NO. 01-14-767-CV

In the First Court of Appeals

Houston, Texas

Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana 

Lenoir and Christopher McKnight, Individually and as 

Next Friend of Nayla McKnight, 

Appellants-Plaintiffs.

v. 

U.T. Physicians, 

Appellee-Defendant,

On Accelerated Appeal From Cause No. 2012-35806 

In the 164th Judicial District Court of Harris County, Texas 

Honorable Alexandra Smoots-Hogan, Presiding Judge 

SUR-REPLY BRIEF OF APPELLEE U.T. PHYSICIANS 

NORTON ROSE FULBRIGHT US LLP KEN PAXTON 

Attorney General of Texas 

David R. Iler CHARLES E. ROY 

State Bar No. 10386480 First Assistant Attorney General 

david.iler@nortonrosefulbright.com JAMES E. DAVIS 

Warren S. Huang Deputy Attorney General for Civil Litig. 

State Bar No. 00796788 KARA L. KENNEDY 

warren.huang@nortonrosefulbright.com Chief, Tort Litigation Division 

Jaqualine P. McMillan 

State Bar No. 24082955 Jason Warner, Asst. Attorney General 

jaqualine.mcmillan@nortonrosefulbright.com State Bar No. 24028114 

1301 McKinney, Suite 5100 jason.warner@texasttorneygeneral.gov 

Houston, Texas 77010-3095 P.O. Box 12548, Capitol Station 

Telephone: (713) 651-5151 Austin, Texas 78711-2548 

Facsimile: (713) 651-5246 Telephone: (512) 463-2197 

 Facsimile: (512) 463-2224 

Counsel for Appellee-Defendant U.T. Physicians 

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00767-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/13/2015 11:42:54 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/13/2015 11:42:54 AM CHRISTOPHER A. PRINE Clerk
i

TABLE OF CONTENTS

 PAGE

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

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

I. The Lenoirs Waived Any Argument Based on Nurse Matthews’ 

Alleged Administration of a Medication Different From the 

One Prescribed By Dr. Gonski.............................................................1

II. The Lenoirs Failed to Plead That Nurse Matthews Allegedly 

Administered a Different Medication From the One Prescribed 

By Dr. Gonski.......................................................................................2

III. The Lenoirs’ New Negligence Theory Still Does Not Fall 

Within Any of the TTCA’s Waiver of Immunity Provisions..............7

IV. Allowing the Lenoirs to Make New Allegations in Their Reply 

Brief Would Promote Gamesmanship .................................................9

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

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

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

INDEX OF AUTHORITIES

 PAGE(S)

CASES

City of N. Richland Hills v. Friend,

370 S.W.3d 369 (Tex. 2012) ...........................................................................7

Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540 (Tex. 2003) ...........................................................................7

Glattly v. Air Starter Components, Inc.,

332 S.W.3d 620 (Tex. App.–Houston [1st Dist.] 2010, pet. 

denied) .............................................................................................................1

Hunt Constr. Group, Inc. v. Konecny,

290 S.W.3d 238 (Tex. App.–Houston [1st Dist.] 2008, pet. 

denied) .............................................................................................................1

Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston,

333 S.W.3d 676 (Tex. App.–Houston [1st Dist.] 2010, pet. 

denied) .............................................................................................................8

Mitcham v. Univ. of Tex. Med. Branch at Galveston,

818 S.W.2d 523 (Tex. App.–Houston [14th Dist.] 1991, writ 

denied) .............................................................................................................8

Univ. of Tex. Health Sci. Ctr. at Houston v. DeSoto,

401 S.W.3d 319 (Tex. App.–Houston [14th Dist.] 2013, pet. 

denied) .............................................................................................................8

Univ. of Tex. Med. Branch at Galveston v. Malveaux,

2010 Tex. App. LEXIS 6054 (Tex. App.–Houston [14th Dist.] 

July 29, 2010, pet. denied)...............................................................................8

Univ. of Tex. Med. Branch at Galveston v. Qi,

402 S.W.3d 374 (Tex. App.–Houston [14th Dist.] 2013, no pet.)..................8

Univ. of Tex. Med. Branch at Galveston v. Tatum,

389 S.W.3d 457 (Tex. App.–Houston [1st Dist.] 2012, no pet.).................7, 9
iii

Zamarron v. Shinko Wire Co.,

125 S.W.3d 132 (Tex. App.–Houston [1st Dist.] 2003, pet. 

denied) .............................................................................................................1

STATUTES & RULES

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

ARGUMENT

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

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

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

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

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

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

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

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

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

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

I. The Lenoirs Waived Any Argument Based on Nurse Matthews’ Alleged 

Administration of a Medication Different From the One Prescribed By 

Dr. Gonski

The Lenoirs’ new argument that Nurse Matthews allegedly administered a 

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

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

opening brief in this appeal.

2

 Specifically, the Lenoirs failed to assert such a 

 1 See, e.g., TEX. R. APP. P. 33.1(a); Hunt Constr. Group, Inc. v. Konecny, 290 S.W.3d 238, 

244-45 (Tex. App.–Houston [1st Dist.] 2008, pet. denied).

2 See, e.g., Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 639 n.3 (Tex. App.–

Houston [1st Dist.] 2010, pet. denied); Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. 

App.–Houston [1st Dist.] 2003, pet. denied).
2

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

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

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

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

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

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

II. The Lenoirs Failed to Plead That Nurse Matthews Allegedly 

Administered a Different Medication From the One Prescribed By Dr. 

Gonski

The Lenoirs’ new argument that Nurse Matthews allegedly administered a 

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

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

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

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

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

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

opined that Nurse Matthews negligently administered a different medication from 

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

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

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

expressly and unambiguously allege that Nurse Matthews: (1) injected the 
3

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

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

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

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

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

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

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

new allegation that Nurse Matthews administered a medication different from the 

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

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

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

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

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

administered to Shana Lenoir by Defendant ANGELA MATTHEWS, an LVN 

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

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

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

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

“progesterone” just as Dr. Gonski ordered.

The Lenoirs also cite Paragraphs 38 and 39 of their petition to support an 
4

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

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

Shana Lenoir. ... Instead, Nurse Matthews allegedly injected 17-hydroxyprogesterone (17-OHP), which is not the same medication.” Reply Br. at 14 (citing CR 123, 

¶¶ 38-39).3

 But Paragraphs 38 and 39 do not contain any such allegation that Dr. 

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

4

 As the

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

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

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

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

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

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

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

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

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

 3 Furthermore, U.T. Physicians does not agree that 17-alpha hydroxyprogesterone caproate 

(17P) and 17-hydroxyprogesterone (17-OHP) are different medications.

4 Paragraph 38 of the Lenoirs’ petition states: “Plaintiffs allege that the progesterone 

injection administered to Shana Lenoir to prevent preterm labor was not an FDA-approved use of 

the drug and therefore, the prescription of the 17-hydroxyprogesterone (17-OHP) is considered 

an off-label use of the drug.” CR 123. And Paragraph 39 of the Lenoirs’ petition states: 

“Plaintiffs allege that although the American College of Obstetricians and Gynecologists 

(ACOG) has recommended the use of 17-alpha hydroxyprogesterone caproate (17P) for the 

prevention of pre-term labor, this is not the drug that was administered to Shana Lenoir.” Id.
5

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

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

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

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

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

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

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

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

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

with the authority to order the progesterone injection administered by Defendant 

ANGELA MATHEWS or the authority to delegate the administration of the 

progesterone injection to Defendant ANGELA MATHEWS because Gonski only 

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

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

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

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

have been practicing medicine without a license by administering the progesterone 

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

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

negligently administered a different medication from the one prescribed by Dr. 
6

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

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

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

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

proximately caused the Lenoirs’ damages. Id. Instead, as to the Lenoirs’ allegations against U.T. Physicians, Dr. Battaglia merely opined that Nurse Matthews 

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

Angela Matthews, LVN injected the progesterone into Ms. Lenoir on 

April 8, 2010 without a valid order from a licensed medical physician. 

Thus, the standards of nursing care dictated that Angela Mathews, 

LVN should not have given the injection as ordered by Dr. Gonski, 

the physician in training, and/or sought approval or in this case 

disapproval, for said injection from a fully licensed member of the 

medical staff. 

First Supp. CR 28.

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

Nurse Matthews negligently administered another type of progesterone from the 

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

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

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

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

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

petition and supported by their own expert – the Lenoirs’ allegations of medical 
7

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

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

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

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

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

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

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

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

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

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

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

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

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

III. The Lenoirs’ New Negligence Theory Still Does Not Fall Within Any of 

the TTCA’s Waiver of Immunity Provisions

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

pled their new argument that Nurse Matthews allegedly administered a medication 

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

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

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

Lenoirs characterize their new negligence theory as follows: “Dr. Gonski’s order 
8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

524-25 (Tex. App.–Houston [14th Dist.] 1991, writ denied)).
9

IV. Allowing the Lenoirs to Make New Allegations in Their Reply Brief 

Would Promote Gamesmanship

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

Physicians any and all other relief to which it may be entitled.
10

Respectfully submitted,

NORTON ROSE FULBRIGHT US LLP

By /s/ Warren S. Huang

David R. Iler

State Bar No. 10386480

david.iler@nortonrosefulbright.com

Warren S. Huang

State Bar No. 00796788

warren.huang@nortonrosefulbright.com

Jaqualine P. McMillan

State Bar No. 24082955

jaqualine.mcmillan@nortonrosefulbright.com

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Telephone:(713) 651-5151

Facsimile: (713) 651-5246
11

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litig.

KARA L. KENNEDY

Chief, Tort Litigation Division

By /s/ Jason Warner *

Jason Warner

Asst. Attorney General

State Bar No. 24028114

jason.warner@texasattorneygeneral.gov

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone:(512) 463-2197

Facsimile: (512) 463-2224

* Signed By Permission

CERTIFICATE OF COMPLIANCE

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

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

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

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

 /s/ Warren S. Huang

 Warren S. Huang
12

CERTIFICATE OF SERVICE

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

was served pursuant to Texas Rule of Appellate Procedure 9.5 electronically 

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

upon the following:

Mr. Joseph M. Gourrier

THE GOURRIER LAW FIRM

530 Lovett Boulevard, Suite B

Houston, Texas 77006

joseph@gourrierlaw.com

(Counsel for Appellants-Plaintiffs)

 /s/ Warren S. Huang

 Warren S. Huang