Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 1 of 6
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`EXHIBIT C1
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`EXHIBIT C1
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`Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 2 of 6
`Filed: 11/5/2021 11:43 AM
`JOHN D. KINARD - District Clerk
`Galveston County, Texas
`Envelope No. 58896299
`By: Shailja Dixit
`11/5/2021 2:05 PM
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`21-CV-1995
`CAUSE NO. _____
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`APRIL KLUGE, INIDIVIDUALLY,
`AND AS PERSONAL REPRESENTATIVE
`OF THE ESTATE OF MARY LOU TANNER,
`JASON TANNER, AND GERALD TANNER,
`Plaintiffs,
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`VS.
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`THE UNIVERSITY OF TEXAS
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`MEDICAL BRANCH AT GALVESTON,
`Defendant.
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` IN THE DISTRICT COURT OF
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` GALVESTON COUNTY, TEXAS
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`Galveston County - 10th District Court
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` ____ JUDICIAL DISTRICT
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`PLAINTIFFS’ ORIGINAL PETITION,
`JURY DEMAND AND REQUEST FOR DISCLOSURE
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`COME NOW, Plaintiffs, April Kluge, Individually and as Personal Representative of the
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`Estate of Mary Lou Tanner, Jason Tanner, and Gerald Tanner, who bring this cause of action
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`against Defendant, The University of Texas Medical Branch at Galveston (“UTMB Galveston”)
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`and would respectfully show unto the Court as follows:
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`DISCOVERY CONTROL PLAN
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`This is a civil action brought on behalf of Plaintiffs. This action seeks monetary
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`1.
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`relief over $250,000.00 but not more than $1,000,000.00 for the personal injuries and damages
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`caused by the negligence of the Defendants.
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`2.
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`Discovery in this case is to be conducted under level two (2) pursuant to Rule 190.3
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`of the Texas Rules of Civil Procedure.
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`PARTIES
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`Plaintiff, April Kluge, Individually and as Personal Representative of the Estate of
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`3.
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`Mary Lou Tanner is an individual residing in Brazoria County, Texas.
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`4.
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`Plaintiff, Jason Tanner, is an individual residing in Brazoria County, Texas.
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`1
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`Status Conference Date set for 02/03/22
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`Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 3 of 6
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`5.
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`6.
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`Plaintiff, Gerald Tanner, is an individual residing in Brazoria County, Texas.
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`Defendant, University of Texas Medical Branch at Galveston is a healthcare
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`institution, as defined by section 74.001(11) of the Texas Civil Practice and Remedies Code, and
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`may be served with process through General Counsel, Carolee King, 301 University Blvd.,
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`Galveston, Texas 77555, or wherever she may be found.
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`7.
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`Pursuant to TEX. R. CIV. P. 28, Plaintiffs specifically invoke their right to institute
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`this suit against each and every Defendant in all of their partnerships, assumed, or common names,
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`and any other names they have used or that have been used to designate them.
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`JURISDICTION AND VENUE
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`The Court has subject matter jurisdiction and the amount in controversy exceeds
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`8.
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`the minimum jurisdictional limits of the Court.
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`9.
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`Venue is proper in Galveston County, Texas pursuant to TEX. CIV. PRAC. & REM.
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`CODE § 15.002 and 101.102 because all or a substantial part of the cause of action occurred in
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`Galveston County, Texas.
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`FACTUAL BACKGROUND
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`On May 26, 2020, Mary Lou Tanner underwent lumbar surgery at UTMB in
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`Galveston, Texas.
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`11.
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`During the surgery, a faulty fiberoptic cable compromised the surgeon’s visibility
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`as he was operating on L3-4.
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`12.
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`The loss of visibility caused by the faulty fiberoptic cable led to Ms. Tanner
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`sustaining a large dural tear at L3-4.
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`13.
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`As a result of this complication, Ms. Tanner died on November 11, 2020.
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`Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 4 of 6
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`CAUSES OF ACTION
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`Plaintiffs bring these claims and request for damages pursuant to Chapter 71 of the
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`T.C.P.R. Code, Texas Wrongful Death and Survival Statute, Chapter 74 of the T.C.P.C. and
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`Chapter 41 of the T.C.P.R. Code and Texas Common Law.
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`15.
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`All conditions precedent have been performed or have occurred.
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`NEGLIGENCE OF DEFENDANT
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`At the trial of this cause, Plaintiffs intend to prove Defendant, UTMB, was
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`16.
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`negligent in the care and treatment of Decedent, Mary Lou Tanner by the following:
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`a.
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`b.
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`c.
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`Failing to have appropriate policies and procedures regarding maintenance
`of equipment required during surgical procedures;
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`Failing to enforce appropriate policies and procedures regarding the
`maintenance of equipment required during surgical procedures; and
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`Failing to ensure that the fiber optic cable at issue was in a safe and proper
`working condition prior to Decedent’s surgery
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`17.
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`Defendant was, in all probability negligent in the other respects in addition to the
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`above and foregoing and Plaintiffs reserve the right to amend their pleadings to conform to the
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`evidence.
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`18.
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`At all times relevant hereto, the personnel responsible for maintaining the fiber
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`optic cable at issue were employed by Defendant and were agents, servants, and/or employees of
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`Defendant.
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`19.
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`Under the doctrine of respondeat superior, Defendant is vicariously liable for the
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`negligence of its agent(s) and/or employees acting within the scope of their employment.
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`WRONGFUL DEATH
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`20.
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`Plaintiffs further bring a wrongful death and survival action, individually and on
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`behalf of the Estate Mary Lou Tanner pursuant to the Tex. Civ. Prac. & Rem. Code §71.001 et seq
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`Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 5 of 6
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`and §71.021.
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`PROXIMATE CAUSATION AND DAMAGES
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`21.
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`The negligence of the Defendant proximately caused the injuries and damages
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`made the basis of this suit.
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`22.
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`As a proximate result of the injury, Mary Lou Tanner endured physical pain and
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`suffering and mental anguish.
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`23.
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`As a proximate result of the injury, Mary Lou Tanner incurred medical expenses in
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`the past.
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`24.
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`As a proximate result of the injury, Mary Lou Tanner’s estate incurred funeral and
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`burial expenses
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`25.
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`As a proximate result of the injury, Plaintiffs, April Kluge, Jason Tanner and Gerald
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`Tanner have experienced pecuniary loss, termination of the parent-child relationship, and mental
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`anguish.
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`STATUTORY REQUIREMENTS
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`26. More than sixty days before the commencement of this action Plaintiffs complied
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`with Texas Statutes and provided notice to the Defendant of the claim pursuant to Tex. Civ. Prac.
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`& Rem. Code § 74.051.
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`JURY DEMAND
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`27.
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`Plaintiffs request a jury trial and tender the required fee upon filing this Original
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`Petition.
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`REQUEST FOR DISCLOSURES TO DEFENDANT
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`28.
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`Except as exempted by Rule 194.2(d) of the Texas Rules of Civil Procedure, a party
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`must, without awaiting a discovery request, provide to the other parties the information or material
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`4
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`Case 3:22-cv-00097 Document 1-4 Filed on 03/25/22 in TXSD Page 6 of 6
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`described in Rule 194.2, 194.3, and 194.4 within 30 days after the filing of the first answer or
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`general appearance unless a different time is set by the parties’ agreement or court order.
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`PRAYER
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`Plaintiffs pray that Defendant be served with citation and called upon to answer
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`29.
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`herein and that, upon trial hereof, they have judgment for all of their damages together with
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`prejudgment interest on past damages, interest on the judgment, costs of suit, and such other relief
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`to which they may be entitled.
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` Respectfully submitted,
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`THE WEYCER LAW FIRM, P.C.
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`By:
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`______________________________
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`MARK A. WEYCER
`State Bar No. 21237300
`mweycer@weycerlawfirm.com
`ELENA R. BUENO
`State Bar No. 24118342
`ebueno@weycerlawfirm.com
`4545 Bissonnet, Suite 294
`Bellaire, Texas 77401
`Tele: (713) 668-4545
`Fax: (713) 668-5115
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`ATTORNEYS FOR PLAINTIFFS
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`5
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