THE KLEIN LAW FIRM

2000 THE LYRIC CENTRE

440 LOUISIANA STREET

HOUSTON, TEXAS 77002

(713) 650-1111

FACSIMILE (713) 227-1121

 

MYRIAM K. LEGGE

 OF COUNSEL

ALEXANDER B. KLEIN III

BOARD CERTIFIED

PERSONAL INJURY TRIAL LAW

TEXAS BOARD OF LEGAL

SPECIALIZATION

ALSO LICENSED IN COLORADO

March 4, 2015

Mr. Christopher A. Prine Via eFiling

Clerk, 14 Court of Appeals

th

301 Fannin Street, Suite 245

Houston, Texas 77002

Re: Appellate Cause No. 14-14-00112-CV; Debra C. Gunn, M.D.,

Obstetrical and Gynecological Associates, P.A., and Obstetrical and

Gynecological Associates, P.L.L.C. vs. Andre McCoy, as Permanent

Guardian of Shannon Miles McCoy, an Incapacitated Person; In the

Fourteenth Court of Appeals, Houston, Texas

Dear Mr. Prine:

I am writing to provide the McCoy family’s response to the post-submission

letter brief submitted by Debra C. Gunn, M.D.

I. Dr. Brewer’s causation testimony is legally sufficient.

The position taken by Dr. Gunn in her letter brief is curious given the fact that

she told the jury that she had “no opinions” about the topic of proximate cause , or

1

the accuracy of Dr. Brewer’s blood loss calculations . Dr. Gunn testified at trial that 2

she not only lacked the “expertise” to testify about the cause of Shannon’s code and

brain damage, she also told the jury that, if someone wanted to calculate Shannon’s 3

blood loss on the 14 , they needed to ask Dr. Brewer:

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 RR. Vol. 10, 28:4-15. 1

 RR. Vol. 10, 151:7-152:4. 2

 RR. Vol. 10, 123:9-16. 3
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 2

Q: Did you do these calculations?

A: I didn't do those exact calculations. No, sir, I did not.

Q: I see. So if we back up to around 7:27 in the morning where Dr. Brewer

had said about 25 percent of the blood volume was lost when her

hemoglobin was 5.5. Do you agree or disagree with that number?

A: You would have to ask Dr. Brewer.

RR. Vol. 9, 277:4-11 (emphasis added).

Despite these concessions, Dr. Gunn’s recent correspondence reads more like

a pre-trial report from a defense expert explaining her rebuttal points on causation

rather than a letter brief on legal sufficiency. Although Dr. Gunn has admitted that

she is unqualified to address the issue, her letter brief explores the factual minutiae

of Dr. Brewer’s testimony in attempt to convince this Court that Dr. Brewer and the

jury got it wrong on causation, but her experts got it right. And, as a result, this Court

should find that Dr. Brewer’s causation testimony amounts to no evidence at all. 

Dr. Gunn’s argument ignoresthe fundamental tenet ofreviewing a no evidence

point on appeal–when causation evidence (e.g., evidence about a disputed fact) falls

within the zone of reasonable disagreement, the reviewing appellate court is

prohibited from invading the fact finding role of the jury to sustain a no-evidence

challenge. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); Morrell v.

Finke, 184 S.W.3d 257, 272 (Tex.App.–Fort Worth 2005, pet. denied). Dr. Brewer

provided legally sufficient evidence on the issue of proximate cause, and Appellants

lost the “battle of the experts” at trial. While Dr. Gunn invites this Court to sit as the

thirteenth juror and re-try this case on causation, the invitation to substitute a different

decision for the one reached by the jury in this case should be declined.

In a battle of competing experts, the jury has the sole responsibility to

determine the credibility of the witnesses and the weight to be given to their

testimony. Morrell v. Finke, 184 S.W.3d 257, 272 (Tex.App.–Fort Worth 2005, pet.

denied). The jury alone gets to decide which expert’s testimony on causation should

be accepted or rejected in reaching its verdict. Morrell, 184 S.W.3d at 272; Wilson,
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 3

168 S.W.3d at 822. On appeal, when the losing party complains that the expert

testimony the jury relied on to reach its verdict is legally insufficient, the reviewing

court is not free to re-weigh the evidence, re-try the case, and set aside the jury’s

verdict. Morrell, 184 S.W.3d at 272. This is true even if the reviewing court feels

that a different result based on the same evidence is more reasonable. Morrell, 184

S.W.3d at 272.

If Texas law really means what it says, e.g., that all evidence in support of the

jury’s finding on proximate cause must be considered in the light most favorable to

the verdict; and, all reasonable inferences to be drawn from the evidence concerning

proximate cause, including Dr. Brewer’s testimony, must be made in favor of

supporting the jury’s verdict, the legal sufficiency challenge to Dr. Brewer’s

testimony should be overruled. Wilson, 168 S.W.3d at 821. Nearly twenty-five years

ago, this Court made the following observation that provides an enduring backdrop

against which Dr. Gunn’s legal sufficiency challenge should be viewed:

Even if we as the reviewing court might view the circumstances of this

tragic case contrary to the way the jury did, we cannot become a

thirteenth juror and substitute our judgment for theirs. In a battle of

competing evidence, it is the sole obligation of the jury to determine the

credibility of the witnesses and to weigh their testimony. ... And it is our

obligation to see that the process was fair and carried out according to

the rules. We cannot under any circumstances re-try the case.

Warner v. Hurt, 834 S.W.2d 404, 408–09 (Tex.App.–Houston [14th Dist.] 1992, no

writ); see also Morrell, 184 S.W.3d at 272. Here, the jury was free to believe Dr.

Brewer’s causation testimony over the opinions expressed by the defense experts. 

The jury was free to accept the McCoy’s theory of the case, and to reject Appellants’

theory of the case. In cases like this one, where reasonable jurors could resolve

conflicting causation evidence either way, a reviewing court must presume they did

so in favor of the prevailing party. Wilson, 168 S.W.3d at 822. Turning now to the

specific points argued by Dr. Gunn, the briefing below shows that her no evidence

challenge to Dr. Brewer’s testimony should be overruled. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 4

II. Dr. Gunn’s attempt to establish the incorrectness of Dr. Brewer’s

blood loss calculations for the jury misses the mark on proximate

cause.

Contrary to Dr. Gunn’s contention, the answer to Justice Boyce’s question is

“yes;” there was evidence presented to the jury showing a mechanism of injury

independent of Shannon’s blood loss. That mechanism was twofold: (1) Dr. Gunn’s

negligent failure to order and administer fresh frozen plasma (“FFP”) to Shannon on

the 14 , and (2) the negligent ordering and administration of Lasix–a diuretic drug th

that caused Shannon to experience fluid volume loss independent of the blood loss

she was experiencing fromthe DIC. Each ofthese causation mechanisms is discussed

below.

A. If Shannon had been administered FFP on the 14 , as required by th

the standard of care, her blood would have been able to effectively

coagulate or clot, stopping the blood loss from the DIC. 

Several undisputed facts are relevant to this aspect of Dr. Brewer’s causation

testimony. They are as follows:

1. Shannon was suffering from DIC and actively bleeding at the time Dr.

Gunn was caring for her on September 14, 2004.

2. DIC is a blood clotting disorder that compromises the human body’s 

coagulation mechanism that naturally occurs as a defensive response to

bleeding by destroying the clotting factors in the blood.4

3. Shannon’s blood was not coagulating on the 14 because the DIC had

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depleted or destroyed her clotting factors as evidenced by the abnormal

RR. Vol. 8, 160:8-16, 162:7-13, 163:4-15, 164:1-7 (Dr. Brewer’s testimony about how 4

DIC causes the body to consume, not produce, blood clotting factors); RR. Vol. 13, 219:7-10 (Dr.

Alexander, Appellants’ maternal fetal medicine expert, testified that DIC causes the destruction of

coagulation factors in the blood). 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 5

changes in her PT, PTT, FSP, platelet, and fibrinogen lab values on the

14th.

5

4. To fix the coagulation problem, fresh frozen plasma or “FFP” is

administered to the patient to give the human body what it needs

(plasma) to make the coagulation factors that enable the blood to clot

and stop the patient’s blood loss. 

6

5. Shannon “needed” FFP on the 14 because it was “vital” to her

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condition.7

6. When caring for a DIC patient, such as Shannon, the appropriate

standard of medical care requires the treating physician to order and

administer FFP to the patient so that the patient’s blood may coagulate

effectively to stop the patient’s blood loss from the DIC.8

RR. Vol. 12, 230:5-9 (Dr. Aubuchon’s testimony); RR. Vol. 8, 160:8-16, 162:7-13, 163:4- 5

15, 164:1-7 (Dr. Brewer’s testimony). Dr. Brewer relied on objective foundational data (the

abnormal changes in Shannon’s PT, PTT, FSP, and fibrinogen) to explain to the jury how and why

Shannon’s blood had lost the ability to effectively clot. Vol. 8, 160:8-16, 162:7-13, 166:11-15,

184:1-21; see also RR. Vol. 16B, 109-10:McCoy 0273-74 (Plaintiff’s Exhibit 7). Dr. Brewer

explained that Shannon’s PT level changed in response to receiving the FFP ordered by Dr. Jacobs;

however, it never normalized on the 14 . RR. Vol. 8, 184:1-21; see also RR. Vol. 16B, 109- th

10:McCoy 0273-74 (Plaintiff’s Exhibit 7). Also, Shannon’s FSP and fibrinogen levels remained

abnormal on all of the labs drawn on the 14 , further indicating that Shannon’s inability to clot was th

never corrected to normal. RR. Vol. 16B, 109-10:McCoy 0273-74 (Plaintiff’s Exhibit 7). 

RR. 164:12-23, 167:16-24 (Dr. Brewer’s testimony about how and why FFP is given to

6

a DIC patient to replace clotting factors); RR. Vol. 9, 257:4-10 (Dr. Gunn testified that FFP is given

to the patient to replace the clotting factors that are lost from bleeding); RR. Vol. 12, 221:12-15 (Dr.

Aubuchon testified that plasma contains proteins that cause or promote normal coagulation of the

blood); RR. Vol. 13, 26:15-16 (Dr. Aubuchon testified that plasma is “FFP.”). 

RR. Vol. 13, 251:24-253:2 (Dr. Alexander testified that Shannon needed FFP and that it 7

was vital to her condition).

RR. Vol. 9, 257:4-10, 257:19-24 (Dr. Gunn testified that it was her responsibility to 8

administer FFP to Shannon to replace the clotting factors she had lost due to bleeding).
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 6

7. Dr. Gunn was 100% negligent in failing to order or administer any FFP

to Shannon on the 14 .

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None of these facts have been challenged on appeal. The factual finding Appellants

are attempting to re-arrange on appeal (guised in the parlance of a legal sufficiency

challenge) is whether Dr. Gunn’s negligence in thisregard made a difference in terms

of preventing Shannon’s ultimate outcome. The answer is–of course it did–because

the jury had legally sufficient evidence upon which to base this conclusion at trial.

As Dr. Brewer explained to the jury, what Shannon needed to treat her DIC 

(independent of giving her a massive blood transfusion to replace red blood cells) was

a mechanismto make her blood coagulate to stop the blood lossshe was experiencing

on the 14 . That mechanism, which Dr. Gunn was negligent in failing to provide, th 9

was the administration of fresh frozen plasma or “FFP.” Independent of replacing 10

Shannon’s lost blood volume with packed red blood cells, Shannon’s body needed

to receive FFP so that her blood could effectively clot to overcome the blood loss

caused by the DIC. Dr. Brewer explained as follows: 11

Q: And tell us, is the purpose of the FFP to replace those clotting

factors so that you can correct the DIC so the patient stops

bleeding?

A: That's correct.

RR. Vol. 9, 190:17-20 (emphasis added).

RR. Vol. 8, 205:11-206:17, 223:15-225:12, 214:9-215:8, 282:9-15, 282:17-19, 282:25- 9

283:3, 225:1-12, 223:10-12 (Dr. Brewer’s direct exam); RR. Vol. 9, 190:5-20 (Dr. Brewer’s redirect exam); see also RR. Vol. 9, 257:4-10, 257:19-24 (Dr. Gunn’s testimony that Shannon needed

FFP and it was her responsibility to give it to her); RR. Vol. 13, 251:24-253:2 (Dr. Alexander

testified that Shannon needed FFP and that it was vital to her condition).

 Id. at Footnote 9. 10

 See Footnote 9. 11
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 7

Q: Assume with me hypothetically that the defendant wantsto come in here

and say no, I verbally ordered FFP, we don't see any evidence of that in

the nursing notes or the blood bank records or the administration

records, do we?

A: No, we don't and in addition to that, actually there was a lot of stuff

being done. And it was all documented, A, B, C, D, E, F. And the

FFP was the only thing that was missing.

Q: And was FFP, an actual order for FFP that Shannon get the FFP, critical

that morning?

A: It was critical that morning.

RR. Vol. 9, 190:5-16 (emphasis added).

Q: In your opinion, was it critical that Shannon receive the FFP?

A: Absolutely critical. Because you can replace blood until the cows

come home, but if you can’t clot and you have an open wound like

inside the uterus, they’re going to continue to bleed. And so you

12

basically put the blood in and the blood comes out, and without

clotting factors, you cannot control the coagulation disorder.

Q: Did it represent a breach in the standard of care to fail to order the FFP?

A: I believe it did.

Q: Did Shannon need the FFP?

A: She absolutely needed it.

Dr. Brewer explained that when the placenta separates away from the wall of the uterus, 12

it leaves a big area that bleeds like a big scab, and the patient’s clotting factors have to be replaced

so that this area can clot properly. RR. Vol. 8, 223:15-225:12. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 8

Q: Did Shannon continue to lose blood volume because she didn’t get the

FFP?

A: At least partially because she didn’t get the FFP.

RR. Vol. 8, 205:11 - 206:17 (emphasis added).

Q: When you looked at the infusion records[,] blood bank records[,] and

nursing records, wasthere any FFP infusing around 10:00 o’clock in the

morning ...[?]

A: There was not.

Q: They were never ordered were they?

A: They couldn’t have been ordered or the blood bank would have

released them.

Q: According to the medical record, the last unit of FFP was infused

around 3:51 in the morning, and that was the unit ordered –essentially,

ordered by Dr. Jacobs, correct?

A: That’s my understanding.

Q: Now, is there any way to defend Dr. Gunn’s management of Shannon

with a complete absence of FFP, fresh frozen plasma, between the time

she came on board and the time she took Shannon to the operating

room?

A: There is no defense of that in my opinion.

Q: Was FFP absolutely critical to taking care of this lady?

A: It was absolutely critical.

RR. Vol. 8, 214:9 - 215:8.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 9

Dr. Brewer also testified that, if Shannon had been properly resuscitated with

FFP, blood, and platelets, Shannon’s outcome would have been completely different:

A: If she had been adequately resuscitated [with blood, platelets and 

FFP] and she had bled the amount that she bled from 11:00 o'clock

to 2:00 o'clock and had been taken to the operating room, I believe

with reasonable certainty that they would have put her to sleep,

intubated her, taken her uterus out, and she would have woken up

intact, except missing her uterus.

RR. Vol. 8, 282:9-15 (emphasis added).

A: As you look through where all this blood loss occurred, it was all

cumulative. And I think I've stated several times that she didn't get

enough clotting factors. You can pore the blood in, but the blood

just keeps coming out if you can't clot it.

RR. Vol. 8, 282:17-19, 282:25-283:3 (emphasis added).

Q: What does that mean: Fundus is boggy and that when they massaged it,

there was a large amount of bleeding?

A: So the way I read this is, it's kind of what I was describing earlier,

if you don't -- if you don't replace the clotting factors, you put blood

in and blood comes out because she had a raw bed where the

placenta was detached.

RR. Vol. 8, 223:10-22 (emphasis added).

Q: When it got to the point that the uterus began to become unable to

contract back down, is it foreseeable to get even more bleeding when

you've got uncontrolled DIC?

A: That's correct exactly what happens.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 10

Q: Is that exactly the position the defendant put herself in by not taking the

right steps throughout the earlier part of the day?

A: I think not replacing the clotting factors has a lot to do with the

uterine atony.

Q: That means not getting the FFP?

A: That's right.

RR. Vol. 8, 225:1-12 (emphasis added).

Dr. Brewer’s causation testimony sufficiently established that the negligent

failure to provide Shannon with FFP was a substantial factor in bringing about her

brain damage and without this negligence Shannon’s brain damage would not have

occurred. RR. Vol. 8, 205:11-206:17, 223:15-225:12, 214:9-215:8, 282:9-15,

282:17-19, 282:25-283:3, 225:1-12, 223:10-12; RR. Vol. 9, 190:5-20. 

Dr. Brewer established that, if Dr. Gunn had actually ordered and administered

the 4 units of FFP to Shannon that she claimed to have verbally ordered on the 14 ,

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it would have made a difference in preventing Shannon’s brain damage because, in

reasonable medical probability, the FFP administration would have enabled

Shannon’s blood to coagulate and stop the blood loss she had experienced before

1:00 p.m. on the 14 . Id. Shannon never got the FFP that she needed to make her

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blood clot effectively because Dr. Gunn never ordered it. According to Dr. Brewer,

this negligence in failing to order and administer the FFP proximately caused

Shannon’s brain damage because Shannon continued to bleed (because her blood

couldn’t coagulate), resulting in her ultimate cardiovascular de-compensation into

hemorrhagic shock, cardiac arrest and brain damage:

1. Dr. Brewer testified that Shannon’s lack of blood, lack of circulating

blood volume, proximately caused her brain damage because she didn’t

have adequate blood flow and oxygen delivery to her brain. RR.

8:258:16-25; RR. 8:261:9-17.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 11

2. Dr. Brewer testified that it was Dr. Gunn’s responsibility to keep this

fromhappening by ordering the administration of more blood and blood

products, especially FFP, to keep this from happening. RR. 8:261:18-

22. 

3. Dr. Brewer testified that, given Shannon’s profound blood loss, it was

foreseeable that Shannon would go into V-fib. RR. 8:248:14-19; RR.

8:245:1-5; 8:259:8-23.

4. Dr. Brewer testified that, as a result of the V-fib, Shannon’s heart was

not beating properly, resulting in inadequate blood flow and oxygen to

her brain. RR. 8:247:12-248:4. 

5. Dr. Brewer testified that, when Shannon went into V-fib, she was down

for about 11 minutes; and, during CPR, she was down for an additional

20 minutes. RR. 8:248:4-13. 

6. Dr. Brewer testified that the V-fib was basically a cardiac arrest because

Shannon’s heart stopped pumping properly. RR. 8:252:7-10.

7. Dr. Brewer testified that the V-fib resulted in lack of oxygen to

Shannon’s brain. RR. 8:256:8-12.

8. Dr. Brewer testified that Shannon’s lack of blood, lack of circulating

blood volume caused her heart to go into V-fib. RR. 8:258:24-259:1.

9. The arterial blood gases taken from Shannon after she went into V-fib

showed metabolic acidosis, e.g. a pH of 6.9 (7.35-7.40 normal) , a base

excess of -24. RR. 8:252:13-253:14. 

10. Shannon’s blood gases were consistent with someone who has suffered

global brain damage from oxygen deprivation; and, that the EEG study

was consistent with this analysis. 8:259:24-260:2. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 12

11. The evidence of metabolic/lactic acidosis proves that all of Shannon’s

tissues, including her brain, were extremely low in oxygen. RR

8:254:16-19. 

12. Dr. Brewer testified that,in reasonablemedical probability, if Shannon’s

DIC had been correctly (non-negligently) treated by Dr. Gunn,

Shannon’s brain damage would not have occurred. RR. 8:250:13-18.

13. Dr. Brewer testified that her opinion concerning the cause of Shannon’s

brain damage was medically superior to the other possible causes that

she excluded. RR. 8:279:18-280:5.

Dr. Brewer also testified that her causation analysis was confirmed by the

following medical evidence regarding the etiology of Shannon’s brain damage:

1. Dr. Brewer testified that the neurological assessment of Shannon

performed by the treating neurologist at Women’s Hospital confirmed

her causation analysis; and, Dr. Brewer described her causation opinions

in the context of the causation diagram the treating neurologist included

in Shannon’s medical records (RR 8:261:23-262:15; RR. 8:263:6-20;

Plaintiffs’ Exhibit 5);

2. Dr. Brewer testified that her causation analysis was consistent with and

confirmed by the seventeen (17) neurology consults from St. Luke’s

Hospital (the hospital where Shannon wastaken to treat her brain injury)

all of which agreed that Shannon suffered permanent brain damage from

lack of blood flow and oxygen to the brain (RR. 8:263:21-264:16;

Plaintiffs’ Exhibit 8A-8Q);

3. Dr. Brewer testified that her causation analysis was confirmed by

Shannon’s abnormal EEG results that showed evidence of anoxic brain

injury (RR 8:257:19-25);

4. Dr. Brewer testified that her causation analysis was confirmed by

Shannon’s arterial blood gas results, showing evidence of profound
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 13

metabolic acidosis consistent with oxygen deprivation from blood loss

(RR 8:254:16-19); and,

5. Dr. Brewer testified that her causation analysis was confirmed by the

radiology report discussing the head CT results at St. Luke’s Hospital,

showing radiological evidence that Shannon had suffered severe

ischemic brain damage (RR. 8:266:20-23).

Dr. Brewer also testified that her causation analysis was confirmed by ruling

out or excluding other plausible causes for Shannon’s brain damage:

1. Dr. Brewer testified about how and why the CT of the head and

neurology reports from St. Luke’s Hospital ruled out intracranial

bleeding and CVA or stroke as a possible cause for Shannon’s brain

damage (RR. 8:266:13-16); (RR. 8:270:19-271:22);

2. Dr. Brewer testified about how and why she ruled out a pulmonary

embolism as a possible cause for Shannon’s brain damage (RR.

8:271:15-272:2); 

3. Dr. Brewer testified about how and why she ruled out amniotic fluid

embolism as a possible cause for Shannon’s brain damage (RR.

8:272:7-19); 

4. Dr. Brewer testified about how and why she ruled out infection as a

possible cause for Shannon’s brain damage (RR. 8:272:20-273:7); and,

5. Dr. Brewer testified about how and why she ruled out Dr. Alexander’s

uterine atony theory (RR. 8:281:21-283:5), and Dr. Steiner’s microthrombi theory as possible causes for Shannon’s brain damage. RR.

8:284:14-292:14.

In this case, Shannon’s blood clotting system was deactivated by the DIC and

not working anymore. RR. Vol. 8, 163:4-15, 164:1-7. To fix this problem, Dr.

Brewer testified that Shannon needed to receive FFP so that the clotting factors and

cells that enable the blood to coagulate could be replaced, preventing further blood
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 14

loss and permanent injury to Shannon. RR. Vol. 8, 164:12-23, 167:16-24, 205:11-

206:17, 223:15-225:12, 214:9-215:8, 282:9-15, 282:17-19, 282:25-283:3, 225:1-12,

223:10-12; RR. Vol. 9, 190:5-20.

The fact that Shannon needed FFP to enable her blood to clot was neither

contested at trial, nor on appeal. In fact, Dr. Alexander testified that FFP was “vital”

for Shannon and that she “needed” it on the 14 . RR. Vol. 13, 251:24-253:2. Dr. th

Gunn testified that Shannon needed FFP and it was her responsibility to give it to her

on the 14 . RR. Vol. 9, 257:4-10, 257:19-24. As Dr. Gunn pointed out, Shannon’s th

complete inability to coagulate prevented her from receiving an epidural because, if

she bled in the small space around her spinal cord from the insertion of the epidural

needle, should could become paralyzed. RR. Vol. 10, 69:6-16. These facts are also

undisputed on appeal.

While the issue of whether Dr. Gunn ever made a “verbal” or “telephone” order

for FFP was disputed at trial, the jury resolved the conflicting evidence on this issue

in favor of Shannon, finding Dr. Gunn negligent, in part, for failing to order and

administer FFP. The jury also found that Dr. Gunn’s negligence in this regard

proximately caused Shannon’s permanent brain damage. Through the abovereferenced testimony of Dr. Brewer, along with the causation findings documented

by the treating neurologistsin Shannon’s medical records, the jury was provided with

more than a scintilla of evidence to establish that Dr. Gunn’s negligent failure to

order and administer FFP to Shannon proximately caused her brain damage.

Dr. Brewer explained to the jury that the administration of FFP would have, in

reasonable medical probability, made a critical difference in enabling Shannon’s

blood to coagulate effectively thereby stemming and stopping the blood loss and

preventing Shannon’s brain damage. The testimony by Dr. Brewer was based on

reliable foundational data and medical science, not ipse dixit conclusions or

unfounded assumptions.

Dr. Brewer established for the jury that Shannon needed to receive FFP to

make her blood clot and to overcome the DIC. Shannon didn’t receive any FFP on

September 14, 2004 because Dr. Gunn never ordered it, negligently violating the

standard of care in this case. This negligence was a substantial factor in bringing

about Shannon’s brain damage in this case because, in the absence of the FFP,
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 15

Shannon’s blood was unable to coagulate, resulting in Shannon’s continued blood

loss followed by hemodynamic instability, cardiovascular collapse, hypovolemic

shock, cardiac arrest, and hypoxic encephalopathy. At least that’s what the jury

concluded after hearing all the evidence presented by both sides, including Dr.

Brewer’s testimony and the causation findings documented in the medical records by

Shannon’s treating neurologists.

Think about it this way, if the complete failure to administer FFP to Shannon

on the 14 was not a proximate cause of Shannon’s brain damage, why did Appellants

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so ferociously attempt to establish (but couldn’t) that the treating nurses were

allegedly responsible for failing to follow Dr. Gunn’s alleged “telephone order” for

4 units of FFP on the 14 ? Appellants’ no evidence/legal sufficiency point on th 13

causation should be overruled. 

B. The negligent ordering and administration ofLasix caused Shannon

to experience fluid volume loss independent of the blood loss she

was experiencing from the DIC.

Lasix is a diuretic drug that causes the patient to urinate. Urination, in turn, 

results in fluid loss from the body. Dr. Brewer testified that Lasix was

contraindicated for Shannon because she was bleeding, and that the Lasix

administration made Shannon’s condition “worse.” RR. Vol. 8, 218:1-220:2, RR.

Vol. 8,220:18-22, RR. Vol. 8,220:23-222:12, RR. Vol. 8, 270:11-16. Contrary to

Dr. Gunn’s assertion in her letter brief, Dr. Brewer testified that Dr. Gunn was

negligent in giving Shannon Lasix, and that this negligence was a proximate cause

of Shannon’s brain damage. RR. Vol. 8, 218:1-220:2, RR. Vol. 8,220:18-22, RR.

Vol. 8,220:23-222:12, RR. Vol. 8, 270:11-16.

The evidence showed (which the jury believed) that Dr. Gunn never wrote any orders for 13

FFP on the 14 . RR. Vol. 8, 214:9 - 215:8. (Dr. Brewer’s testimony); RR. Vol. 9, 259:16-21, th

261:11-13, 261:14-19 (Dr. Gunn’s testimony); RR. Vol. 13, 253:5-8 (Dr. Alexander’s testimony). 

While Dr. Gunn claimed to have issued a telephone order for FFP, there was no documentation in

any of Shannon’s medical records of any written order or telephone order being made by Dr. Gunn

for fresh frozen plasma. Indeed, the hospital blood bank employee, Ms. Fowler, testified that she

thawed out 2 units of FFP on her own to be “proactive;” however, she did not have any

documentation to prove that the FFP had been ordered byDr. Gunn. RR. Vol. 14, 93:8-94:16, 97:2-

6, 105:18-19. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 16

So why is it that the treating physician shouldn’t do what Dr. Gunn did with

respect to the Lasix administration in a patient situated like Shannon? Dr. Collins,

Shannon’s treating cardiologist, perhaps said it best:

Q: Our bodies, yours, mine, and Shannon's, all have a built in physiologic

response to bleeding; isn't that right?

A: Yes.

Q: And when we begin to bleed and our body senses that we're losing our

volume of fluids, our body compensates by stopping the urine

production, correct?

A: Yes.

Q: Because our body wants to save its fluids and doesn't want to

unnecessarily expel any in the form of urine, correct?

A: Yes.

RR. Vol. 14, 65:25-66:11.

Q: So when you have these patients who have DIC and are bleeding, what

the doctors are trying to do and the nurses are trying to do is to increase

their volume with blood, blood products and IV's, correct?

A: Yes.

Q: Sure. When you have a patient that is bleeding from, for example DIC,

what you see is the patient's body tries to compensate for that loss of

fluid volume by either halting the production of urine or cutting it back

significantly, correct?

A: Yes.

RR. Vol. 14, 65:14-24.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 17

Q: Did you ever order Lasix for Shannon?

A: No, sir.

Q: You understand how Lasix works, correct?

A: Yes.

Q: Would you want to give Lasix to a patient situated like Shannon who

was bleeding with DIC?

A: I wouldn't have given it.

Q: Why is it that you would not have given Lasix to a patient like Shannon

who had DIC and was bleeding?

A: Well, it wouldn't do any good.

RR. Vol. 14, 64:16-25.

Dr. Collins’ testimony corroborated what Dr. Brewer had explained to the jury

in her testimony, e.g., the Lasix administration wouldn’t do any good because it

would cause Shannon to urinate, compounding the blood loss problem by further

depleting her fluid volume and making Shannon’s condition “worse”:

Q: At 10:15, what information did the nurses reveal about Shannon's

condition?

A: At 10:15, they said that -- there was a report of a decrease in urine

output.

Q: Now, what does that tell someone who knows what they're doing who

is managing a patient like Shannon?

A: Part of what urine output tells you in, especially in a young, healthy

patient, is it tells you how well her kidneys are being profused. And
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 18

that's kind of a fancy way of just basically saying: Is there blood

flow to the kidneys? Are they getting enough? Because what

happens is the blood goes through the kidneys and gets filtered out,

and it produces urine as a result of that. So if your urine output is

down, is decreased, that means that your blood flow to the kidney,

particularly in this kind of situation, is probably decreased. So it's

really an important thing to be followed.

Q: Is it a warning sign?

A: It absolutely is a warning sign, particularly in the context of this

patient.

RR. Vol. 8,218:2-25.

Q: How did the defendant respond to this warning sign?

A: She gave her drug called Lasix. And Lasix is a diuretic which means

it makes you urinate more.

Q: Is that the right thing to do?

A: Not in the scenario where her volume was down so far. We use Lasix

for fluid overload; in other words, too much fluid, we need to get rid

of some water. We use Lasix for people with congestive heart

failure, where there is too much fluid in their heart. In the context

of bleeding, it's contraindicated.

Q: Did ordering the Lasix make it worse for Shannon?

A: Probably.

Q: Was the Lasix exactly what you didn't want to order?

A: It was one of the things you didn't want to order.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 19

Q: What did it tell you about the defendant's understanding of what she was

doing when she ordered Lasix around 10:15 in the morning when the

nurses told her the urinary output was down?

A: Well, the way I looked at that is she didn't really understand what

was happening to the patient.

RR. Vol. 8,219:1-220:2.

Q: Was it negligent of the defendant to order Lasix that morning, failing to

act reasonably and prudent?

A: It was failing to act reasonably and prudently, yes.

RR. Vol. 8,220:18-22.

Q: Now, at around 10:50 in the morning, what, in fact, was related to the

defendant from the nurses?

A: 10:50 phone report: Urinary output of 35 in 1 the last hour. That

was after Lasix. And how I interpret that is if she had had too much

fluid, she would have made a lot of urine. But it says to me that, in

fact, she was fluid low; in other words, she didn't have enough fluid

in her veins to actually increase her urine output.

Q: Let's back up. There isthis dose of Lasix given that issupposed to cause

someone to make a lot of urine, correct? Yet, after the dose was given,

the nurses called up and reported that there was only, what?

A: 35 Mls.

Q: 35 MLs. That's?

A: It's like that.
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 20

Q: A third of a cup?

A: (The witness nods.)

Q: What should that tell a physician who knows what they're doing when

they give a dosage of Lasix like that and get a third of Dixie cup of urine

afterward?

A: I think it tells a reasonable physician that that's not the appropriate

treatment, that that's not going to fix the problem.

Q: But what did the defendant do in response to that?

A: Eventually, she gave her a second dose.

Q: Was it negligent to give the second dose of Lasix; that is, failing to act

reasonably and prudently?

A: I believe it was.

Q: Is that the opposite of what Shannon needed?

A: That is the opposite of what Shannon needed.

Q: Is there anyway to defend giving these two doses of Lasix?

A: I think the only defense of that is she didn't understand what was

going, what was happening with the patient.

RR. Vol. 8,220:23-222:12.

After being provided with the definition of proximate cause, Dr. Brewer 

testified that the negligence of Dr. Gunn, including the Lasix administration,

proximately caused Shannon’s brain damage:
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 21

Q: And was the negligence of these things we've outlined, was that a

proximate cause of what we see here?

A: I believe it is.

Q: Or the proximate cause?

A: It is the proximate cause, yes.

RR. Vol. 8, 270:11-16.

In sum, Dr. Brewer’s testimony concerning the negligent Lasix administration

and how the administration of a diuretic to a bleeding patient making a third of a

Dixie cup of urine was causally linked to Shannon’s brain damage in this case was

legally sufficient. Appellants’ no evidence/legal sufficiency point on causation

should be overruled. 

III. The letter brief points raised by Dr. Gunn do not establish that Dr.

Brewer’s causation testimony was legally insufficient.

A. The blood loss “re-calculations” performed by Dr. Gunn in her

letter brief do not prove that Dr. Brewer’s causation testimony was

legally insufficient. 

The fallacy of Dr. Gunn’s attack on Dr. Brewer’s blood loss analysis by

attempting to re-calculate it on appeal is that Dr. Gunn told the jury that, if someone

wanted to calculate Shannon’s blood loss on the 14 , they needed to ask Dr. Brewer,

th

not her. RR. Vol. 9, 277:4-11. Dr. Gunn told the jury thatshe had no basis to dispute

the blood loss calculations performed by Dr. Brewer; and, that, even though she sat

in the courtroomand watched Dr. Brewer calculate Shannon’s blood lossfor the jury,

she never went back to re-calculate them:

Q: Do you agree or disagree with Dr. Brewer that around 8:00 o'clock in

the morning that Shannon had lost 25 percent of her blood volume, or

you just don't have an opinion?
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 22

A: I don't have an opinion.

Q: When it comes to the hemoglobin that came back at 7.5, I believe, that

afternoon, Dr. Brewer made the adjustments and calculations and said

at that point Shannon was down 22 percent in her blood volume. Do you

agree with that, disagree or just not have an opinion?

A: I don't have an opinion.

Q: And then at around 1:00 o'clock -- excuse me. I misspoke about the

hemoglobin. This came back at 1:00 o'clock, but she did the calculations

of input and output and around 11:00, she said 22 percent?

A: No opinion.

Q: So then around a little after 1:00 o'clock, we see a hemoglobin of 7.5,

but when you allow for the bleeding and what wasreplaced, Dr. Brewer

said 33 to 44 percent of Shannon's blood volume was gone. Do you

agree with those calculations, disagree with them, or do you just not

have an opinion?

A: I don't have an opinion.

Q: Do you believe that if you're going to undertake the serious job of

managing a patient that you know has DIC that part of your job is to

perform calculations to know where she is in terms of her blood

volume?

A: Yes.

Q: Yet, when we look at this chart, we don't see any calculations

whatsoever, do we?
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 23

A: My calculations were not part of the medical chart, no.

14

RR. Vol. 10:151:7-152:13.

Q: And have you redone those calculations to give us opinions as to where

you thought Shannon was at 8:00 o'clock in the morning or 11:00 in the

morning or 1:00 in the afternoon?

A: I've not redone those calculations, no.

RR. Vol. 10:152:14-18.15

How can Appellants credibly argue on appeal that Dr. Brewer’s blood loss

calculations are ipse dixit conclusions with no factual basis whatsoever, when Dr.

Gunn herself didn’t disagree with them at trial, didn’t re-calculate them for the jury

to demonstrate their alleged inaccuracy, and told the jury that, if they wanted to know

how much blood Shannon lost, they needed to ask Dr. Brewer? Dr. Aubuchon, the

defense transfusion medicine expert, never disputed the blood loss calculations

performed for the jury by Dr. Brewer. RR. Vol. 12, 53:3-5. Neither did Dr.

Alexander, the defense maternal fetal medicine expert. RR. Vol. 13, 240:4-10. On

cross-examination, Dr. Brewer offered to re-calculate the blood loss for defense

counsel by going back through the input and output records (“I’s and O’s”), but

defense counsel refused. RR. Vol. 9, 219:9-12. So, at the end of the day, the jury was

left with the uncontested evidence provided by Dr. Brewer about Shannon’s blood

loss. Dr. Gunn’s letter brief on this issue should be overruled. 

Dr. Gunn testified that she performed blood loss calculations similar those which Dr. 14

Brewer performed in front of the jury at the time she was caring for Shannon, but she never produced

them, or made them a part of the medical records. RR. Vol. 9, 277:13-18; Vol. 10, 34:16-24.

Neither Dr. Aubuchon, nor Dr. Alexander, disputed the blood loss calculations performed 15

for the jury by Dr. Brewer. RR. Vol. 12, 53:3-5; RR. Vol. 13, 240:4-10. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 24

B. Dr. Brewer’s blood loss calculations were supported by the reliable

foundational data contained in Shannon’s medical records. 

The point of the blood loss analysis performed by Dr. Brewer was to show the

jury that Dr. Gunn had plenty of warning signs to tell her what was going on with

Shannon and that she needed to stop Shannon’s bleeding by doing something

different with respect to her treatment of Shannon, including giving Shannon FFP

to enable her blood to clot effectively and to not make her fluid volume loss and

hypovolemia worse by administering a diuretic. While Dr. Gunn alleges on appeal 16

that Dr. Brewer’s blood loss calculations are “unsupported estimates,” the reality of

what Dr. Brewer did to establish this point for the jury is anchored in the reliable,

objective foundational data contained in the medical records.

This data included Shannon’s total blood volume on admission, changes in 17

Shannon’s lab values (e.g., her hemoglobin, hematocrit, platelet, PT, PTT, FSP, and

18

fibrinogen levels), Shannon’s vital signs (e.g., age, weight, pregnancy status, heart

rate, breathing rate, and blood pressure), Shannon’s fluid intake (e.g., IV fluids, red

blood cells, and platelets), and Shannon’s fluid output (e.g., blood loss and urinary

output). RR. Vol. 8 8:187:22-191:3, 191:20-192:10, 193:7-194:8, 198:11-199:3,

199:11-200:22, 201:4-7, 203:13-25, 210:18-213:1, 213:4-18, 218:2-220:2, 220:23-

222:12, 248:20-249:6; RR. Vol. 9, 196:14-25, RR. Vol. 9, 197:1-17, RR. Vol. 9,

207:7-208:15;see also RR.Vol. 16B109-111:McCoy 0273-275 (Plaintiffs’ Exhibit

7).

Dr. Brewer calculated that Shannon’s total blood volume was approximately

6.7 liters of blood (18 units) when she arrived at the hospital. RR. Vol. 8, 187:4-21;

RR. Vol. 9, 197:13-17, 207:7-208:15. Appellants never disputed this testimony at

trial. Dr. Brewer testified that, according to the changes in Shannon’s lab results

concerning her hemoglobin, platelet, FSP, and fibrinogen levels, as well as the fluid

input and output data contained medical records, Shannon lost approximately 1,400

Dr. Gunn testified that the term “hypovolemia” means that the patient’s “circulatory 16

system did not have enough fluid and blood to support bodily functions.” RR. Vol. 10, 92:12-17. 

 RR. Vol. 9, 197:13-17, 207:7-208:15.

17

 RR. Vol. 9, 196:14-25. 18
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 25

mL of blood (1.4 liters/4-5 units) before the delivery of her daughter. RR. Vol. 9,

196:14-25. Dr. Brewer testified that, according to this same foundational data,

Shannon lost another 1,600 mL of blood in the ICU, totaling approximately 3,000 mL

of blood loss. RR. Vol. 9, 197:1-12. Dr. Brewer’s testimony about Shannon’s blood

loss was based on Shannon’s total estimated blood volume, the changes in Shannon’s

lab values, as well as the information concerning Shannon’s fluid input and output

documented in the medical records. RR. Vol. 8 8:187:22-191:3, 191:20-192:10,

193:7-194:8, 198:11-199:3, 199:11-200:22, 201:4-7, 203:13-25, 210:18-213:1,

213:4-18, 218:2-220:2, 220:23-222:12, 248:20-249:6; RR. Vol. 9, 196:14-25, RR.

Vol. 9, 197:1-17, RR. Vol. 9, 207:7-208:15; see also RR. Vol. 16B109-111:McCoy

0273-275 (Plaintiffs’ Exhibit 7).

All of this data was analyzed and synthesized for the jury by Dr. Brewer to

provide them with an understanding about how and why Shannon was bleeding, how

much blood Shannon had lost and was continuing to loose before 1:00 p.m. (despite

being transfused with blood and platelets), what Shannon’s body was doing

physiologically to compensate for the blood loss(e.g., increased heart rate, increased

breathing rate, drop in urine output, drop in blood pressure), and why Shannon

needed to receive FFP to stop her blood loss and prevent the monumental disaster 

that Dr. Gunn caused by her own negligence. Id.

The medical records show that Shannon was administered 3,400 mL of blood

and blood productsin the operating room (15 units of packed red blood cells, 16 units

of FFP, and 8 units of platelets) to replace the clotting factors and blood volume that

Dr. Gunn negligently allowed Shannon to lose on the 14 . RR. 16A, 131:McCoy

th

0121, 137:McCoy 0127 (Plaintiff’s Exhibit 7). If Dr. Brewer’s blood loss

calculations for the jury were really “unsupported estimates,” why is it that her

estimation of Shannon’s blood loss before 2:10 p.m. on the 14 (3,000 mL) isso close

th

to the documented amount of blood volume replaced in the operating room (3,400

mL)? RR. 16A, 131:McCoy 0121, 137:McCoy 0127 (Plaintiff’s Exhibit 7). Dr.

Brewer’s blood loss calculations were supported by the reliable foundational data

contained in Shannon’s medical records, and this letter brief point should be

overruled. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 26

C. Dr. Gunn’s argument about the relationship between Shannon’s

bleeding and uterine atony is supported by the medical records.

Dr.Brewertestified that Shannon’s uterine atony had to be analyzed in context. 

RR. Vol. 8, 281:21-283:5. Dr. Brewer testified that the uterine atony was a byproduct of the massive blood loss Shannon experienced prior to 1:00 p.m. on the 14 . 

th

RR. Vol. 8, 281:21-283:5. Dr. Brewer testified that, if Shannon had been adequately

resuscitated, but experienced the same amount of bleeding she did between 1:00 p.m.

to 2:00 p.m. on the 14 , she would have come out of the surgery “intact,” indicating

th

that uterine atony was not the cause of Shannon’s brain damage. RR. Vol. 8, 281:21-

283:5. Dr. Brewer also testified that her opinions regarding Shannon’s uterine atony

were based, in part, on her experience as qualified expert in caring for these patients,

as well asthe evidence concerning Shannon’s enormous blood loss prior to 1:00 p.m.;

and, the fact that none of Shannon’s clotting factors were replaced through the

administration of FFP. RR. Vol. 8, 249:11-250:25, 225:6-12, 281:21-283:5. Dr.

Brewer’s testimony concerning the exclusion of uterine atony as a possible cause for

Shannon’s outcome was supported by the reliable foundational data contained in

Shannon’s medical records. This letter brief point should be overruled.

D. Dr. Brewer’s testimony about Shannon’s internal bleeding was

based on the evidence contained in the medical records.

While Dr. Brewer said that Shannon had blood “pouring out,” she never said

that all of Shannon’s blood loss came out of her vagina. RR. Vol. 8, 249:2-6. Dr.

Brewer testified that Shannon had visible blood loss from the vagina , as well as 19

internal bleeding into the wall of the uterus. RR. Vol. 8, 223:10-224:18, 225:1-20. 

This testimony is based on the documented findings contained in the medicalrecords.

Dr. Brewer testified that, according to the medical records, Shannon had a large amount 19

of bleeding at 12:00 p.m. on the 14 , and expelled a large amount of blood from the vagina at 12:45 th

p.m. on the 14 . RR. Vol. 8, 223:10-14, 229:2-6. According to Dr. Gunn’s discharge summary,

th

Shannon had approximately 800 to 1,000 cc’s of blood and clots at the perineum at 1:28 p.m. RR.

Vol. 16A, 42:McCoy 0032 (Plaintiff’s Exhibit 7). The intensive medicine physician called by Dr.

Gunn, Nancy J. Esper, M.D., documented in her note that Shannon’s vaginal bleeding was

“uncontrollable” on the 14 and that the same level of blood loss was present at the time of surgery. 

th

RR. Vol. 16A, 85:McCoy 0075 (Plaintiff’s Exhibit 7). 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 27

The medical records showed (and Dr. Gunn agreed in her testimony) that the

ultrasound performed at 5:25 a.m. showed retro-placental bleeding (bleeding behind

the placenta), and that all the blood vessels in the uterus were completely filled with

clotted blood. RR. Vol. 10, 67:16-22, 120:11-19. Dr. Gunn documented in her

discharge summary that Shannon’s uterus was “engorged” with blood “throughout

the muscle layers[,]” and that the vaginal vault was “filled” with blood clots. RR. 

16A, 42-43:McCoy 0032-33 (Plaintiff’s Exhibit 7). Dr. Gunn documented in her

operative report from the hysterectomy surgery that Shannon had “obvious bleeding

into the uterine musculature.” RR. 16A, 131:McCoy 0121 (Plaintiff’s Exhibit 7). 

Dr. Gunn also documented in her operative report that “[t]he ICU bed had blood

throughout from the head of the bed to the foot.” RR. 16A, 132:McCoy 0122

(Plaintiff’s Exhibit 7). If Shannon wasn’t really losing that much blood, and her

bleeding was really improving, as Dr. Gunn claims in her letter brief, why was it

necessary to give Shannon 3,400 mL of blood and blood products in the operating

room? Dr. Brewer’s testimony about Shannon’s internal blood loss is supported by

the reliable foundational data contained in Shannon’s medical records. This letter

brief point should be overruled. 

E. The lab results do not negate Dr. Brewer’s testimony about

Shannon’s blood loss.

Dr. Gunn claims that Shannon’s lab results negate Dr. Brewer’s testimony that

Shannon continued to bleed after delivery, but this point makes no sense in light of

the documented facts contained in the medical records. Shannon’s hemoglobin level 

on the first set of labs ordered by Dr. Jacobs was abnormally low at 8.6 (10.2-14.9

normal). RR. Vol. 16B, 111:McCoy 0275 (Plaintiff’s Exhibit 7). At 7:20 a.m. on

the 14 , Shannon’s hemoglobin level dropped from8.6 to 5.5–a critically low level. th 20

RR. Vol. 16B, 111:McCoy 0275 (Plaintiff’s Exhibit 7).

According to Shannon’s lab records, a hemoglobin of 6.90 is a critically low level; 20

accordingly, a 5.5 level and a 4.0 level are obviously critically low. RR. Vol. 16B, 111:McCoy

00275 (Plaintiff’s Exhibit 7). The lab results are highlighted and attached to this response along

with Dr. Esper’s documentation that Shannon’s hemoglobin level was 4.0 before she was taken to

surgery. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 28

Importantly, while the lab results show that Shannon’s hemoglobin level was

7.8 at 1:15 p.m., Dr. Esper documented in her note that, according to a “stat” blood

21

draw in the ICU, Shannon’s hemoglobin level had dropped to 4.0 at the time she

was taken to the operating room at 2:10 p.m. RR. Vol. 16A, 88:McCoy 0078

(Plaintiff’s Exhibit 7) (emphasis added). The other lab values discussed by Dr.

Brewer were equally consistent with her causation opinions concerning Shannon’s

blood loss. RR. Vol. 16B, 109-10:McCoy 00273-74 (Plaintiff’s Exhibit 7). 

Specifically, Shannon’s PT, FSP, and fibrinogen levels (indicators of

Shannon’s blood clotting ability) never normalized between the first lab results

obtained at 10:15 p.m. on the 13 and the last labs that were drawn at 1:16 p.m. on

th

the 14 before Shannon was taken to the operating room. RR. Vol. 16B, 109-

th

10:McCoy 00273-74 (Plaintiff’s Exhibit 7). Shannon’s PT level went up from 17.2

(10.8-13.5 normal) at 7:27 a.m. on the 14 to 18.2 at 1:16 p.m., indicating that th

Shannon’s blood clotting mechanism was never corrected to normal before she was

taken to the operating room. RR. Vol. 16B, 109-10:McCoy 00273-74 (Plaintiff’s

Exhibit 7). Shannon’s FSP and fibrinogen levels never improved and were always

abnormal from7:27 a.m. to 1:16 p.m., further indicating that Shannon’s ability to clot

never changed from abnormal to normal before she was taken to the operating room. 

RR. Vol. 16B, 109-10:McCoy 00273-74 (Plaintiff’s Exhibit 7). Shannon’s clotting

factors were so abnormal she was medically deprived of epidural anesthesia during

delivery so that she would avoid the probable risk of becoming paralyzed. RR. Vol.

8, 180:3-22. Not only did Dr. Brewer discuss thisfact with the jury, so did Dr. Gunn. 

RR. Vol. 10, 69:6-16. None of these lab values negate Dr. Brewer’s opinions

concerning Shannon’s blood loss or causation. This letter brief point should be

overruled. 

Dr. Gunn relies on this hemoglobin value to argue that Shannon’s condition was 21

“improving;” this argument ignores the fact that Shannon’s hemoglobin level never normalized. The

hemoglobin level of 7.8 is abnormally low and Dr. Brewer accounted for this rise in hemoglobin in

her causation analysis by explaining to the jury that Shannon’s hemoglobin level went up because

of the packed red blood cells that were administered to her prior to 1:15 p.m. 
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 29

F. Dr. Brewer’s causation testimony was not based on ipse dixit

assumptions.

Ipse dixit means: “I say it is so; therefore, so it is.” According to Dr. Gunn,

Dr. Brewer expected the jury to accept her causation opinions as valid simply because

she said they were. Seriously, is that really what Dr. Brewer did? The totality of Dr.

Brewer’s causation analysis showsthat this characterization is way off base, and that

her testimony was legally sufficient to link-up Dr. Gunn’s negligence to Shannon’s

brain damage.

Abraham Lincoln was once similarly accused of such high-handedness. In

response, this is what he had to say:

I want to say that, in the first place, I have made no charge of any sort

upon my ipse dixit. I have only arrayed the evidence tending to prove

it, and presented it to the understanding of others, saying what I think it

proves, but giving you the means of judging whether it proves it or not. 

This is precisely what I have done. I have not placed it upon my ipse

dixit at all.

22

Dr. Brewer’s testimony on causation was detailed and comprehensive, not ipse dixit. 

Dr. Gunn cites to the Pollock and Wilson opinions to assert her argument, but these

decisions are unavailing. A cursory comparison of the expert causation opinions in

Pollock and those expressed by Dr. Brewer reveals that Dr. Brewer’s causation

analysis passes muster. When it comes to Wilson, Dr. Brewer’s causation testimony

falls squarely within the legal sufficiency requirements set forth in this case. Dr.

Gunn’s letter brief point on this issue should be overruled.

Abraham Lincoln, Political Debates Between Lincoln and Douglas 38-39 (Cleveland: 22

Burrows Bros. Co. 1897).
Mr. Christopher A. Prine, Clerk

March 4, 2015

Page 30

G. The summary judgment was properly granted because Appellants

failed to introduce any evidence to establish a fact issue on nursing

negligence.

As Justice Boyce’s comments at oral argument made clear, Appellants

submitted no evidence in response to the McCoy family’s motion for summary

judgment to establish a fact issue on whether anything the nurses did, or failed to do,

in this case proximately caused Shannon’s brain damage. Dr. Gunn’s letter briefing

on this point should be overruled.

In closing, one final thought is worth mentioning here. If Dr. Gunn had

devoted as much time to caring for Shannon on September 14, 2004 as she has in

attempting to explain in her appellate briefing why the jury and Dr. Brewer got it

wrong on the issue of proximate cause, imagine what would have happened to

Shannon? The McCoy family respectfully requests that the pointsraised by Dr. Gunn

in her letter briefing be overruled, and the trial court’s judgment should be affirmed.

Very truly yours,

J. Todd Trombley

JTT:peb

Enclosures

cc: Mr. Jim Hund Via Facsimile No. (806) 783-8710

and eService

Mr. Jeffery T. Nobles Via Facsimile No. (713) 960-1527

and eService

Ms. Barbara Hilburn Via Facsimile No. (713) 224-5358

and eService

Mr. Michael C. Feehan Via Facsimile No. (713) 652-6000

and eService
EXHIBIT 7
10122104 

0620 

MEDICAL DIRECTOR: Bradley Wertman. H.D. 

The Woman's Hospital of Texas Laborator-Y 

7800 Fannin, Houston. TX 77054 

3 

*** INPATIENT DISCHARGE SUMMARY REPORT *** 

Patient: MCCOY.SHANNON IF00019169487 (Continued) 

I .. *** COAGULATlDN *** (continued) 

Date -------------------------------------SEP/14104------------------------------------- Time 2330 1810 1502 1316 0727 0727 Reference Units 

F'SP 1~5<20 * ~5<20"' E2o<ab> * ~20 * I r20(ac) * I (<5) ug/!IL 

RVVT PATIENT I I I I ~ II1.4Cadl If I (0 .0-1.1) RATIO 

DVVTC I I . I I 10.9<ael I I (0.8-1.2} RATIO 

STACLOT LA I ~71Cahl H · I I j5.5(ad) I I (0.0-8.0) RATIO 

0-DiMER ll775(ag) H I I I I (<248) ng/ml 

F'AC V MUT I I I I I (ail I 

mn TiiR()otBI N 3 I I I I II6H ad) L I (89-120} l 

PROTEIN C FUNC I I I I li49(ad) L · I (60-140) s 

PROT C ANTIGENC I I .. .. I I 163<ad) . I 

PROTEIN S TOTAL I I I I 1142(adJ L I (70-140) s .PROTEIN S FREE . I I . I I ll25<adl L I <58-113} l 

ACA IGG l I . I I 16 .1Cadl I I. (<•15) GPL . Ad. IGA I : I I . I 11.5<ad) I I (<-12} APL 

ACA IGM I I I I 16.6Cadl I I (<•12.5) MPL 

Date SEP/14/04 SEP/13/04 

Time 0020 2215 Reference Units 

Pt PATIENT 1120.0 ( akl '*li 17 .3<all H t I I I Cl() B-13 Sl SECONDS 

PTI 1139 . 8< am> tt 35. 7Canl H I I I I (23 .7-34 2) SECONDS 

F!BRINOGEN · . lll93Cao l L I I I I (351-773) rrg/dl FSP I 11>20 * I I I I (<5) ug/ITL 

R-TIME. . 17.3 I I I· .. I I I K-TIME 17.9 I I I I I I 

NOTES: (abl RESULTS CALLED TO FELICIA AT 1539 09/14/04 BY F.LAB .IZD. 

EXT 3203 

<acl ABOUT THE COAG PANEL 

Cad) TESTING PERFORMED Ai SPRING BRANCH MEDICAL CENTER LABORATORY 

8850 LONG POINT ROAD. HOUSTON. TX 77055 

<ae) See (a f). (ad) 

<afl This final result is expressed as the normalized ratio: 

Ratio greater than 2.0 LA is strongly present Ratio between 1.5 and 2.0 LA is moderately present Ratio between 1.2 and 1.5 LA is weakly present (ag) RESULTS CALLED TO WYNDE 

READ BACK & CONFIRMED? YES 

BY F.LAB.KAI 09/15/04 0431 

See also (ad) 

(ah) RESULTS CALLED TO ELEANOR READ BACK & CONFIRMED? Y 

BY F.LAB.ELH 09/14/04 2144 

See also (ad) (ai) NO MATION 

See also (aj). Cad} 

(ajl Testing perfonned at: Spring Branch Medical Center 

8850 Longpoint 

Houston. TX 77055 

(ak) RESULTS VERIFIED BY REPEAT ANALYSIS 

RESULTS CALLED TO AMBER 

"c•n I>Arv .... ,. ...... u .. ,. .. 

v -~- ·~ 89114/64 8118 -- · -- Cal) RESULTS VERIFIED BY REPEAT ANALYSIS 

Cam) RESULTS VERIFIED BY REPEAT ANALYSIS/ 

RESULTS CALLED TO AMBER 

READ BACK & C~FIRMED? Y 

BY F.LAB.YMC 09/14/04 0118 

(an) RESULTS VERIFIED BY REPEAT ANALYSIS 

Cao) RESULTS VERIFIED BY REPEAT ANALYSIS 

Patient: MCCOY,SHANNON Age/Sex: 35/F Acct#f00019169487 Un1t#f000435351 

Miles-l\,1cCoy 000273 

I 

-
10/22/04 

0620 

C) The Woman's Hospital of Texas Laboratory 

7800 Fannin. Houston, TX 77054 

2 

MEDICAL DIRE~TOR: Bradley Wertman. H.D. 

*** INPATIENT DISCHARGE SUMMARY REPORT *** 

Patient: MCCOY .SHA!iNON .. #F00019169487 (Continued} : 

I .. *** HEMATOLOJY *** ~cont inued2 I 

Date ----------------SEP/14104---------------- SEP/13/04 

Time 1316 0727 0017 2215 Reference Units 

··Mrnc ' 1 133.8 

ko6<ol L 

lijl. 7 l I 1 1 <32-35} !1T1/dl 

RD.ol I ~H pa.s H I I (11 .8-14.8) s 

PLt 1189 *l 150 I I I <135-380) Klrnn3 

MPV I 17.8 I J8.4 I I I <7.0-10.1) fL 

NEUT t ' I. I I 1~1.1 H I I {51.5-79.7} l 

LYMPH S I I I 1 .o l I I 04-40) l 

~t I. I I {4.~ I I I {4.0-10.2} l 

EOS t I I . I 10.1 I I (0-4.1) s 

BASO f I I - I IKl. 0 L I l (0.1-0.7) % 

NEUT t I I I 121.7 H I I (2.5-8.6) K/rrm3 · LYMPH# I .. I . . I ~-9 l I I 0.1-3.6) K/111113 

liJNO# l I. ·I l.lH I I (Q 3-0.9) K/Tm'J 

. ·· EOS # · I . I . •,• • I D.(}Q . t I I " (0.0-0.4} I 

BASO 11 I I I 10.0 I I I (0.0-0.0) K/rrm3 

MAN DIFF NEEDED I •. 

' JYES I I I I I 

RSC MORPH REV I I <p> I l<ql I I I <NORMAL> 

PlT liJRPH REV I l<r) I I (S) I I I (NQRtoW.. l 

CELLS COUNTED I I§ I I I I #CELS . SEGS I I 2 H 1 I I I <55-BO) l 

BAND I I H I I I I (0-5) % 

LYMPH I 15 l l I l I (20-40) :c 

MONOCYTE I 14 I I I I I (Q-8) % 

HYPO 1 12+ l I I I I ANI SO I 11+ . I I I I MICRO I 12+ I I I 

PL T ESTIMATE I ll0£CREASED * I I I I I CADEOl 

I *** COAGULA Tl ON '*- I 

Date ··················-·-······-··-------SEP/14/04------------------------------------- Time 2330 1810 1502 1316 0727 0727 Reference Units 

PT PATIENT 113.5 1114.4 H ll9 .7(t) '*H 118 . 2( U) "H 117 .2(v) H 121. 5{w) *1-i J 00 .8-13 5) SECONDS 

PTI J33 .2 133.2 1!44. 4( X) '*H 32.0 j34.Q(y) !136.3 H I (23.7-34.2) SECONDS 

PT 1:3 MiX I 11214 L . EI l hslCaa2 L 

~12. 9(Z) I I SECS - FIBRINCGEN 11331 l 11118 l ( 351-773) nv;/ ell 

NOTES: (O) RESULTS VERIFIED BY REPEAT ANALYSIS 

(p) RBC HORPH ABNORMAL 

(q) RBC HORPH ABNORMAL 

HYPOCHRC11IA 1 + 

(r} NORMAL PLT MORPH. 

(S) NORI"AL PL T MORPH. 

(t) RESULTS CALLED TO FELICIA 

READ BACK & CONFIRMED? Y 

BY F.LAB.IZD 09/14/04 1539 

(U) RESULTS CALLED TO VICKY 

READ BACK & CONFIRMED? YES 

BY F.LAB.EDA 09/14/04 1422 

(v) INR•2.4 ,\ l"lCC"III TC" UCDTt:CTCn D~ DCI"l!:"AT \Lt. VC"!C" 

(X) RESULTS CALLED TO FELICIA -- .. -- READ BACK & ~FIRMED? Y 

BY F.LAB.IZD 09/14/04 1539 

(y) TESTING PERFORMED AT SPRING BRANCH MEDICAL CENTER LABORATORY 

B850 LONG POINT ROAD. HOUSTON. TX 77055 

(Z) PT MIX 1:1• 11.9 

See also (y) 

Caa) RESULTS CALLED TO SANDY AT 1446 09/14/04 BY F.LAB.EDA. 

Patient: MCCOY,SHANNON Age/Sex: 35/F Acct#F00019169487 Un1tiF000435351 

!vfiles-o\kCoy 000~-::-4 
-

( ~ J .::___) - ..__) _j 

10i22!04 

0620 

MEDICAL DIRECTOR: Bradley Wertman. M.D. 

The Woman's Hospital of Texas laboratory 

7800 Fannin, Houston, TX 77054 

. . *** INPATIENT DISCHARGE Su~Y REPORT **Y 

PATIENT: MCCOY .SHANNON ACCT #: F00019169487 LOC: F.ICU .. U #: FD00435351 

Afi..iSXi 35/F · RCDt: F. IC4 REG: 09/la/04 

REG OR: Gunn. Debra Clark STAl\.IS: DIS IN BED: A DIS: 09/lS/04 

I *** HEW>.TOL<XlY _. 

Date ---------SEP/15/04--------- -----------------------SEP/14/04---·----------------·-- Time 1744 0530 2330 1810 1455 1316 Reference 

. wBC tna.7 H n6A H 112.4 H 115 .4 [}I 6.8 H I (4 .5,11.2) 

RBC [3.64 j3. 71 13 .70 14 .14 D I .36 *l (3.42-5.20) 

HGB !10.7 111.0 110.9 !12.2<al D . 9(b) l [7 .5 DL I (10 . 2-14. 9) 

HCT 13~.9 132.2 iJ2.5 135 .9 D I 0.3 L 122.3 Q l (31 .3-44.8) 

MCV 188 187 188 87 186 I I (81-95) 

MCH 129.4 129.5 129.6 129 .6 129 .1 I I (27-34) 

MCHC 133.6 34.1 j33.8 134.2 133 .8 I I (32-35) 

ROW iil5.1 H 14.5 14.5 i14.8 14.7 I I m.8-14.8J 

PLT 1175 *l 175Ccl *l f74(d) *L 181(e) *L 161 *l I l (135-380} 

MPV )9.8 8.9 8.8 18.4 8.1 I I (7.0-10.1) 

NM% · 1!92 .5 H 185 .6 H 180.9 H 183.9 H 79.5 I I (51.5-79.7) 

LYMPH % 113 .6 L 15,9 l . 19.6 l 10.9 l 15.5 I I ( 14-40) 

i-KJNo t 113 .7 l 8.3 19 .5 19.2 14 . .7 I I (4 0-10.2) 

EOS l 10.1 10.0 jO .O 0.0 10 .3 I (0-4 1) 

BASO i 10.1 0.2 JQ.O L 0.0 L l(l.O l I (0.1-0.7) 

NEUT ff jll7 .3 H 14.0 H no.o H 12.9 H 21.3 H I (2.5-8 .6) 

LYMPH II !10.7 L l.Ol 1.2 1.1 14.2 H · f (1.1-3.6} 

t-()NO # 10.7 11.4 H 1.2H 1.4 H 1.2H I (Q 3-0 .9) · EOS I !0- 00 . !0.00 10.00 10.00 10.10 I I (0.0-0.4} BASO I jO.O . ·. jO.O 10 .0 10.0 jO.O I l (0.0-0 .0) RBC HORPH REV I <n l (g) I I <h> I <n I I (NORMAL) 

PLT t-()RPH REV I <j > I <k > I j(l} I (m) I I (NORHAL> 

Date --------------- -SEP/14/04----·-···------- SEP/13104 

Time 1316 0727 0017 2215 Reference 

lolBC I 129-.7 H 1123 .8 H I I I (4.5-11.2) 

RBC I 12 14 D'*l !3 .67 I I (3.42-5.20) 

H68 I l5.5(n ) O'*L 118 .6 L I I (10 .2-14.9} HCT I ... 116 .3 D'*t. 1127 .2 L I I (Jl.3·4A 8) 

MCV ' I I 6 L 174 l I I (81-95) 

MCH I 125.8 l 123 .4 L I I (27-34) 

NOTES : (a) RESULTS CALLED TO KASSANDRA 

AT 1831 09114/04 BY F.LAB.IZD. 

(b) CRITICAL VALUE CALLED TO TROY RN AT 1457 ON 09/14/04 

BY F .LAB.EOA. 

(C) RESULTS VERIFIED BY REPEAT ANALYSIS 

NOTIFICATION OF RESULTS BROADCAST TO ELENOIR BY F.LAB.TTT 

AT 0609. 09/15/04. 

(d) NOTIFICATION OF RESULTS BROADCAST TO SELENA BY F.LAB.KAI 

AT 0210. 09/15/04. 

(e) RESULTS CALLED TO KASSANDRA 

AT 1830 09/14/04 BY F.LAB .IZO. 

(f) RBC MORPH NORMAL 

(g) RBC t-'IJRPH NORMAL 

(h) RBC MORPH NORMAL 

(i) RBC HORPH NORMAL 

""'' no T U'\nn' 

(lc) NORMAL PLT HORPH. ... .. ·- - - -- {1) NORMAL PLT MORPH. 

Sl. DECREASE 

<ml NORMAL PLT MORPH. 

<nl RESULTS CALLED TO MAGGIE 

READ BACK & CONFIRMED? YES 

BY F.LAB .EDA 09/14/04 0850 

RESULTS VERIFIED BY REPEAT ANALYSIS 

Patient: MCCOY,SHANNON Age-/Sex: 35/F Acct#F00019169487 Un1tlf000435351 

Units 

Klnm3 

M/rrm3 

gm/L 

1 

fL 

P9 

gm/dl 

1 

K/mn3 

fL 

I 

l 

% 

% 

% 

K/nm3 

K/rrm3 

K/flll'J 

I 

Klnm3 

Units 

K/nm3 

M/ flll'J 

gm/L 

% 

f1. 

pg 

-

I 

-- -

;\tiles-McCoy 00027.5 
f 

( d. 

. I ... _., A.~" v ; .i 

PATIENT NAME: MCCOY, SHANNON 

( ., . ... ·., ~· ; 1 

-· 

MR NUMBER: OOOOOOF000435351 

ACCOUNT NUMBER: F00019169487 

'·• 

. ' 

; 

150 later on. EKG was reviewed, no acute changes were noted, but 

there was diffuse nonspecific ST-T changes. 

ASSESSMENT: 

1. Seizure activity. could be multifactorial, possibly eclampsia related, versus secondary to hypocalcemia versus secondary to 

anoxic seizure secondary to anoxic encephalopathy since the 

patient had cardiopulmonary resuscitation for ten minutes, ana 

she was hypotensive prior to that, and he~ hemoglobin was 4 at 

the time of admissi-on to the operating room for a dilatation and 

curettage and hysterectomy. 2. Status post disseminated intravascular coagulation, secondary 

to fetal demise, secondary to placenta abruptio. 3. Mild renal insufficiency, secondary mostly to hypovolemia. 4. Hypocalcemia, secondary to Valium and blood products replacement. 

5. Hypertension, possibly preeclampsia related. 

6. Hyperglycemia, possibly related to intravenous fluid 

replacement with OS half normal saline versus gestational diabetes. 

7. Elevated troponin level, most likely related to 

cardiopulmonary resuscitation rather than an myocardial infarction in the absence of signs of myocardial infarction on 

the electrocardiogram. 

PLANS: 

1. The patient will be kept on magnesium loading and intravenous 

infusion, fosphenytoin loading dose and maintenance therapy, Versed or Ativan p.r.n. Close monitoring of electrolytes with 

replacement will be done and also close monitoring of DIC 

profile. Parameters of blood pressure will be given and possibly beta blockers or hydralazine will be started for a systolic blood 

pressure more than 170 or diastolic blood pressure more than 110. 

STAT neurology consult was ordered and requested for possible EEG 

and further management. 2. The case was discussed in very great details with Dr. Gunn 

and Dr Shearer-Poor, they agreed with the above plan, also the 

family was informed about the condition and the progress, and all 

their questions were answered. We spoke with, Dr. Shearer-Poor 

and I, with the husband, the brother, the sisters, and the 

father, and they all seemed to be understanding the situation. 

The patient's poor prognosis was also explained to them and 

unstable status at this time. 

Page 4 of 5 

Chart Copy 

Miles-McCoy 000078