 

Rather than preclude other causes of action that 

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 

cannot have two bites at the apple, That is, a plaintiff 

cannot first sue a defendant-employer for a non-TCHRA 

cause of action for conduct arising from the same facts as 

employment discrimination and then pursue a claim of 

employment discrimination through the administrative 

review system established under the TCHRA .... This 

provision requires a plaintiff to pick a remedy and permits a plaintiff like Perez to pursue common law causes 

of action that arise from the same facts as sexual harassment. 

Perez, 963 S. W.2d at 874. After examining the language 

of the TCHRA, including section 21.211, and its legislative history, we concluded that the TCHRA is not the 

exclusive state law remedy for conduct that violates its 

provisions, See 963 S. W.2d at 872-75. 

Based on Perez, Willis argues that the trial court 

erred by directing a verdict on her negligence causes of 

action. Benson responds that this case is distinguishable 

[**21] from Perez because unlike Perez, Willis attempted to pursue both a claim under the TCHRA and 

common law claims. As support for its argument, Benson focuses on our analysis of section 21.211, particularly the statements that a plaintiff must "pick a remedy" 

and is not allowed "two bites at the apple." 

The fact that Willis pursued an administrative remedy does not change the preemption analysis. Nothing in 

Perez suggests that our no-preemption holding was limited to the facts of that case. The language of section 

21.211 was merely one of the reasons we cited for concluding that Perez's common law claims were not 

preempted. Moreover, the election of remedies provision 

in section 21.2ll does not apply to this case because 

Willis did not initiate suit on her common law claims 

before pursuing her claim under the TCHRA. ' By exhausting her administrative remedies, Willis acted consistently with the legislative intent underlying the 

TCHRA. See Schroeder, 813 S. W.2d at 486 (holding that 

the TCHRA1s administrative process 11 clearly encourages 

compliance through voluntary resolution, conference, 

conciliation and persuasion--informal processes other 

than litigation;'). 

Because Willis did not recover on her claim 

under the TCHRA, the common law election of 

remedies rule and one-satisfaction rule are also 

inapplicable. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d I, 7 (Tex. 1991) 

(one-satisfaction rule prevents plaintiff from obtaining more than one recovery for the same injury); Green Oaks, Ltd. v. Cannan, 749 S. W.2d 

128, 131 (Tex. App.--San Antonio 1987) (sole 

purpose of election of remedies doctrine is to 

prevent double recovery for single wrong), writ 

denied per curiam, 758 S.W.2d 753 (Tex. 1988). 

[**22] Finally, Benson points out that three federal district court opinions, two of which are unpublished, 

have held that the TCHRA preempts common law causes 

of action. See Cook v. Fidelity Investments, 908 F. Supp. 

438, 442 (N.D. Tex. 1995); Hardy v. Fleming Food Co., 

1996 U.S. Dist. LEXIS 3923, No. H-94-3759, 1996 WL 

145463, at *27 (S.D. Tex. March 21, 1996); Bates v. 

Humana, Inc., 1993 U.S. Dist. LEXIS 20764, No. 

SA-92-CA-432, 1993 WL 556416, at *11 (W.D. Tex. 

Oct. 12, 1993). Benson suggests that we should follow 

these decisions because our supreme court has held that 

federal decisions interpreting federal discrimination statutes may be instructive in construing the TCHRA. See 

Specialty Retailers, 933 S. W.2d at 492. The cases cited 

by Benson, however, do not interpret federal discrimination statutes; rather, [*739] they address the purely 

state-law question of whether the TCHRA preempts 

common law claims. Because their answer to this question is inconsistent with our own precedent, we decline 

to follow them. 

The trial court erred by directing a verdict on Willis's negligence causes of action on the basis of preemption, 

2. Absence of Underlying Tort 

In its motion for rehearing, Benson asserts that even 

if the trial [**23] comt's preemption ruling was erroneous, the granting of the directed verdict was harmless 

in light of our disposition of Gonzales's appeal. Benson 

argues that since Gonzales did not commit an actionable 

tort against Willis, it cannot be held liable for negligently 

hiring, retaining, training, or supervising Gonzales. 2 We 

agree. 

2 For purposes of this discussion, there is no 

relevant distinction among negligent hiring, retention, training, or supervision, We will refer to 

all these torts collectively as "negligent hiring." 

Although we have not found a Texas case directly 

on point, courts in other jurisdictions have held that an 

employer cannot be held liable for negligently hiring au 

employee unless the employee committed an actionable 

tmt. See Hays v. Patton-Tully Transp. Co., 844 F. Supp. 

1221, 1223 (W.D. Tenn. 1993); Mulhern v. City of 

Scottsdale, 165 Ariz. 395, 799 P.2d 15, 18 (Ariz. Ct. App. 

1990); Hogan v. Forsyth Count1y Club Co., 79 N.C. App. 

483, 340 S.E.2d 116, 123-25 (N.C. Ct. App. [**24] 

1986); Louis Marsch, Inc. v. Pekin Ins. Co., 140 Ill. App. 

3d 1079, 491 N.E.2d 432, 437, 96 Ill. Dec. 386 (Ill. App. 

Ct. 1985). 
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 

how egregious, unless the negligence causes a legally 

compensable injury. See W. PAGE KEETON ET AL., 

PROSSER AND KEETON ON THE LAW OF TORTS 

§ 30, at 165 (5th ed. 1984). In the context of negligent 

hiring claims, if the employee did not commit an actionable tort, the plaintiff has not been injured in the eyes of 

the law; therefore, the employer1s negligence has not 

caused a legally compensable injury. 

This rule is also consistent with well-settled Texas 

precedent regarding negligent entrustment claims, which 

are akin to negligent hiring claims. See Deerings West 

Nursing Ctr. v. Scott, 787 S. W.2d 494, 495-96 (Tex. 

App.--El Paso 1990, writ denied). To prevail on a claim 

for negligent entrustment of a vehicle, the plaintiff must 

establish not only that the owner was negligent in entrusting the vehicle, but also that the driver's negligent 

operation of the vehicle proximately caused damage to 

the plaintiff. See Schneider v. Esperanza Transmission 

[**25] Co., 744 S. W.2d 595, 596 (Tex. 1987); Fidelity 

& Guar. Ins. Underwriters v. McManus, 633 S. W.2d 787, 

790 (Tex. 1982); see also Rodgers v. McFarland, 402 

S.W.2d 208, 210 (Tex. Civ. App.--El Paso 1966, writ 

rerd n.r.e.) ("Obviously, an owner who is negligent in 

entrusting his vehicle is not liable for such negligence 

until some wrong is committed by the one to whom it is 

entrusted."). Analogously, to prevail on a claim for negligent hiring, the plaintiff should be required to establish 

not only that the employer was negligent in hiring the 

employee, but also that the employee committed an actionable tort against her. When this rule is applied here, it 

is apparent that Willis's negligence claims must fail. Because Willis did not present legally sufficient evidence to 

establish that she suffered severe emotional distress, she 

failed to establish that Gonzales committed an actionable 

tort. Therefore, assuming that Benson was negligent in 

hiring, retaining, training, and supervising Gonzales, 

Willis suffered no compensable injury as a result of this 

negligence. 

We also note that the jury's finding that Gonzales 

sexually harassed Willis cannot provide the basis for 

Willis's negligence [**26] claims. As one comi has 

stated: 

Sexual harassment has never been a common law 

tort; as a cause of action, it is a ~tatutory creation. A negligent supervision [*740] claim cannot be based solely 

upon an underlying claim of sexual harassment per se, 

because the effect would be to impose liability on employers for failing to prevent a harm that is not a cognizable injury under the common law. 

Hays, 844 F. Supp. at 1223 (citation omitted). Moreover, if we allowed a sexual harassment finding to supply 

the basis for recovery on a negligent hiring claim, the 

statutory procedures and limitations applicable to such 

claims would be rendered superfluous. See, e.g., TEX 

LAB. CODE ANN. § 21.201 (Vernon 1996) (requiring 

exhaustion of administrative remedies); id. § 21.2585 

(limiting available damages). ' Accordingly, negligent 

hiring will be a viable cause of action in a sexual harassment case only if the harassment encompasses misconduct that is independently actionable under the common law, such as battery or intentional infliction of emotional distress. See Hays, 844 F. Supp. at 1223. 

3 In this case, for example, Willis was precluded from recovering on her sexual harassment 

claim, in spite of the jury's favorable finding, because she did not timely file a complaint with the 

Texas Commission on Human Rights. 

[**27] 

. We must affirm a directed verdict if the record discloses a ground that establishes, as a matter of law, that 

the movant was entitled to judgment, even though the 

ground was not embodied in the motion for directed verdict. See Granato v. Bravo, 498 S. W.2d 499, 502 (Tex. 

Civ. App.--San Antonio 1973, no writ); see also Texas 

Employers Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex. 

1977); Connell v. Connell, 889 S:W.2d 534, 539 (Tex. 

App.--San Antonio 1994, writ denied). Because Willis 

failed to establish that Gonzales conunitted an actionable 

tort, her negligence claims are precluded as a matter of 

law. We therefore affirm the directed verdict on these 

claims. 

Tom Rickhoff, Justice 

CONCUR BY: Karen Angelini 

CONCUR 

I do not believe Gonzales's conduct was "so outrageous in character, and so extreme in degree, as to go 

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community." RESTATEMENT (SECOND) OF TORTS§ 

46 cmt. d (1965). I agree with all other aspects of the 

[**28] majority opinion and therefore concur in the 

judgment. 

Karen Angelini, Justice 
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 Publication July 27, 2012. 

Rehearing denied by Methodist Hasp. v. German, 2012 

Tex. App. LEXIS 6246 (Tex. App. Houston 1st Dist., Apr. 

19, 2012) 

Petition for review denied by German v. Methodist 

Hasp., 2013 Tex. LEX1S 408 (Tex., May 17, 2013) 

PRIOR HISTORY: [**1) 

On Appeal from the !25th District Court, Harris 

County, Texas. Trial Court Case No. 2003-30417. 

In re Methodist Hasp., 2009 Tex. App. LEXIS 4993 (Tex. 

App. Houston 1st Dist., June 26, 2009) 

JUDGES: Panel consists of Justices Keyes, Sharp, and 

Massengale. Justice Sharp, concurring without opinion. 

OPINION BY: Michael Massengale 

OPINION 

[*336) This is a medical malpractice case against 

a hospital involving the care provided by its nurses. Appellee John Geiman was admitted to The Methodist 

Hospital for surgery to repair a congenital heart defect. A 

tragic surgical error committed during his first heart surgery required additional surgeries and interventions. 

German survived, but only after suffering the amputation 

of one leg, one foot, and most of his fingers. 

German filed suit to recover damages for injuries 

arising from the original surgery and his subsequent 

course of treatment. After settling with his doctors, he 

proceeded to trial against the sole remaining defendant, 

The Methodist Hospital. Geiman sought to hold Methodist responsible for the acts of its nurses, alleging that 

the nurses failed to notice that he was having a danger-. 

ous reaction to medication, and that their failure to take 

appropriate action led to the eventual amputations. German also alleged that Methodist did not properly train its 

nurses to [**2) recognize and appropriately respond to 

his symptoms. 

The jury awarded damages to German based on 

findings that Methodist was negligent and was 50% responsible for the injuries. The jury also found that the 

hospital had acted with conscious indifference in 

providing medical care and awarded exemplary damages. 

The trial court entered judgment on the verdict in German's favor. Among other things, the hospital contends 

on appeal that the evidence was legally insufficient to 

support the verdict, primarily because critical testimony 

by German's expert witness was unreliable and conclusory. 

Because there is no evidence of at least one element 

of each of German1s theories of negligence, we reverse 

the trial court's judgment and render a take-nothing 

judgment in favor of The Methodist Hospital. 

Background 

John German, then a 32-year-old mechanic, was 

admitted to The Methodist Hospital for surgery to correct 

a congenital heart defect. During the surgery, Dr. Mahesh Ramchandani committed a serious error by puncturing German's healthy mitral valve. The puncture resulted in a condition known as acute mitral valve regurgitation, which caused blood to flow backwards through 

the heart and which would [**3) have been fatal if left 

untreated. Ramchandani attempted to repair the valve 

during this surgery by suturing it, [*337) but a variety 

of serious medical conditions over the following two 

days indicated that the attempted repair was not successful. On two consecutive days, doctors performed additional 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 

iiTeparably damaged, ultimately replacing it. During each 

surgery, German was placed on a cardiopulmonary bypass machine (also known as a heart-lung machine). After the second failed valve repair, an extracorporeal 

membrane oxygenation machine (or ECMO) was also 

used to provide external cardiopulmonary support. Both 

the heart-lung machine and the ECMO required use of a 

blood-thinning medication, and for this reason German 

was given heparin, an FDA-approved anticoagulant. 

These were the only times that German received heparin 

during this hospital stay, and it was administered by the 

doctors themselves, not the nurses in the cardiovascular 

intensive care unit. After each surgery, German received 

care in the hospital's cardiovascular !CU. 

Over the course of eight days beginning with his 

original [**4] surgery, German experienced, among 

other things, cardiac distress, multi-system organ failure, 

life-threatening bleeding, and low blood pressure. He 

required multiple blood transfusions, prompting the doctors to artificially elevate his blood pressure through the 

use of drugs known as vasopressors. German also experienced a significant decline in his blood platelet count, 

weak pulses, and other signs of blood clotting in his extremities. At trial, German's expert witness testified that 

these symptoms could indicate a rare adverse reaction to 

heparin called heparin-induced thrombocytopenia, also 

known as HIT. But German's expert conceded that these 

symptoms were also consistent with the numerous surgical interventions and medications that had been administered, and some of German's doctors testified that at the 

time of treatment they believed the symptoms were 

caused by factors other than HIT. For example, German's 

decreased platelet count was consistent with the mitral 

valve regurgitation resulting from the punctured valve, 

and it was also consistent with the repeated use of the 

heart-lung machine and ECMO during German's treatment, both of which had the effect of decreasing platelets. [**5] His weak pulses were consistent with the use 

of vasopressors, which constricted blood vessels and had 

the effect of depriving the capillaries in his extremities of 

blood in order to keep blood flowing to the brain and 

other vital organs. 

The treating doctors testified without contradiction 

at trial that German would have died without these surgical interventions. Unfortunately, the doctors could not 

restore circulation to his extremities, and German later 

underwent surgery to amputate his left leg above the 

knee, all of his fingers, and all of the toes and part of his 

right foot. 

German filed a medical malpractice lawsuit against 

his treating physicians and Methodist. He settled all of 

his claims against the doctors, and he proceeded to trial 

solely against Methodist on a theory that he had HIT, 

that it was preventable, and that the negligent failure to 

prevent it resulted in his amputations. German alleged 

that Methodist was liable for the negligence of its cardiovascular ICU nurses who failed to recognize the signs 

and symptoms of HIT and failed to alert the doctors to 

these conditions. In addition, German alleged that 

Methodist negligently failed to train its cardiovascular 

ICU nurses [**6] about HIT. Finally, German alleged 

that Methodist and its nurses acted with conscious indifference in caring for him. 

The jury found that Methodist was negligent and 

acted with malice, and it awarded [*338] compensatory and exemplary damages to German. The final judgment awarded $7,1J6,095.89 to German on his claims 

against Methodist. 

Analysis 

In its first three issues, Methodist challenges the sufficiency of the evidence to support the jury's negligence 

findings. The elements of a medical negligence claim 

are: (1) a duty to conform to a certain standard of care; 

(2) a failure to conform to the required standard; (3) actual injury; and (4) a causal connection between the 

conduct and the injury. See, e.g., Mariner Health Care of 

Nashville, Inc. v. Robins, 321 S. W.3d 193, 205 (Tex. 

App.--Houston [1st Dist.] 2010, no pet.). A medical 

malpractice plaintiff must present evidence of a reasonable medical probability that the alleged injuries "were 

caused by the negligence of one or more defendants, 

meaning simply that it is 'more likely than not' that the 

ultimate harm or condition resulted from such negligence." Kramer v. Lewisville Mem'l Hasp., 858 S. W.2d 

397, 399-400 (Tex. 1993). Methodist argues [**7] there 

was no evidence that its nurses breached a duty under a 

legally proper standard of care, no evidence that any alleged breach caused German's injuries, and no evidence 

of any standard of care for the nurses' training. 

When a party who does not have the burden of proof 

at trial challenges the legal sufficiency of the evidence, 

we consider the evidence in the light most favorable to 

the verdict, indulging every reasonable inference that 

would support it. City of Keller v. Wilson, 168 S. W.3d 

802, 822 (Tex. 2005). We will sustain a no-evidence 

point when: 

(a) there is a complete absence of evidence of a vital fact, (b) the court is 

baned by rules of law or of evidence from 

giving weight to the only evidence offered 

to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than 

a mere scintilla, or (d) the evidence conclusively establishes the opposite of the 

vital fact. 
Page 3 

369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, ** 

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 

S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, 

"No Evidence" and "Insufficient Evidence" Points of 

Error, 38 TEX. L. REV. 361, 362-63 (1960)). We review 

the factual sufficiency of the evidence to support a jury 

verdict by considering and [**8] weighing all the evidence, and we will set the verdict aside "only if it is so 

contrary to the overwhelming weight of the evidence as 

to be clearly wrong and unjust." Cain v. Bain, 709 

S.W.2d 175, 176 (Tex. 1986). 

Two distinct theories of Methodist's negligence were 

presented at trial. German contended that Methodist was 

responsible for the negligent failures of its nurses to 

know the adverse effects of heparin, to appropriately 

document and report them, and to initiate the hospital's 

internal chain of command when the doctors did not diagnose HIT. German's other theory was that the hospital 

failed to train its nurses properly. To demonstrate the 

insufficiency of the evidence to support the jury's finding 

of negligence, Methodist must demonstrate the absence 

of evidence to support at least one element of each theory. As to the theory based on the nurses' alleged failures, 

Methodist argues that a critical component of German's 

proposed standard of care conflicted with Texas law by 

effectively requiring the nurses to diagnose German's 

symptoms as HIT, and therefore the proposed standard 

was not supported by any legally sufficient evidence. 

Moreover, Methodist contends that there is no [**9] 

evidence that the nurses breached any other duty or that 

any such breach caused German's injuries. With respect 

to the alleged failure to train, [*339] Methodist argues 

that German offered no evidence of the standard of care 

for training nurses. We will address each of German's 

liability theories and Methodist's contentions in tum. 

I. Negligence of Methodist's nurses 

A. Standard of care--nurses' alleged duty to identify 

and act upon symptoms of medical condition 

Methodist challenges the sufficiency of the evidence 

to establish certain aspects of the standard of care applicable to nurses, and it argues that the standard of care 

propounded by German's expert is legally flawed. Because determination of the standard of care in medical 

malpractice requires knowledge and skills not ordinarily 

possessed by lay persons, evidence of the applicable 

standard of care and its breach is usually established by 

expert testimony. See Jelinek v. Casas, 328 S. W.3d 526, 

533 (Tex. 2010) (causation); Battaglia v. Alexander, 177 

S. W.3d 893, 899 & n. 7 (Tex. 2005) (standard of care). 

Methodist's arguments implicate the sufficiency of German1s expert testimony--both the expert's opinions and 

the reliability of the information [**10] upon which he 

relied in forming his opinions. 

Challenges to expert opinions ordinarily arise in the 

context of rulings on their admissibility, which are reviewed for an abuse of discretion. See Whirlpool Corp. v. 

Camacho, 298 S.W.3d 631, 638 (Tex. 2009). But in some 

cases, as here, a party asserts on appeal "that unreliable . 

.. expert testimony is not only inadmissible, but also that 

its uureliability makes it legally insufficient to support a 

verdict.'' Id. "Opinion testimony that is conclusory or 

speculative is not relevant evidence, because it does not 

tend to make the existence of a material fact 'more probable or less probable.'" Coastal Transp. Co. v. Crown 

Cent. Petroleum C01p., 136 S. W.3d 227, 232 (Tex. 2004) 

(quoting TEX. R. EVID. 401). In such cases, courts must 

determine if the testimony is sufficiently reliable to make 

it probative of a material fact. See Whirlpool, 298 S. W.3d 

at 637. "[I]t is the basis of the witness's opinion, and not 

the witness's qualifications or his bare opinions alone, 

that can settle an issue as a matter of law; a claim will 

not stand or fall on the mere ipse dixit of a credentialed 

witness." Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 

1999). "It [**11] is not enough for an expert simply to 

opine that the defendant's negligence caused the plaintiffs injury." Jelinek, 328 S.W.3d at 536. 

Dr. Akella Chendrasekhar was designated as German's expert witness on the standard of care for nursing 

care. Before trial, Methodist challenged Chendrasekhar's 

qualifications, and the trial court held a two-day hearing 

on a motion to exclude his testimony. While permitting 

much of Chendrasekhar's proposed testimony, the trial 

court ruled that he could not testify that the nurses should 

have diagnosed HIT. Nevertheless, at trial Chendrasekhar opined that the nurses' standard of care required them 

to recognize clotting signs and a downward platelet trend 

as symptoms of HIT, to report them to the physicians as 

such, and ultimately to use the hospital's internal chain of 

command to get 11 satisfaction11 when the doctors failed to 

diagnose HIT and treat Getman accordingly. 

Methodist argues that Chendrasekhar's opinion 

about the standard of care conflicted with legal prohibitions against the practice of medicine by nurses because 

his proposed standard required the nurses not only to 

recognize and report the objective data that German's 

platelet levels were dropping [**12] or fluctuating, but 

also to take the further step of diagnosing HIT. That is, 

Methodist contends that under Chendrasekhar's [*340] 

proposed standard of care, the nurses would have been 

required to conclude that German's platelet levels were 

dropping or fluctuating because he had HIT and that the 

doctors had misdiagnosed German by not concluding 

that he had HIT. Methodist contends this proposed 

standard of care is incorrect as a matter of law, and thus 
Page 4 

369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, ** 

Chendrasekhar's testimony in this regard is no evidence 

of the standard of care. 

In response, German argues that he never sought to 

impose liability on the hospital because its nurses failed 

to make a medical diagnosis. Rather, German contends 

that the nurses had a statutory duty to know, document, 

and report the effect of medications and treatments administered to patients. German contends that the nurses 

should have known that HIT is an adverse effect of heparin, should have recognized that the signs and symptoms they observed were consistent with HIT, and should 

have communicated that information to the treating physicians. 

At trial, Chendrasekhar testified that his qualifications included intensive care work during his residency, a 

post-residency [**13] critical care fellowship, and 

practice of critical care medicine since 1994. He is board 

certified in general surgery, critical care medicine, and 

surgical critical care. He has taught doctors and medical 

students, and he served as the assistant director and director of trauma and critical care medicine at Iowa 

Methodist Medical Center for eight years. At the time of 

trial, he was the director of trauma and critical care at 

Lincoln Hospital in New York. He testified that he 

served as the chairman of the quality improvement 

committee, which encompassed nursing as well as medical care improvement. He testified that he had interacted 

with nurses on the care and treatment of HIT and that he 

had reviewed nursing literature pertaining to HIT. 

Chendrasekhar's testimony included reading from 

several nursing journals, including an article entitled 11Bleeding complications in the patient with cardiac disease following thrombolytic and anti-coagulant therapies" from Critical Care Nursing Clinics of North America, which he said was relevant to the nurses' standard of 

care. The article stated: 

While the patient is receiving heparin, 

the platelet count should be monitored 

regularly, and any downward [**14] 

trends in the count reported, as well as 

any change in pulsation or color of an extremity. The nurse should observe for 

poor capillary refill, weakened or absent 

pulses or other signs of decreased perfusion, such as decreased urinary output or 

neurologic changes, which may indicate 

emboli. 

He also read an excerpt from "Heparin-induced thrombocytopenia" published in the Journal of Vascular Nursing, which stated: "Nurses are responsible for recognizing and reporting the signs and symptoms of HIT syndrome." Chendrasekhar specifically opined that in the 

case of German's treatment, Methodist's nurses had the 

following duties under their standards of care: 

o The nurses have a responsibility to 

notify a physician if a patient is having an 

allergic reaction to a medicine. He testified that "HIT is--thrombocytopenia in 

this setting related to HIT is an allergic 

reaction." 

o The nurses should have recognized 

German's clotting signs and downward 

platelet trend as signs and symptoms of 

HIT, and they should have informed the 

treating physicians. 

o Although all the doctors "missed" 

the diagnosis of HIT, the nurses should 

have caught it. 

[*341] o The nurses have a responsibility to use the chain of command to 

[**15] inform superiors "if they don't get 

an appropriate response from the physician," and they should have done so in 

this case. 

Despite his opinion that the applicable standard of care 

required that the nurses recognize and report the symptoms as indicative of HIT, Chendrasekhar nevertheless 

also confirmed that German's many symptoms and complications were also consistent with diagnoses other than 

HIT, such as the decreased platelet levels being consistent with his acute mitral valve regurgitation. 

On cross-examination, Chendrasekhar testified that 

he did not know that there was a Texas statute that govemed the practice of nursing, had never heard of the 

North American Nursing Diagnosis Association, and was 

unaware of licensing or continuing education requirements for nurses in Texas. He also did not know whether 

Texas excluded medical diagnosis from the practice of 

nursing. 

In contrast to Dr. Chendrasekhar's opinions about 

the nurses' duties and the applicable standard of care, 

Nurse Kathy Knaack, the nursing director of Methodist's 

cardiovascular intt:tnsive care unit, testified that a nursing 

diagnosis is "based off the nurse's assessment, a problem 

in the patient that they can address [**16] based on 

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 

patient in which the physician would order specific 

treatments; a nursing diagnosis has things to do with 

what a nurse can do to intervene and support the medical 

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 standards for acceptable nursing diagnoses. The 2001-2002 

NANDA manual, which was admitted into evidence at 

trial, defmed "nursing diagnosis" as "[a] clinical judgment about individual, family, or community responses 

to actual or potential health problems/life processes. A 

nursing diagnosis provides the basis for selection of 

n,ursing interventions to achieve outcomes for which the 

nurse is accountable." NANDA, NURSING DIAGNOSES: 

DEFINITIONS & CLASSIFICATIONS 2001-2002, at 245 

(Marjory Gordon eta!., eds., 2001). 

Knaack offered her opinion that a doctor's order is 

required for the administration of medication, but a nurse 

is nevertheless required to know why a medication is 

ordered and its effects. This includes adverse reactions, 

such as the risk of bleeding [**17) associated with giving a patient a blood-thinning medication like heparin. 

She also testified that Methodist's nurses do not--and 

legally cannot--make medical diagnoses, because nurses 

are not educated or licensed to do so, Nurse Virginia 

Hathaway, a certified critical care registered nurse who 

cared for German in the cardiovascular ICU, also testified that a diagnosis of HIT is a medical diagnosis that a 

nurse cannot make. 

Both Methodist and German rely on the Nursing 

Practice Act and its implementing regulations in the 

Texas Administrative Code as defining the standard of 

care for nurses applicable to this case. See TEX ace. 

CODE ANN. §§ 301.001-301.307 (West 2004 & West 

Supp. 2010) (Nursing Practice Act); 22 TEX. ADMIN. 

CODE§§ 213.1-227.6 (2010). Although these regulations 

have been amended since the events giving rise to German's claims, neither party argues that any change is 

relevant to this appeal. Rule 217.11 of the Texas Administrative Code, entitled 11 Standards of Nursing Practice, 11 

defines the 11minimum acceptable level of nursing practice" for a given setting. See 22 TEX ADMIN. CODE § 

217.11. Among the standards applicable [*342) to all 

nurses are the requirements that a nurse [**18) know 

the rationale for and effects of medications and treatments and correctly administer them, as well as accurately and completely reporting the patient's signs, 

symptoms, and responses. !d.§ 217.11(/)(C), (D). 

In defining 11 professional nursing," the Nursing 

Practice Act specifically excludes "acts of medical diagnosis." TEX. ace. CODE ANN. § 301.002(2) (West Supp. 

20 I 0). Furthermore, the Act specifically states that it 

"does not authorize the practice of medicine as defined 

by Chapter !51" of the Occupations Code. See id. § 

301.004(b). The Medical Practice Act defines "practicing 

medicine 11 to include "the diagnosis, treatment, or offer to 

treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the 

attempt to effect cures of those conditions." Id. § 

151.002(a)(I3). Medical diagnosis is commonly understood to be the determination of the cause and nature of a 

patient's condition. See, e.g., Loper v. Andrews, 404 

S. W.2d 300, 304-05 (Tex. 1966); Texas Employer's Ins. 

Ass'n v. Sauceda, 636 S. W.2d 494, 498 (Tex. App.--San 

Antonio 1982, no writ). ' 

Both Methodist and German agree that nurses cannot legally make medical diagnoses. Methodist [**19] 

argues that Chendrasekhar's stated standard of care required exactly that. In response, German argues that the 

Chendrasekhar's standard of care required no more than 

for the nurses to know and report the effects of the medications they administer, because Chendrasekhar testified 

that HIT is an allergic reaction to heparin. 

German received heparin only during his surgeries 

and only when administered by a doctor. The Standards 

of Nursing Practice required the nurses assisting with 

German's care to know the rationale for and effects of 

using heparin, as well as to accurately and completely 

report and document German's status, including his 

signs, symptoms, and responses. See 22 TEX. ADMIN. 

CODE§ 217.11(J)(C), (D). The nurses' duties thus included accurately and completely reporting the signs, 

symptoms, and responses relied upon by German's treating physicians (and later relied upon by Chendrasekhar 

in the formation of his opinions), such as German's falling or fluctuating platelet levels and intermittent weak 

pulses. These signs, symptoms, and responses were consistent with more than one medical or clinical cause, not 

just HIT. Determining that these clinical findings actually were symptoms [**20) of HIT--as opposed to side 

effects of German1s ongoing treatment or symptoms of 

some other disorder such as acute mitral valve regurgitation--would have required the nurses to analyze the cause 

and nature of German1s condition. This is a medical diagnosis, prohibited to nurses under Texas Jaw. See TEX. 

ace. CODE ANN.§ 301.004(b) (Nursing Practice Act); id. 

§ 151.002(a)(J3) (Medical Practice Act). Accordingly, 

the signs, symptoms, and responses the nurses were 

obliged to report and document could not have included 

the characterization or diagnosis of the symptoms as being indicative of HIT. 

Chendrasekhar's proposed standard of care effectively required the nurses to engage in the unauthorized 

practice of medicine by making a medical diagnosis. 

Anything that could be characterized as the practice of 

medicine is expressly excluded from the scope of professional nursing in Texas as defined by the Nursing Practice Act. See TEX. ace. CODE ANN. § 301.004(b). The 

nurses had no legal duty to draw any conclusion from 

their observations about the patient1s signs, symptoms, 

and responses that would have required a medical diagnosis. Chendrasekhar's testimony [*343] suggesting 

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 impermissibly hold nurses to standard higher than that allowed 

by law. See Birchfield v. Texarkana Mem'l Hasp., 747 

S. W.2d 361, 365 (Tex. 1987) (expert's opinion on a 

mixed question of law and fact must be predicated on 

"proper legal concepts"); Schneider v. Haws, 118 S. W.3d 

886, 889-90 (Tex. App.--Amarillo 2003, no pet.) (medical 

malpractice expert witness1s attempt to impose upon a 

doctor and his assistant "a standard of care greater than 

that compelled by law ... constituted no evidence, as a 

matter of law, of the applicable standard of care"). The 

nursing journals entered into evidence also were no evidence that a nurse should interpret certain symptoms as 

indicating HIT. Instead, consistent with the definition of 

professional nursing in Texas, see 22 TEX. ADMIN. CODE 

§ 217.11 (l)(C), (D), they merely stated that, when a patient receives heparin, a nurse should: monitor and report 

downward trends in platelet count; report 11 any change in 

pulsation or color of an extremityn; 11 observe11 certain 

signs including "poor capillary refill, weakened or absent 

pulses or other signs of decreased perfusion11; and "report11 such 11 signs [**22] and symptoms." 

In addition, Chendrasekhar's testimony that he was 

unaware of the Texas statutes governing or restricting 

nursing practice made his testimony about the standard 

of care unreliable. See Whirlpool, 298 S. W.3d at 637, 

642. Although Chendrasekhar testified about his extensive experience in intensive care, including working with 

and reviewing the work of nurses, Chendrasekhar did not 

provide any basis for his opinion that the nurses' standard 

of care required them to determine that a patient suffered 

from HIT and then act upon that determination. Any 

such opinion in this case necessarily required reference 

to the relevant legal restrictions on the practice of nursing, yet Chendrasekhar's opinion could not account for 

these restrictions considering that he admitted being ignorant of their substance. Thus, to the extent that he testified that the nurses should have recognized German's 

symptoms as signs of HIT and characterized them as 

such, this testimony is no evidence of the applicable 

standard of care because of its fundamental unreliability. 

We hold that German offered no evidence of any 

standard of care effectively requiring the nurses to diagnose HIT. This holding does [**23] not mean that a 

nurse has no duty to recognize and appropriately report 

or otherwise act on the signs and symptoms of a dangerous allergic reaction. Instead, consistent with the complementary provisions of the Medical and Nursing Practice Acts, we hold that Texas law specifies that it is the 

doctor, not the nurse, who draws medical conclusions 

from the information observed and reported by the nurse. 

Only doctors are legally authorized to make a medical 

diagnosis by evaluating a patient's medical treatment and 

the development of subsequent symptoms to conclude 

that a particular medical condition has resulted. This is 

particularly true when, as occurred in this case, the signs 

and symptoms observed by a nurse are consistent with 

more than one disease, syndrome, or cause. Opinion testimony about the standard of care in a medical malpractice case cannot be used to expand this responsibility to 

nurses in conflict with Texas statutes and regulations 

governing the nursing profession. To the extent Chendrasekhar also opined that Methodist's nurses should 

have gone over the heads of German's treating doctors to 

seek 11Satisfaction11 when those doctors did not diagnose 

German with HIT and treat [**24] him [*344] accordingly, we hold that such testimony also fails because 

it is based on the same flawed premise that the nurses 

effectively could be required to diagnose HIT. 

B. Breach and causation--adequacy and effect of 

nurses' observations and reports 

The nurses' failures to identify HIT and act in accordance with Dr. Chendrasekhar's opinion of their duties in that regard were not the only theories of Methodist1s negligence presented at trial. German also contended that the nurses failed to observe and properly 

communicate to the doctors the presence of symptoms 

that may have indicated HIT. In particular, Gennan argues that he presented evidence that the nurses failed to 

document and report to the physicians his downward 

trend in platelet counts, weak pulses, and clotting signs. 

Chendrasekhar testified that the nurses failed to satisfy 

their duty to document and communicate this information to the doctors. German thus argues that the evidence supports the jury's verdict that acts of negligence 

attributable to the hospital proximately caused his injuries. 

Methodist argues both that there is no evidence that 

the nurses failed to report completely on German's signs 

and no evidence that the nurses' [**25] actions caused 

Gennan1s injuries and amputations. In particular, Methodist points to the evidence in the record about the thorough nursing assessments conducted in the cardiovascular ICU and the physicians' testimony that they would not 

have done anything differently if the nurses provided 

more information. 

a. Adequacy of nurses' observations and communication 

Chendrasekhar testified that the nurses should have 

known the potential adverse effects of heparin, but their 

deposition testimony showed their knowledge was inadequate. For example, Methodist's nurses testified that 

heparin can cause excessive bleeding, but they did not 

indicate awareness that clotting was one of the drug's 

potential adverse effects. When German's blood pressure 

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 

process is going on, like--that's within the blood vessel, 

such as clotting, Because you are not feeling a pulse yet 

the blood pressure is such that you should be feeling a 

pulse." He testified that the nurses should have recognized that the blood pressure was discordant and "at least 

informed the physician that was caring for him"; that the 

nurses [**26] should have noticed a significant drop in 

German's platelet counts from the time of his admission 

to the hospital to the time of each assessment; and that 

they should have reported trends in his clotting signs as 

well. 

Nurse Knaack testified that, consistent with hospital 

procedure, the nurses performed a head-to-toe, hands-on 

nursing assessment of German within one hour of each 

admittance to the cardiovascular ICU after surgery and 

every four hours thereafter. In doing so, a nurse examined all of German's major organ systems by sight, touch, 

and measurements with medical equipment, as well as by 

speaking to him when possible, For example, the cardiovascular part of the assessment required the nurse to 

monitor German's heart sounds with a stethoscope, to 

touch his neck veins to assess cardiac function, to look 

for swelling throughout his body, to check for pulses by 

touching his arms, feet, and other body parts or by using 

a Doppler machine, and to squeeze his nail beds and 

watch the color return to determine capillary refill time. 

The cardiovascular ICU nurses also monitored German's 

[*345] vital signs--either every hour or every 15 

minutes--when he received certain medications. This 

monitoring [**27] included his blood pressure, respiratory rate, temperature, heart rate, pulmonary artery catheter reading, drip medication and pulmonary status, oxygen or- ventilator status, and neurological assessment. 

The vital signs and the information from the periodic 

hands-on, head-to-toe assessments were stored in German's bedside computer, which could be accessed by 

every member of the cardiovascular !CU. 

Knaack also testified about the importance of continuity of care, which required communication among the 

patient1s health care providers, Continuity of care included both written nursing records and verbal bedside 

updates from the nurses to the health care providers. 

Knaack testified that a nurse updates a doctor on 11her 

clinical assessment findings ... anything related to the 

medications that the patient is receiving [and] lab work 

or test results." She testified that the standard of care 

does not require the nurse to record verbatim what she 

told the doctor; rather, the standard of care is satisfied if 

the nurse simply notes, uupdate given. 11 

Cardiovascular ICU nurses at Methodist follow 

nursing standards based on those set by the American 

Association of Critical Care Nurses. Knaack reviewed 

[**28] the nurses' notes from the relevant time period. 

During German's critical first days in the cardiovascular 

ICU, nurses performed more than 30 head-to-toe nursing 

assessments. Knaack testified that they were done within 

one hour from the time German was admitted or readmitted to the JCU and every four hours thereafter, These 

assessments included monitoring blood pressure and 

looking for signs of clotting. The nurses monitored German's pulses and platelet counts during this same period, 

testing his platelet counts ten times. Knaack also testified 

that a bedside computer is assigned to each patient for 

the purpose of documenting the medical record and 

nursing notes. Nurses access laboratory results, including 

platelet levels, through the bedside computer. All the 

doctors, respiratory therapists, and physical therapists, as 

well as the dietician and pharmacist, also had access to 

the laboratory results through the bedside computer. 

Dr. Faisal Masud, a critical care anesthesiologist and 

cardiac anesthesiologist, worked at Methodist's cardiovascular ICU and treated German there, Methodist employed around-the-clock cardiovascular ICU physicians 

and critical care specialists, so that physicians [**29] 

were available at all times if a nurse needed to contact a 

specialist. Masud explained that the nurses work with the 

cardiovascular ICU team of surgeons, critical care specialists, residents, physicians' assistants, and nurse practitioners. He testified that nurses are an important part of 

patient care, serving 11 continuously at the bedside 11 because 11no physician can be continually at the bedside. 11 

He characterized the nurses' role as an 11 integral part of 

anything," explaining that physicians provide instruction 

to the nurses, that the physicians and nurses routinely 

exchange information, with nurses reporting significant 

changes to the physician or other appropriate team 

member. Although he reviewed the nursing notes at 

times, he relied on the nurses' verbal updates about 

changes in a patient's status. Masud explained that both 

as his general practice and specifically in the case of 

German's treatment, he listens to the nurses and actively 

evaluates and treats the patient while he is at the bedside, 

Chendrasekhar opined that the nurses' failure to 

recognize and act on the signs and symptoms of HIT 

proximately caused [*346] German's injuries. Again 

we look to the basis of his opinions, See Whirlpool 

Corp., 298 S. W.3d at 637. [**30] Although the nurses 

could not be required to make a medical diagnosis of 

HIT, they were required to accurately and completely 

report German's signs, symptoms, and responses. See 22 

TEX. ADMIN. CODE § 217. 11. There is no evidence supporting Chendrasekhar's opinion that they failed to do so 

in the sense that the relevant information was not actually observed and documented. Nurse Knaack testified that 

the nursing record included notes on clinical assessments 

done in accordance with the one-hour and four-hour 

standards set by the hospital and that these assessments 
Page 8 

369 S.W.3d 333, *; 2011 Tex. App. LEXIS 10215, ** 

included checking blood pressures, pulses in Gennan's 

extremities, and looking for signs of clotting. In other 

words, the head-to-toe nursing assessments included the 

very signs and symptoms that Chendrasekhar testified 

would be present in a patient who had HIT. And, critically, Chendrasekhar himself testified that the doctors 

were provided all of the information they needed to diagnose HIT, including infonnation about Gennan's weak 

pulses and falling platelet levels. Although he criticized 

the nurses' alleged failure to identity trends in the information they recorded and the adequacy of the nurses' 

verbal reports to the doctors, [**31] such as their failure to verbally report about Gennan's downward trending 

platelet count and fluctuating pulses at a critical point in 

time, he acknowledged that the nurses had documented 

the underlying information in their assessments, which 

were available to the doctors. He thus agreed that the 

doctors should have been able to make a diagnosis of 

HIT with the infonnation available to them--the same 

information he relied upon to conclude that German's 

symptoms indicated HIT. Methodist's nurses observed 

and documented all of this information, upon which 

German's physicians contemporaneously relied for their 

treatment decisions. 

The nursing notes indicate that treating physicians 

were frequently at Gennan's bedside while the nurses 

were there monitoring and caring for German. Having 

reviewed the record, including those pmiions of the record identified in German's briefing as supportive of his 

claim, we find no evidence that the nurses failed to fully 

discharge their duties to accurately and completely 

document the patient1S signs, symptoms, and responses. 

Accordingly, the only possible remaining theories upon 

which the jury could have concluded that the nurses 

failed to satisfy the nursing [**32] standard of care are 

the possibilities that the nurses' duty to report information included the duty to identity trends in that information or to verbally communicate particular information at a particular time. We need not express any 

opinion about whether the evidence would have supported a finding of breach on these narrow theories because, as explained below, there is no evidence that any 

breach of that nature caused German's injuries. 

b. Effect of nurses' reports on treatment decisions by 

German's physicians 

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, 

that they should have specifically informed a treating 

physician of that trend, and that their failure to do so 

caused German to lose his fingers, a leg, and a foot. 

Chendrasekhar also testified about a particular incident 

immediately before Gennan's second surgery, in which 

Dr. Michael Reardon, the co-director of the ICU, was 

present when Gennan began to descend into cardiac arrest. A nurse [*347] asked for Reardon's assistance. 

Reardon placed German on the heart-lung machine, 

[**33] administering heparin in the process. Chendrasekhar offered his opinion that a nurse should have 

told Reardon about the downward platelet trend, and if 

she had, a hematology consult should have been ordered, 

HIT should have been diagnosed, and ultimately heparin 

should not have been used. 

Dr. Reardon confirmed that when the nurse asked 

him for help, he was not specifically made aware of any 

downward trend in German's platelets and he did not call 

for a hematology consult. He looked only at the daily lab 

work and did not know of the falling platelet trend. But 

he testified that he would not have done anything differently even if he had known of the falling trend, because 

Gennan would have died if he did not take immediate 

action. He testified: 

Q. On 9/20/02, if you had known that 

Mr. Gennan's blood platelets were 68 on 

that day and were 24 3 upon admission, 

would you have called for a hematology 

consult? 

A.No. 

Q. And why is that? 

A. Because he was going to be dead 

in a short period of time if I didn't get him 

on bypass, and by the time we could have 

gotten a hematologist, he would be dead 

and his platelet count would have been 

inunaterial. 

Q. So that would be the same for any 

blood platelet [**34]level? 

A. That1s correct. It was my opinion, 

when the nurses asked me, that he was 

going to die in short order without getting 

on the heart lung machine, which is why I 

placed him on it. If he had been stable 

enough to wait, I would have done what it 

took to tide him over until his doctor, Dr. 

Ramchandani, was there. 

Dr. Masud was also present at this same time, and he 

had been treating German for several days and was 

aware of the platelet count. Masud did not believe German had HIT at the time. Instead, he believed that the 

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 

of German's bleeding, he would have thanked the nurse, 

explained why HIT was not the proper medical diagnosis, and, if necessary, asked for the nurse to be reassigned 

to another patient. 

Three of German's other treating physicians also testified that they either had all the information necessary to 

diagnose HIT, or tha~ if a nurse suggested a diagnosis of 

HIT it would not have changed their course of action or 

their assessment that German did not have HIT. Dr. 

Lawrence Rice is a board-certified [**35] hematologist 

who was consulted regarding German's case. Rice testified that he would not have suspected HIT or ordered a 

heparin antibody test in the days following German's first 

surgery, even if he knew the complete history of platelet 

counts, because there were 11 8 lot of alternative explanations for the things going on." He testified that the two 

additional surgeries and Reardon's action in placing 

German on an emergency heart-lung bypass machine 

were necessary to save German's life. And although 

German introduced evidence that an alternative blood 

thinner, Argatroban, was used in treating patients with 

HIT, Rice testified that even assuming German had HIT, 

he would not have recommended the use of an alternative blood thinner. 

Dr. Luis Velez-Pestana, a physician who treated 

German in the cardiovascular ICU, testified that he had 

all the information he needed to care for German when 

he did. He said that although the nurses did not [*348] 

identify a downward "trend" in platelet levels, he made 

himself aware of German's platelet trend by checking his 

records. Velez testified that if a nurse had questioned 

him about whether German had HIT, he would have 

thanked her for the information "because [**36] it's 

very important what they see there with the patient all 

the time," but he would not have diagnosed HIT because 

German did not display the signs and symptoms of HIT 

at that time. Velez also testified that if the nurse said she 

believed German to be having an allergic or adverse reaction to heparin, he would have explained the clinical 

and laboratory findings comported more with use of the 

cardiopulmonary bypass pump and his extreme 

post-surgical bleeding than with a diagnosis ofHIT. 

Dr. Saleem Zaidi was another critical care specialist 

with Methodist who treated German. When asked if he 

would have acted differently if a nurse had suggested a 

diagnosis of HIT, Zaidi explained that HIT was already 

in his mind as a potential medical diagnosis, but the 

treatment for HIT would have exacerbated bleeding and 

German was already in a ulife and death" situation. 

Moreover, Zaidi testified that he knew of the downward 

platelet trend because German was his patient, he had 

cared for him 11 Continuously for four or five days, 11 and 

he had been checking German's laboratory results "continuously ... interoperatively and post-operatively." 

Chendrasekhar testified that if the nurses had informed Reardon [**37] of the downward trend in 

platelet levels, then Reardon should have called for a 

hematology consult and used the alternate anticoagulant 

when putting German on the heart-lung bypass machine. 

But Reardon specifically testified that he would not have 

taken that course of action if the nurses had informed 

him of German's platelet trend because it would have 

cost German his life--thus indicating that the nurses' failure to report in accordance with Chendrasekhar's opinion 

of how they should have did not cause German to receive 

heparin. Chendrasekhar actually agreed that the surgical 

and medical interventions performed at Methodist were 

necessary to save German's life and that he would have 

died if the doctors had not performed the second heart 

surgery. Finally, Chendrasekhar conceded that German's 

many symptoms and complications were consistent with 

diagnoses other than HIT, such as acute mitral valve regurgitation. 

Causation requires proof that the "allegedly negligent act or omission constitute[ s] 1

a substantial factor in 

bringing about the injuries, and without it, the harm 

would not have occurred."' Columbia Med. Ctr. of Las 

Colinas, Inc. v. Hogue, 271 S. W3d 238, 246 (Tex. 2008) 

(quoting [**38] IHS Cedars Treatment Ctr. of DeSoto, 

Texas, Inc. v. Mason, 143 S.W3d 794, 799 (Tex. 2004)). 11Proximate cause cannot be satisfied by mere conjecture, 

guess, or speculation. 11 Id. German1

s treating physicians 

testified that additional information or questions from the 

nurses would not have changed their course of treatment, 

refuting the suggestion that any deficiency in the nurses' 

reporting proximately caused Ge1man1s injuries. German 

properly notes that the jury could have disbelieved the 

treating doctors' testimony, but he still carried the burden 

of proving by a reasonable medical probability that his 

injuries were caused by the alleged breach of failing to 

identify trends in the information they had observed or 

by the alleged breach of failing to verbally notify a doctor about this information. Chendrasekhar offered opinion testimony that, with more information, a doctor 

should have requested a hematology consult and then 

should have altered the course of treatment so as to avoid 

use of heparin. But this speculative [*349] testimony 

is insufficient to raise a question of fact on the element of 

causation, particularly in light of the undisputed evidence 

that German would have died unless [**39] Reardon 

had immediately intervened. See Hogue, 271 S. W3d at 

247. 

In sum, there is no evidence establishing a reasonable medical probability that the course of German's 

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 

doctors had all of the information they needed available 

to them, and the only fact question suggesting a breach 

of duty is whether the nurses should have done more to 

distill certain information for them. Regardless of any 

such breach by the nurses, the undisputed evidentiary 

record also reflects German would have died if the treating doctors altered their course of treatment to obtain the 

hematology consult suggested by German's expert. Accordingly, there is no proof that the nurses' alleged deficiencies were a substantial factor in bringing about German's injuries. See Hogue, 271 S. W.3d at 246. Chendrasekhar's opinions to the contrary were based on nothing more than conjecture, guess, or speculation, rendering them insufficient to establish proximate causation by 

a reasonable medical probability to support German's 

negligence claims. 

II. Failure to train [**40] nurses 

German also claimed that Methodist was negligent 

for failiug to train its nurses about potential adverse reactions to heparin. On appeal, Methodist contends that 

there is no evidence of the standard of care with regard to 

the hospital's duty to train because the trial court specifically ruled before trial that Dr. Chendrasekhar could not 

testify that Methodist should have provided nursing education conc~ming HIT or that Methodist maliciously 

failed to tram Its nurses about HIT. To prevail on this 

theory, German had to prove: (1) under the applicable 

standard of care, the hospital had a duty to train its nurses abo~t HIT; (2) the hospital breached this duty; (3) he 

was mJured; and ( 4) there is a causal connection between 

the breach of care and the injury. See, e.g., Robins, 321 

S. W.3d at 205. 

There is no evidence of the standard of care in the 

record. Nurse Knaack testified that, during the time when 

German was in the hospital, it was her job to make sure 

she had "hired and trained competent staff." She said that 

Methodist's nurses were trained to monitor the patients 

including performing the head-to-toe assessment look: 

ing at lab values, recording information, and re~orting [**41] to the physicians. She testified that she did not 

specifically train the nurses that blood clotting could be 

an adverse reaction to heparin, and she could not say if 

that training had been otherwise provided to them. When 

asked whether the nurses were trained that a drop in 

platelet count was an adverse reaction to heparin, Knaack 

stated, "They are trained that a drop in platelet count can 

be an adverse reaction to many things, and it's the physician's decision whether it's related to heparin or whether 

it's a disease process. 11 

Chendrasekhar did not testify as to a particular 

standard of care regarding training. He did not offer any 

opinion about what the nurses should have been taught, 

how they should have been trained, or how often they 

should received such instruction. He did not opine that 

the appropriate standard of care required Methodist to 

train its ICU nurses to recognize the adverse signs and 

symptoms of heparin. Rather, Chendrasekhar said that 

the excerpts from nursing journals were relevant to the 

appropriate standard of care. [*350] In addition he 

testified that he was completely unaware of licensin~ or 

continuing education requirements for nurses. Thus, to 

the extent he did [**42] offer testimony pertinent to the 

standard of care for training, his testimony was not supported by a reliable foundation. 

Even if there were evidence of the hospital's duty to 

train and a breach of that duty, German could not show 

that he was harmed by the hospital's failure to train unless it resulted iii both the nurses' failure to conform to 

the proper standard of care and his injury. As we have 

explained, German's treating physicians testified that 

additional information or questions from the nurses 

would not have changed their course of treatment. Accordingly, there is no evidence of a causal connection 

between any alleged failure to train the nurses and the 

injuries tliat German alleges. See Hogue, 2 71 S. W.3d at 

247. We therefore hold that there was no evidence of 

standard of care or causation for German's theory of negligent failure to train. 

Conclusion 

Because we hold that there is no evidence of at least 

one element of each of German's theories of negligence, 

we sustain Methodist's first three issues. We reverse the 

trial court's judgment and render a take-nothing judgment 

in favor of Methodist. In light of this disposition, we 

need not address Methodist's remaining issues. 

Michael [**43] Massengale 

Justice