SMU, Travis Mays Response

FILED
AM
3/30/2020 9:05
JOHN WARREN
F.
COUNTY CLERK
DALLAS COUNTY
CAUSE NO. CC-20-O1053-D
DAI’JA THOMAS IN THE COUNTY COURT
VS. WWWWWW‘JW‘JWJW‘JW‘J
AT LAW NO. 4 OF
SOUTHERN METHODIST UNIVERSITY,

SOUTHERN METHODIST UNIVERSITY
BOARD OF TRUSTEES, TRAVIS MAYS,
DR. JOHN BAKER DALLAS COUNTY, TEXAS
THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND

ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Defendants Southern Methodist University (“SMU”), Southern
Methodist University Board of Trustees (“SMU Board”), and Travis Mays (“Defendant
Mays”), (collectively, the “SMU Defendants”) and file the following Special Exceptions and
Original Answer to Plaintiff’s Original Petition (the “m3. In support hereof, the SMU
Defendants respectfully would show the Court as follows:
l. BACKGROUND
1. Dai’ja Thomas (“mm brings this lawsuit against the SMU Defendants and
Defendant Dr. John Baker for claims arising out of an injury she alleges she sustained as
a student—athlete at SMU during the 2017-2018 basketball season, as well as the
subsequent medical treatment she received and alleged abusive treatment she endured
as a result of certain actions by Defendant Mays. In January 2019, Plaintiff claims an
MRI revealed a significant percentage of the cartilage in her knee was gone. [Petition, 1T
39]. According to Plaintiff, the standard of care in treating a knee injury for an athlete
depends on the type and severity of the injury, but typically physical therapy,
THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 1

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immobilization, and/or surgery is needed, followed by rest for eight to twelve weeks until
the athlete is pain-free or has minimal pain and then light rehabilitation, and only if rest
and rehabilitation do not ameliorate the condition should corticosteroid therapy be
considered. [Petition, ¶ 32]. Plaintiff further alleges the use of corticosteroids and/or
numbing agents should be limited due to the risk of further injury. [Petition, ¶ 33].
2. Plaintiff alleges the injections of local anesthetics and corticosteroids, as well
as the fluid drains she received subsequent to being injured playing basketball allowed
her to practice and play in subsequent games, but it caused her to lose cartilage in her
knee, which she claims will require her to undergo a total knee replacement before she
reaches the age of 40. [Petition, ¶¶ 24-25, 37-39]. In other words, Plaintiff alleges that
the SMU Defendants breached a medical standard of care which proximately caused her
injuries and damages.
3. SMU is not licensed by the State of Texas to practice medicine and is not
defined under applicable law as a health care provider. The SMU Defendants would show
by way of special exceptions that Plaintiff’s factual allegations of liability against the SMU
Defendants, even if taken as true, do not state viable causes of action against the SMU
Defendants. As a result, the Court should sustain the SMU Defendants’ special
exceptions and dismiss all such claims from this lawsuit.
II. SPECIAL EXCEPTIONS
A. Special Exceptions are an Appropriate Remedy for Plaintiff’s Failure to

State Recognized Causes of Action
4. The SMU Defendants raise these special exceptions, in part, to apprise the
Court that:

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(1) Many of Plaintiff’s claims are not recognized legal theories that would
impose legal liability on the SMU Defendants;
(2) Because Plaintiff alleges that all of the acts or omissions of Defendant
Mays occurred within the course and scope of his employment with SMU,
Defendant Mays does not have independent liability to Plaintiff, and he
must be dismissed from the lawsuit; and
(3) The SMU Board is not a legal entity and has no power to sue or be sued
and thus should be dismissed from this lawsuit.
5. Where the plaintiff’s pleadings are insufficient because they fail to state a cause
of action, the proper remedy for the defendant is to file special exceptions under Rule 91
of the Texas Rules of Civil Procedure. Sepulveda v. Krishnan, 839 S.W.2d 132, 134 (Tex.
App.—Corpus Christi 1992), aff’d 916 S.W.2d 478 (Tex. 1995); Cedar Crest Funeral
Home v. Lashley, 889 S.W.2d 325, 331 (Tex. App.—Dallas 1993, no writ) (citing Texas
Dep’t of Corr. v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974); Moseley v. Hernandez, 797
S.W.2d 240, 242 (Tex. App.—Corpus Christi 1990, no writ)). This procedure generally
allows for an opportunity to cure any defect by amending the pleadings. Herring, 513
S.W.2d at 9–10; Moseley, 797 S.W.2d at 242. Only after failing or refusing an opportunity
to amend may a plaintiff’s cause of action be dismissed. Herring, 513 S.W.2d at 9–10;
Moseley, 797 S.W.2d at 242.
6. If however, a plaintiff’s suit is not permitted by law, a defendant may file special
exceptions and seek a dismissal. See Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex.
1998); Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). The trial court need not
give the plaintiff an opportunity to amend when the pleading defect is of the type that
amendment cannot cure. Sepulveda, 839 S.W.2d at 134; Slentz v. American Airlines,
Inc., 817 S.W.2d 366, 369 (Tex. App.—Austin 1991, writ denied).

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7. For the reasons set forth below, the SMU Defendants request the Court sustain
the special exceptions and dismiss all claims to which the exceptions are directed.
B. Plaintiff has failed to assert a viable cause of action against the SMU Board.
8. Plaintiff asserts eight causes of action against the SMU Board:
• Cause of Action One – Negligence and Gross Negligence

[¶¶ 58-65].
• Cause of Action Two – Negligent Hiring, Retention, Supervision, Training

and Management
[¶¶ 66-76].
• Cause of Action Three – Negligent Misrepresentation

[¶¶ 77-86].
• Cause of Action Four - Res Ipsa Loquitor

[¶¶ 87-91].
• Cause of Action Five – Vicarious Liability (Respondeat Superior)

[¶¶ 92-94].
• Cause of Action Six – Actual or Apparent Agency/Authority

[¶¶ 95-101].
• Cause of Action Nine – Fraud by Nondisclosure (Fraudulent Concealment)

[¶¶ 119-130].
• Cause of Action Ten – Negligence and Gross Negligence

[¶¶ 131-138].
The SMU Defendants specially except to all of the causes of action alleged against the
SMU Board in paragraphs 58-101 and 119-138 of the Petition because the SMU Board
is not a separate legal entity that can be sued. Civil suits may only be maintained by or
against parties having an actual or legal existence. Ray Malooly Trust v. Juhl, 186 S.W.3d
568, 571 (Tex. 2006) (emphasis added). Plaintiff does not assert facts applicable under
Texas law that would make a Texas private non-profit university’s board liable as a legal

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entity, separate and distinct from the university. The SMU Board is not a separate entity
or an alter ego of the university but, instead, is an integral part of the university.
9. The Texas Business Organizations Code does not grant the SMU Board the
power to sue or be sued. The Texas Business Organizations Code identifies only a
“domestic entity” as an entity with the power to “sue, be sued, and defend suit in the
entity’s business name.” See TEX. BUS. ORG. CODE ANN. § 2.101 (a). A domestic entity is
defined as an organization formed under or the internal affairs of which are governed by
the Texas Business Organizations Code. See id. at § 1.102(18). The SMU Board is not
a body politic or organization formed under the Texas Business Organizations Code and
thus is not a domestic entity. The internal affairs of the SMU Board are governed by the
university’s bylaws, not the Texas Business Organizations Code. The provisions of the
Texas Business Organizations Code pertaining to directors of a non-profit Texas
corporation do not envision such a claim. See TEX. Bus. ORGS. CODE ANN. §§ 22.01,
22.223. Plaintiff does not assert facts which would make a Texas private non-profit
university’s board liable, as a separate legal entity, under Texas law.
10. Specific sections in the Texas Business Organizations Code expressly permit
individual officers and directors of a corporation to be held individually liable in limited
circumstances. See TEX. BUS. ORG. CODE ANN. §§ 22.226, 22.227, 22.235. However,
these sections do not apply because Plaintiff does not assert any causes of action against
the individual trustees of the SMU Board.
11. Courts in otherjurisdictions have held that the board of directors of an entity
lacks the capacity to be sued. Theta Chi Fraternity, Inc. v. Leland Stanford Junior Univ.,
212 F. Supp. 3d 816, 821 (N.D. Cal. 2016); Flarey v. Youngstown Osteopathic Hosp.,

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151 Ohio App. 3d 92, 2002-Ohi0-6899, 783 N.E.2d 582, 585-86. In Flarey, the court held
that the board of directors of a corporation did not have the capacity to be sued. 783
N.E.2d at 585—86. The court reasoned:
[|]t would be nonsensical to hold a board of directors liable as a

collective entity. A board of directors may not own property in its own
name. Thus, any judgment against it could not be recovered from
the collective group. Furthermore, a judgment against the collective
entity cannot apply to the individual, as the individuals are liable only
ifthey participated in the tortious conduct. Thus, such a suit would
be, for all practical purposes, pointless.
The members of the board are liable in their individual, but not their
collective, capacity the fact that the board is not a separate entity
. . .
capable of being sued is demonstrated by the fact that corporations

can indemnify individual members of its board of directors, but not
the board of directors as a whole. A board of directors is not a
separate entity or an alter ego of the corporation. Instead, it is an
integral part of the corporation. Id.
In Theta Chi Fraternity, Inc., the court held that the board of directors of a collegiate
fraternity alumni association lacked the capacity to be sued. 212 F. Supp. 3d at 821.
Similar to the Texas statute identifying only a domestic entity as having the capacity to be
sued, the court reasoned that because the California Corporations Code identifies only a
“corporation” and an “association” as entities with the capacity to be sued, the board of
directors of the association lacked the legal capacity to be sued. Id. at 821. Likewise,
there is no basis for a claim against the board of directors of non-profit corporations in
Texas to be sued as a separate legal entity. See TEX. BUS. ORG. CODE ANN. § 22.201 et
seq. No form of amendment will change the fact that the SMU Board cannot be sued as
a separate legal entity. Therefore, Plaintiff’s claims against the SMU Board should be
dismissed in their entirety.

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C. Special exceptions directed to Plaintiff’s negligence causes of action against
the SMU Defendants for failure to assert a viable cause of action and failure
to provide fair notice to the SMU Defendants of the allegations giving rise to
her claims
12. Plaintiff asserts the following negligence causes of action against the SMU
Defendants:
Neqliqence Claims Aqainst SMU, SMU Board and Defendant Mays
o Cause of Action One — Negligence and Gross Negligence

[1m 58-65].
o Cause of Action Two — Negligent Hiring, Retention, Supervision, Training

and Management
[1m 66-76].
o Cause of Action Three — Negligent Misrepresentation

[1m 77-86].
o Cause of Action Ten — Negligence and Gross Negligence

[1m 131-138].
13. The SMU Defendants specially except to Cause of Action One — Negligence
and Gross Negligence [1111 58-65], Cause of Action Two — Negligent Hiring, Retention,
Supervision, Training and Management [1111 66-76], Cause of Action Three — Negligent
Misrepresentation [1111 77-86], and Cause of Action Ten — Negligence and Gross
Negligence [1T1] 131-138] against Defendants SMU, the SMU Board, and Defendant Mays
in their entirety. The threshold issue in any negligence action is legal duty. Centeq Realty
v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A plaintiff must prove the existence and
violation of a legal duty owed to him by the defendant to establish negligence liability.
Siegler, 899 S.W.2d at 197. Whether a duty exists is a question of law. Id. Texas law
generally imposes no duty to take action to prevent harm to others absent certain special
relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex.

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2000); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) (stating
that special relationships include relationships between common carrier-passenger,
innkeeper-guest, premises occupier-invitee, employer-employee and parent-child
relationships). Plaintiff alleges “Defendants owed a duty to Plaintiff . . . in which Plaintiff
agreed to receive her education from and played for on the basketball court.” [Petition,
¶ 59 (italics added)]. The relationship between an adult student athlete and the university
she attends is not a special relationship. Boyd v. Texas Christian Univ., 8 S.W.3d 758,
759 (Tex. App.—Fort Worth 1999, no pet.). No form of amendment will change the fact
that the law does not recognize a general duty of care owed to Plaintiff by the SMU
Defendants based on her status as a student athlete. Accordingly, all of Plaintiff’s
negligence theories seeking to impose liability on SMU, the SMU Board, and Defendant
Mays for the various alleged negligence claims should be stricken because no legal duty
exists as a matter of law.
14. The SMU Defendants specially except to Cause of Action One – Negligence
and Gross Negligence [¶¶ 58-65] and Cause of Action Ten – Negligence and Gross
Negligence [¶¶ 131-138] against SMU, the SMU Board, and Defendant Mays in their
entirety. Specifically, Plaintiff alleges these SMU Defendants owed a legal duty to Plaintiff
as a player on the SMU women’s basketball team. The Dallas Court of Appeals has only
recognized a legal duty in the narrow instance of one sports participant to another not to
act recklessly or intentionally to cause an injury. Connell v. Payne, 814 S.W.2d 486, 489
(Tex. App.—Dallas 1991, writ denied). The Texas Supreme Court has never extended
this limited duty to nonparticipant defendants, such as schools or coaches. See Sw. Key
Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 272 (Tex. 2002). Plaintiff has failed to plead

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facts supporting any recognized legal duties allegedly owed to a basketball player by her
coach with regard to return to play decisions that are dependent on the judgment of a
physician. Similarly, a basketball player is owed no legal duty under Texas law that a
coach refrain from encouraging the player to return to play if medically cleared, or that a
coach refrain from reminding the player of the coach’s expectations or the consequences
if the player is not meeting those expectations. Plaintiff should be required to re-plead
and state with specificity the facts that allegedly would support a legal duty owed to
Plaintiff by the SMU Defendants in order to provide the SMU Defendants fair and
adequate notice of the basis for this negligence claim, and if she fails to do so, her
negligence claims against SMU, the SMU Board, and Defendant Mays must be stricken.
15. The SMU Defendants specially except to Cause of Action One – Negligence
and Gross Negligence [¶¶ 58-65], Cause of Action Two – Negligent Hiring, Retention,
Supervision, Training and Management [¶¶ 66-76], Cause of Action Three – Negligent
Misrepresentation [¶¶ 77-86], and Cause of Action Ten – Negligence and Gross
Negligence [¶¶ 131-138] wherein Plaintiff asserts negligence claims against Defendant
Mays individually. Personal liability for the negligent acts committed within the scope of
employment arises only when the employee owes a duty to the plaintiff independent of
the employer’s duty. Leitch v. Hornsby, 935 S.W.2d 114, 117–18 (Tex. 1996). Plaintiff
alleges that the actions of Defendant Mays occurred within the scope of his employment,
or within the authority delegated to him by SMU. [Petition, ¶ 93]. Plaintiff fails to plead a
viable legal claim for which Defendant Mays could be individually liable to Plaintiff on a
negligence theory. Plaintiff should be required to re-plead and state with specificity the
facts that support an alleged independent duty of care owed to Plaintiff by Defendant

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Mays, outside of his employment with SMU, in order to provide him fair and adequate
notice of the basis for these claims, and if she fails to do so, her negligence claims as to
Defendant Mays must be dismissed.
16. The SMU Defendants specially except to the allegations contained in Cause
of Action One – Negligence and Gross Negligence [¶¶ 58-65] and Cause of Action Ten –
Negligence and Gross Negligence [¶¶ 131-138] wherein Plaintiff alleges that “Defendants
breached its duties and were negligent as it relates to the incident in question” for failing
to implement or require procedures and/or policies on:
• how to treat and clear to play student athletes for Plaintiff’s specific injury;
• how and when to refer/consult with specialists in specialized medical

fields related to Plaintiff’s injury;
• how and when pharmaceutical drugs, including local anesthetics and

corticosteroids, should be administered;
• informing the student athlete of the risks of playing with injury and the long-
term implications.
[¶ 60(a)(i), (iii)-(v); 133(a)(i), (iii)-(v)]. Plaintiff’s claims against the SMU Defendants arise
out of alleged substandard medical treatment she received following her alleged injury
during the 2017-2018 basketball season and are improperly alleged as tort claims to
circumvent Chapter 74 of the Civil Practice and Remedies Code. These acts would
appear to constitute “practicing medicine,” which is defined as the diagnosis, treatment,
or offer to treat a physical disease, disorder, or injury by a licensed physician or surgeon.
See TEX. OCC. CODE ANN. §151.002(a)(13). The SMU Defendants are not licensed to
practice medicine and cannot be held directly liable for any acts or omissions which
constitute medical functions. See, Doctors Hosp. at Renaissance, Ltd. v. Andrade, 493
S.W.3d 545, 548 (Tex. 2016); Spinks v. Brown, 103 S.W.3d 452, 456 n.4 (Tex. App.—

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San Antonio 2002, pet. denied); Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 415
(Tex. App.—Fort Worth 2003, no pet.); Methodist Hosp. v. German, 369 S.W.3d 333, 343
(Tex. App.—Houston [1st Dist.] 2011, pet. denied) (“Only doctors are legally authorized to
make a medical diagnosis by evaluating a patient’s medical treatment and the
development of subsequent symptoms to conclude that a particular medical condition has
resulted.”). No form of amendment will change the fact that Texas law does not impose
a duty owed to student athletes by non-physicians such as schools and coaches with
regard to acts considered to be the practice of medicine and as such, all of her negligence
claims pertaining to complaints about medical care should be stricken.
17. The SMU Defendants further specially except to the allegations in Cause of
Action One – Negligence [¶ 60(d)] and Cause of Action Ten – Negligence [¶ 133(e)]
wherein Plaintiff alleges “other breaches that may be discovered throughout the litigation.”
Plaintiff may be allowed to amend her pleading during the litigation but may not assert
theoretical harms when she files her petition. See Crosstex N. Tex. Pipeline, L.P. v.
Gardiner, 505 S.W.3d 580, 601 (Tex. 2016). Plaintiff should be required to re-plead and
delete this allegation and if she fails to do so, her claims must be stricken.
18. The SMU Defendants specially except to the allegation in Cause of Action
One – Negligence [¶ 60(b)] and Cause of Action Ten – Negligence [¶ 133(b)] wherein
Plaintiff makes a broad, non-specific allegation of negligently hiring, training and
supervising “Defendant SMU’s doctors, athletic trainers, coaches, and staff who were
involved in Plaintiff’s injury.” Plaintiff fails to specify who she is claiming was “involved in
Plaintiff’s injury” or the injury to which Plaintiff is referring. Plaintiff further fails to
distinguish how these allegations are different from the allegations set forth in Cause of

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Action Two – Negligent Hiring, Retention, Supervision, Training and Management [¶¶ 66-
76]. Plaintiff should be required to re-plead with specificity as to this matter.
19. The SMU Defendants specially except to Cause of Action Two – Negligent
Hiring, Retention, Supervision, Training and Management [¶¶ 66-76] wherein Plaintiff
asserts negligent hiring, retention, supervision, training and management claims. Plaintiff
did not plead the elements of her cause of action for negligent hiring, retention,
supervision, training and management. Specifically, Plaintiff did not assert that (1) the
SMU Defendants owed Plaintiff a duty to hire, supervise, train or retain competent
employees, (2) the SMU Defendants breached that duty, and (3) the breach proximately
caused Plaintiff’s injury. Consequently, Plaintiff fails to allege facts to support a cause of
action for negligent hiring, retention, supervision, training and management. Plaintiff
should be required to re-plead with specificity and if not, these theories must be stricken.
20. The SMU Defendants further specially except to Cause of Action Two –
Negligent Hiring, Retention, Supervision, Training and Management [¶¶ 66-76] wherein
Plaintiff alleges the SMU Board and Defendant Mays were negligent in employing
Defendant Dr. John Baker. The duty to hire, supervise, train, retain or manage competent
employees is imposed only on the employer and a plaintiff must establish an employer-
employee relationship between the defendant and the employee about which the plaintiff
has a complaint. See, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex.
1996). Plaintiff fails to state any factual allegations or any claim for which SMU, the SMU
Board or Defendant Mays could be individually liable to Plaintiff as the employer of
Defendant Dr. John Baker, who is not an employee of SMU. In fact, Plaintiff alleges SMU,
not the SMU Board or Defendant Mays, was the employer of Defendant Mays and

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Defendant Dr. John Baker. [Petition, ¶ 9(b), 60(c), 67]. Plaintiff should be required to re-
plead and state with specificity the facts that support the allegation that the SMU Board
and Defendant Mays were employers of Defendant Dr. John Baker in order to make out
a negligent hiring, retention, supervision, training and management claim in order to
provide them fair and adequate notice of the basis for this claim, and if she fails to do so,
these negligence claims must be stricken.
21. The SMU Defendants specially except to the allegations in Cause of Action
Three – Negligent Misrepresentation [¶¶ 77-86] and Cause of Action Nine – Fraud by
Non-Disclosure [¶ 119-130] wherein Plaintiff alleges that the SMU Defendants made
certain representations to Plaintiff or failed to disclose certain information to Plaintiff.
These allegations fail to put the SMU Defendants on notice of the identity of the person(s)
who allegedly made these representations to Plaintiff or the identity of the person(s) who
should have disclosed certain information to Plaintiff. Plaintiff should be required to re-
plead with specificity as to this matter.
22. The SMU Defendants further specially except to the allegations in Cause of
Action Three – Negligent Misrepresentation [¶¶ 77-86] wherein Plaintiff is seeking
elements of damages other than out-of-pocket expenses based on alleged negligent
misrepresentations. [See Petition, ¶ 83, in which Plaintiff seeks compensatory personal
injury damages.]. In Texas, a plaintiff’s recovery in a negligent misrepresentation action
is limited to actual damages only for pecuniary loss, which includes (1) the difference
between the value of what the plaintiff has received in the transaction and the purchase
price of other value given for what is received and (2) loss otherwise suffered as a
consequence of the plaintiff’s reliance on the misrepresentation. D.S.A., Inc. v. Hillsboro

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Indep. Sch. Dist., 973 S.W.2d 662, 663–64 (Tex. 1998). Texas courts have expressly
disallowed damages for mental anguish damages and future damages. Fed. Land Bank
Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 443 (Tex. 1991).
One – Negligence and Gross Negligence [¶¶ 58-65] and Cause of Action Ten –
Negligence and Gross Negligence [¶¶ 131-138] wherein Plaintiff alleges that SMU, the
SMU Board, and Defendant Mays owed a “fiduciary duty” to Plaintiff. This allegation is
intermingled with Plaintiff’s negligence and gross negligence claims; however, a breach
of fiduciary duty is separate and distinct from a negligence claim. Plaintiff does not plead
any factual allegations supporting the elements of her cause of action for breach of
fiduciary duty. Specifically, Plaintiff did not assert that (1) Plaintiff and these SMU
Defendants had a fiduciary relationship, (2) these SMU Defendants breached their
fiduciary duties to Plaintiff, and (3) that Defendants’ breach resulted in injury to Plaintiff or
a benefit to these SMU Defendants. Consequently, Plaintiff fails to allege facts to support
a cause of action for a breach of fiduciary duty. Additionally, Plaintiff has failed to allege
specific facts that would support the existence of a fiduciary relationship between Plaintiff
and any of the SMU Defendants or that would give rise to a fiduciary duty. No Texas
court has found that a fiduciary relationship exists between a university’s employees and
its students. Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo
1998, pet. denied) (stating that there is no fiduciary relationship, formal or informal,
between students and teachers).
D. Special exceptions directed to Plaintiff’s vicarious liability causes of action

against SMU and the SMU Board for failure to assert a viable cause of action
and failure to provide fair notice to the SMU Defendants of the allegations
giving rise to her claims

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24. Plaintiff alleges that SMU and the SMU Board are vicariously liable under two
separate theories of liability:
• Cause of Action Five – Vicarious Liability (Respondeat Superior) [¶¶ 92-94].
• Cause of Action Six – Actual or Apparent Agency/Authority [¶¶ 95-101].
25. The SMU Defendants specially except to Cause of Action Five – Vicarious
Liability (Respondeat Superior) [¶¶ 92-94]. To hold a defendant vicariously liable under
respondeat superior, Plaintiff must establish a tort was committed by an employee of the
defendant. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).
Plaintiff fails to state any factual allegations to support a claim that SMU or the SMU Board
was the employer of Defendant Dr. John Baker. Plaintiff should be required to re-plead
and state with specificity the facts that support an employer-employee relationship that
would subject SMU and the SMU Board to vicarious liability under a theory of respondeat
superior for the alleged torts of Defendant Dr. John Baker in order to provide them fair
and adequate notice of the basis for this claim, and if she fails to do so, her claims plead
under this cause of action must be stricken.
Five – Vicarious Liability (Respondeat Superior) [¶¶ 92-94] in which Plaintiff makes a
claim for vicarious liability based on “acts and/or omissions” of Defendant Dr. John Baker
and Defendant Mays. This allegation fails to put the SMU Defendants on notice of the
alleged acts and/or omissions that are the basis of this cause of action. Plaintiff should
be required to re-plead with specificity as to this matter.
27. The SMU Defendants specially except to Cause of Action Six – Actual or
Apparent Agency/Authority [¶¶ 95-101] wherein Plaintiff asserts that SMU and the SMU

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Board are vicariously liable for the alleged negligence and gross negligence of Defendant
Dr. John Baker under an agency theory of apparent authority. SMU and the SMU Board
cannot be vicariously liable for such medical negligence because it is not a statutory
health care provider, nor is it regarded as a traditional health care provider. See, Doctors
Hospital at Renaissance, Ltd. v. Andrade, 493 S.W.3d 545 (Tex. 2016). In cases alleging
medical negligence by a physician, Texas courts have only applied the doctrine of
ostensible agency to a principal, such as a hospital, when the principal was also a health
care provider. Neither SMU nor the SMU Board are health care providers under the
Texas Medical Liability Act, and therefore, the medical decisions of Defendant Dr. John
Baker cannot have come within any authority granted to him by SMU or the SMU Board.
Accordingly, SMU and the SMU Board request the Court sustain these exceptions and
dismiss Cause of Action Six in its entirety.
E. Special exceptions directed to Plaintiff’s causes of action under the doctrine

of res ipsa loquitur against the SMU Defendants for failure to assert a viable
cause of action and failure to provide fair notice to the SMU Defendants of
the allegations giving rise to her claims
28. The SMU Defendants specially except to Cause of Action Four – Res Ipsa
Loquitor [¶¶ 87-91] wherein Plaintiff invokes the doctrine of res ipsa loquitur as “a theory
of negligence, causation and damages.” [Petition, ¶ 91]. Plaintiff’s alleged “cause of
action” for res ipsa loquitur is precluded by law in that such a cause of action is not
recognized or allowed in Texas. Specifically, res ipsa loquitur is not a separate cause of
action from negligence, but is simply a rule of evidence by which negligence may be
inferred by the jury. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982).
Moreover, Plaintiff’s suit contains no basis for a claim for res ipsa loquitur because that
doctrine is only applicable when the character of the incident is such that it would not

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ordinarily occur in the absence of negligence. Id. The character of Plaintiff’s claims, an
injury alleged to have occurred while Plaintiff was participating as a student athlete for the
SMU Women’s Basketball team, is one that could (and frequently does) occur in the
absence of negligence. The SMU Defendants further specially except because Plaintiff’s
suit contains no basis for a claim of res ipsa loquitur arising from a claim of medical
negligence because the doctrine is only applicable when there has been negligence in
the use of mechanical instruments, operating on the wrong body part, and leaving surgical
instruments or sponges inside the body. See, Broxterman v. Carson, 309 S.W.3d 154,
158—59 (Tex. App.—Dallas 2010, pet. denied). Plaintiff’s claim of res ipsa loquitor fails
as a matter of law and should be stricken.
F. Special exceptions directed to Plaintiff’s causes of action for lack of

informed consent against the SMU Defendants for failure to assert a viable
the allegations giving rise to her claims1
29. The SMU Defendants specially except to Cause of Action Eight — Lack of
Informed Consent [1m 111-118] wherein Plaintiff asserts a cause of action for lack of
informed consent based on a “physician-patient” relationship with Defendant Dr. John
Baker. In Texas, the duty to obtain informed consent is a nondelegable duty imposed
solely upon the treating doctor. Sanchez v. Martin, 378 S.W.3d 581, 596 (Tex. App.—
Dallas 2012, no pet.). Plaintiff fails to state any factual allegations or any claim to
establish that any of the SMU Defendants are physicians or have a physician-patient
1
Itunclear whether Plaintiff’s Cause of Action Eight — Lack of Informed Consent [1m 1 1 1-1 18] applies
is
to and being alleged against the SMU Defendants. Although the heading of Cause of Action Eight states
is
it is against Defendant Dr. John Baker, the section references Defendants and does not appear to be limited
to Defendant Dr. John Baker. Therefore, to the extent Plaintiff’s Cause of Action Eight — Lack of Informed
Consent [1m 111-1 18] applies to the SMU Defendants, the SMU Defendants specially except as set forth in
this section.

|:\09597\0005\14H5089.DOCX
relationship with Plaintiff. Because the SMU Defendants did not have a physician-patient
relationship with Plaintiff, Plaintiff’s lack of informed consent claim fails as a matter of law
and should be stricken.
G. Special exceptions directed to Plaintiff’s cause of action for fraud by

nondisclosure against the SMU Defendants for failure to assert a viable
the allegations giving rise to her claims
30. The SMU Defendants specially except to Cause of Action Nine – Fraud by
Nondisclosure [¶¶ 119-130] wherein Plaintiff alleges that Defendants owed Plaintiff a duty
pursuant to their “physician-patient relationship.” None of the SMU Defendants are
licensed as “physicians” in Texas. TEX. OCC. CODE ANN. § 151.002(12)-(13); TEX. CIV.
PRAC. & REM. CODE A NN. § 74.001(23). Therefore, they did not have a physician-patient
relationship with Plaintiff.
Nondisclosure [¶¶ 119-130] wherein Plaintiff attempts to establish the “duty to disclose”
element of fraud by nondisclosure by stating the SMU Defendants owed a duty based on
their fiduciary and physician-patient relationship with Plaintiff. Plaintiff has failed to allege
specific facts that would support the existence of a fiduciary or a physician-patient
relationship between Plaintiff and any of these SMU Defendants that would give rise to a
duty to disclose. Plaintiff’s Petition is defective in that it fails to state a valid fraud by
nondisclosure cause of action against the SMU Defendants and cannot be remedied by
amendment.
Nondisclosure [¶¶ 119-130] wherein Plaintiff asserts a fraud claim against Defendant
Mays. Plaintiff alleges that the actions of Defendant Mays occurred within the scope of

I:\09597\0005\14H5089.DOCX
his employment, or within the authority delegated to him by SMU. [Petition, ¶ 93]. Plaintiff
fails to plead a viable legal claim for which Defendant Mays could be individually liable to
Plaintiff on any fraud theory. Plaintiff should be required to re-plead and state with
specificity the facts that support an independent duty owed to Plaintiff by Defendant Mays,
outside of his employment with SMU, in order to provide fair and adequate notice of the
basis for this claim, and if she fails to do so, all of Plaintiff’s fraud by nondisclosure claim
as to Defendant Mays must be dismissed.
H. Special exceptions as to specific factual allegations that fail to provide fair

notice to the SMU Defendants of Plaintiff’s claims and requested relief
33. Without waiving the foregoing exceptions, the SMU Defendants also assert
the following special exceptions to Plaintiff’s Original Petition and request the Court
sustain the exceptions and require Plaintiff to re-plead within a reasonable time in
conformity with the Court’s ruling on all of the foregoing exceptions.
34. The SMU Defendants specially except to paragraphs 9(b), 60, 67, 68, 96, 98,
105, 132 and 133 of the Petition in which Plaintiff references the “incident in question.”
“Incident in question” is not a term defined in Plaintiff’s Original Petition. Additionally, the
SMU Defendants specially except to paragraphs 65, 76, 86, 110, 118 and 138 of the
Petition in which Plaintiff references the “incident.” “Incident” is also not a term defined in
Plaintiff’s Original Petition. Therefore, it fails to identify with specific particularity what
“incident in question” or “incident” to which Plaintiff refers. Plaintiff should be required to
re-plead with specificity as to this matter.
35. The SMU Defendants specially except to paragraph 15 of the Petition in which
Plaintiff makes the broad non-specific allegation that she “played through the entire 2017-
2018 season on a knee injury at the behest, encouragement, and treatment

I:\09597\0005\14H5089.DOCX
recommendation of SMU and its employees—including coaches and training staff and
SMU’s own head orthopedic team physician.” This allegation fails to put the SMU
Defendants on notice of the identity of the person(s) who allegedly requested or
encouraged Plaintiff to continue to play or the person(s) who recommended treatment.
Plaintiff should be required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation that the “shots and fluid drains were
administered by SMU and SMU’s head orthopedic team physician, Dr. John Baker.” This
allegation fails to put the SMU Defendants on notice of the identity of the person(s), other
than Defendant Dr. John Baker, that administered the shots and fluid drains. Plaintiff
should be required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation that she received “pressure to return to
play despite her pain and her condition,” alleging the pressure came from SMU, the SMU
Board, Defendant Mays, Defendant Dr. John Baker, and the assistant coaching staff and
trainers of SMU. This allegation fails to put the SMU Defendants on notice of the identity
of the person(s), other than Defendant Mays and Defendant Dr. John Baker, that
pressured her to return to play. Plaintiff should be required to re-plead with specificity as
to this matter.
Plaintiff makes the broad non-specific allegation that “SMU and its doctor provided the
bare minimum necessary to keep [Plaintiff] on the court.” This allegation fails to put the
SMU Defendants on notice of the identity of the person(s) who “provided the bare

I:\09597\0005\14H5089.DOCX
minimum necessary to keep [Plaintiff] on the court.” Plaintiff should be required to re-
Plaintiff makes the broad non-specific allegation that Defendant Mays and his coaching
staff targeted and bullied Plaintiff and “non-Mays recruits.” This allegation fails to put the
SMU Defendants on notice of the identity of the person(s), other than Defendant Mays,
that targeted and bullied Plaintiff and “non-Mays recruits.” Plaintiff should be required to
Plaintiff makes the broad non-specific allegation that Plaintiff received “targeted criticism
and pressure related to her knee injury.” This allegation fails to put the SMU Defendants
on notice of the identity of the person(s) who criticized and pressured Plaintiff regarding
her knee injury. Plaintiff should be required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation regarding “staff’s abusive practices.”
This allegation fails to put the SMU Defendants on notice of the identity of the person(s)
that engaged in abusive practices or the nature of the abusive practices. Plaintiff should
Plaintiff makes the broad non-specific allegation regarding comments and
communications made by “parents of players.” This allegation fails to put the SMU
Defendants on notice of the identity of the person(s) that made the comments and

I:\09597\0005\14H5089.DOCX
communications, as well as the identity of the “parents of players.” Plaintiff should be
required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation regarding “continued pressure from
SMU’s own employees.” This allegation fails to put the SMU Defendants on notice of the
identity of the person(s) who pressured Plaintiff. Additionally, Plaintiff fails to identify with
specific particularity what specific “pressures” were allegedly brought to bear on her.
Plaintiff should be required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation that “SMU’s staff medically disqualified”
Plaintiff. This allegation fails to put the SMU Defendants on notice of the identity of the
person(s) that medically disqualified Plaintiff. Plaintiff should be required to re-plead with
specificity as to this matter.
Plaintiff makes the broad non-specific allegation that “[a]ll Defendants (SMU, the SMU
Board, Coach Travis Mays, and others) knew, supervised, and/or approved of the
injections.” (italics added). This allegation fails to put the SMU Defendants on notice of
the identity of the person(s), other than Defendant Dr. John Baker and Defendant Mays,
that knew, supervised, and/or approved of the injections. Plaintiff should be required to
Plaintiff makes the broad non-specific allegation that “[n]umerous orthopedic surgeons
and professionals have relayed that” Plaintiff “will need a total knee replacement before

I:\09597\0005\14H5089.DOCX
the age of 40.” This allegation fails to put the SMU Defendants on notice of the identity
of the person(s) that relayed this information. Plaintiff should be required to re-plead with
specificity as to this matter.
Plaintiff makes the broad non-specific allegation that “Defendant Travis Mays and several
other members of the SMU coaching staff pressured, harassed, abused, and humiliated
many injured basketball players.” This allegation fails to put the SMU Defendants on
notice of the identity of the person(s), other than Defendant Mays, that “pressured,
harassed, abused, and humiliated many injured basketball players.” Plaintiff should be
required to re-plead with specificity as to this matter.
Plaintiff makes the broad non-specific allegation regarding SMU coaches’ preferences
and beliefs. This allegation fails to put the SMU Defendants on notice of the identity of
the person(s) who had such preferences and beliefs. Plaintiff should be required to re-
Plaintiff makes the broad non-specific allegation that she “was informed she had basically
no cartilage.” This allegation fails to put the SMU Defendants on notice of the identity of
the person(s) who informed Plaintiff that “she basically had no cartilage.” Plaintiff should
50. The SMU Defendants specially except to paragraph 54 of the Petition wherein
Plaintiff makes a broad non-specific allegation of “breach of contract by Defendants.”
Plaintiff fails to identify any contract or specify what contract was allegedly breached and

I:\09597\0005\14H5089.DOCX
fails to identify which Defendants, if any, breached a contract. Additionally, Plaintiff did
not plead the elements of her alleged cause of action for breach of contract. Specifically,
Plaintiff did not assert that (1) a valid contract existed between Plaintiff and the SMU
Defendants, (2) Plaintiff tendered performance or was excused from doing so, (3) the
SMU Defendants breached the terms of the contract, and (4) Plaintiff sustained damages
as a result of the SMU Defendants’ breach. Consequently, Plaintiff fails to allege facts to
support a cause of action in favor of Plaintiff for any breach of contract. Plaintiff should
be required to re-plead with specificity and if she fails to do so, the allegation of breach of
contract should be stricken.
51. The SMU Defendants specially except to paragraph 56 and the prayer of the
Petition in which Plaintiff states that she is entitled to recover reasonable and necessary
attorneys’ fees. This claim fails to put the SMU Defendants on notice of what legal theory
Plaintiff is relying on for a recovery of attorneys’ fees. Plaintiff should be required to re-
plead with specificity as to this matter, failing which such allegations should be stricken.
52. The SMU Defendants specially except to Plaintiff’s failure to provide the
identifying information required by Section 30.014 of the Texas Civil Practice and
Remedies Code.
53. The SMU Defendants specially except to Plaintiff’s failure to provide a current
residence address as required by Section 30.015 of the Texas Civil Practice and
Remedies Code.
54. The SMU Defendants specially except to Plaintiff’s failure to state the
maximum amount of damages she is seeking in this lawsuit. As required by Rule 47 of
the Texas Rules of Civil Procedure, the SMU Defendants request that the Court order

I:\09597\0005\14H5089.DOCX
Plaintiff to re-plead her Petition to state the maximum amount of damages she is seeking
herein.
III. GENERAL DENIAL
55. As authorized by Rule 92 of the Texas Rules of Civil Procedure, the SMU
Defendants plead a general denial to Plaintiff’s Original Petition and any subsequent
amendment to the Petition and request that Plaintiff be required to prove her allegations
by a preponderance of the evidence.
IV. VERIFIED DENIALS
56. The SMU Defendants contend that the SMU Board is not a proper party
defendant in this lawsuit and does not have the legal capacity to sue or be sued, as
discussed in more detail in Section II.B., above. TEX. R. CIV. P. 93(3).
V. AFFIRMATIVE DEFENSES
57. For further answer, if same be necessary, and without waiving any of the
foregoing, the SMU Defendants contend Plaintiff’s claims are medical negligence claims
and should be brought solely as a “health care liability claim” as that term is defined by
Chapter 74 of the Texas Civil Practice and Remedies Code against a licensed health care
professional.
58. The SMU Defendants are not licensed physicians or health care providers.
59. Pleading further and in the alternative, and without waiving any of the
foregoing, the SMU Defendants would show that SMU qualifies as a charitable
organization within the meaning of Chapter 84 of the Texas Civil Practice and Remedies
Code. As a qualifying charitable organization, SMU invokes all protections and damage
limitations caps available to SMU and its employees. See § 84.006, TEX. CIV. PRAC. &
REM. CODE.
I:\09597\0005\14H5089.DOCX
60. Pleading further and without waiving any of the foregoing, Plaintiff's claims
are barred, in whole or in part, by the applicable statute of limitations, including, but not
limited to, Texas Civil Practice and Remedies Code §16.003.
61. Pleading further, in the alternative, and without waiver that the SMU
Defendants are not health care providers under or are otherwise subject to Chapter 74 of
the Texas Civil Practice and Remedies Code, in the unlikely event the Court determines
Chapter 74 is applicable to the any of the SMU Defendants, the SMU Defendants contend
that Plaintiff has failed to comply with Chapter 74 of the Texas Civil Practice and
Remedies Code. Specifically, and only in that event, the SMU Defendants allege Plaintiff
failed to comply with Sections 74.051(a) and 74.052(a) by failing to serve the proper
notice and medical authorization upon the SMU Defendants. As a result, Plaintiff is not
entitled to the 75-day limitations tolling provision contained within Section 74.051(c).
Therefore, Plaintiff’s claims are barred by the applicable statute of limitations of Section
74.251.
62. Further answering and without admitting any liability to Plaintiff, the SMU
Defendants would show that Plaintiff’s claims and damages, if any, are subject to the
proportionate responsibility rights, protections, privileges and provisions of Chapter
33.001, et seq., Texas Civil Practice and Remedies Code. Specifically, the SMU
Defendants would show on information and belief that all of Plaintiff’s claims and
damages, if any, were proximately caused by her negligent acts, omissions and/or
conduct when she failed to act as a reasonably prudent person would have acted under
the same or similar circumstances in connection with the time and place of the various
occurrences about which she complains of the SMU Defendants’ conduct. Thus,

I:\09597\0005\14H5089.DOCX
Plaintiff’s negligence bars, in whole or in part, her claims and damages. The SMU
Defendants therefore request that the trier of fact determine and apportion any potential
percentage of responsibility and amount of recovery as provided in Section 33.003 for
causing or contributing to cause the injuries, harm and damages Plaintiff is alleged to
have sustained. Specifically, the SMU Defendants invoke the determination of
percentage of responsibility requirements of Sections 33.003, 33.012 and 33.013, Texas
Civil Practice and Remedies Code.
63. Pleading further and without waiving any of the foregoing, Plaintiff’s claims
and damages, if any, were caused, in whole or in part, by the acts, conduct or omission
of others for whose conduct none of the SMU Defendants was legally responsible or
resulted from conditions and activities unrelated to any conduct of the SMU Defendants.
64. Pleading further, Plaintiff’s claims and damages, if any, resulted from
independent, unforeseeable, intervening and/or superseding acts, events or causes
committed by other persons.
65. Any alleged action or omission on the part of any of the SMU Defendants was
not a proximate cause, producing cause, or cause in fact of Plaintiff’s claims for damages,
if any.
66. To the extent Plaintiff has failed to mitigate her alleged damages, the SMU
Defendants affirmatively plead the defense of failure to mitigate.
67. The SMU Defendants contend that an award of punitive and/or exemplary
damages against the SMU Defendants or any of them under the facts of this case would
be excessive and would violate the due process clauses of the U.S. and Texas State
Constitutions.

I:\09597\0005\14H5089.DOCX
68. To the extent not previously invoked, the SMU Defendants hereby each
invoke their right, if any, to the limitations and caps on damage awards and/or recovery
under Section 41.008 and Section 74.301 of the Texas Civil Practice and Remedies Code
and other applicable law providing limitations and caps on damages.
69. Plaintiff’s claims are barred, in whole or in part, because any of the acts of
the SMU Defendants were legally justified or privileged.
70. Pleading further, the SMU Defendants assert that the acts or omissions of
Plaintiff were the sole proximate cause of the incident(s) made the basis of this lawsuit
and any associated damages.
71. Pleading further, the SMU Defendants invoke Section 41.0105 of the Texas
Civil Practice and Remedies Code, and request that to the extent Plaintiff seeks recovery
of medical or health care expenses, the evidence to prove such loss be limited to the
amount actually paid or incurred by or on behalf of Plaintiff as opposed to the amount
charged.
72. Pleading further, the SMU Defendants invoke Section 18.091 of the Texas
Civil Practice and Remedies Code, to the extent Plaintiff seeks damages for loss of
earnings, earning capacity, and/or contribution of pecuniary value.
73. Pleading further, the SMU Defendants would show that Plaintiff affirmatively
assumed the risks of playing collegiate basketball and any injuries associated with playing
a competitive contact sport.
74. Plaintiff cannot recover attorneys’ fees for any claims asserted against the
SMU Defendants.

I:\09597\0005\14H5089.DOCX
75. Plaintiff’s claims for attorneys’ fees are barred under the doctrine of
unreasonable or excessive demand.
76. The SMU Defendants reserve the right to amend their answer and to assert
any additional defenses, affirmative defenses and further responsive pleadings as
discovery progresses.
VI. RULE 193.7 NOTICE
77. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, the SMU
Defendants hereby give notice that they intend to use all documents produced by Plaintiff
or others in response to written discovery in any pre-trial hearing and at trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the SMU Defendants pray that the
Court grant the following relief:
i. Sustain the special exceptions to Plaintiff’s causes of action as hereinabove

alleged and dismiss all of Plaintiff’s causes of action including:
(1) Plaintiff’s causes of action against the SMU Board because it is

not a separate legal entity capable of being sued;
(2) Plaintiff’s causes of action against Defendant Mays because all

of Plaintiff’s causes of action against him are based on alleged acts
or omissions that Plaintiff alleges are within the course and scope of
his employment with SMU; and
(3) Plaintiff’s negligence causes of action against the SMU

Defendants because there was no legal duty owed to Plaintiff
pertaining to acts or omissions which constitute medical functions
and Plaintiff’s claims are improperly cast as tort claims and should
be brought as health care liability claims under the Texas Medical
Liability Act for which the SMU Defendants have no legal liability.
ii. Alternatively, that the remaining special exceptions be sustained and

Plaintiff be required to re-plead and cure her pleading defects within seven
(7) days from the date of the Court’s order;

I:\09597\0005\14H5089.DOCX
iii. That upon final hearing hereof, Plaintiff take nothing by her claims and
causes of action against the SMU Defendants and costs of court be taxed
against Plaintiff; and
iv. The SMU Defendants be granted such other and further relief, both special
or general, at law or in equity, to which they may be justly entitled.
Respectfully submitted,
MCDONALD SANDERS,
A Professional Corporation
By: /s/Georqe C. Haratsis

George C. Haratsis
State Bar No. 08941000
gharatsis@mcdonaldlaw.com
Jennifer N. Littman
jlittman@mcdonaldla w. com
Kathy Kassabian Reid

kkassabian@mcdonald|aw.com
777 Main 2700

Street, Suite
Fort Worth, Texas 76102
(81 7) 336-8651 Telephone
(81 7) 334-0271 Facsimile
ATTORNEYS FOR THE SMU DEFENDANTS

|:\09597\0005\14H5089.DOCX
CERTIFICATE OF SERVICE
As
required by Texas Rule of Civil Procedure 21a(a)(1) or (2), hereby certify that
|
on the 30th day of March, 2020, served the foregoing document upon all other parties
|
listed below, as follows:
Timothy Micah Dortch E?

POTTS LAW FIRM, LLP Electronic E-Service
2911 Turtle Creek Blvd. U.S. Mail
Suite 1000 Certified Mail, R.R.R.
DDDDDE
Dallas,Texas 75219 Fax
Telephone: (214) 396-9427 E-Mail
Email: mdortch@potts-Iaw.com Hand Delivery
Maryssa J. Simpson E?
THE SIMPSON TUEGEL LAW FIRM, Electronic E-Service
PLLC U.S. Mail
3301 Elm St. Certified Mail, R.R.R.
DDDDDE
Dallas, Texas 75226 Fax
Telephone: (214)-774-9121 E-Mail
Email: Michelle@STF|RM.com Hand Delivery
Attorneys for Plaintiff

Dai’ja Thomas
Peter H. Anderson
KERSHAW ANDERSON, PLLC Electronic E-Service
12400 Coit Road, Suite 570 U.S. Mail
Dallas, Texas 570 Certified Mail, R.R.R.
Telephone: (214) 347-4993 mmmmmgg Fax
Email: panderson@katxlaw.com E-Mail
Hand Delivery
Attorneys for Defendant
John Baker, M.D.
/s/Georqe C. Haratsis
George C. Haratsis

|:\09597\0005\14H5089.DOCX
UNSWORN DECLARATION § 132.001 TEX. CIV. PRAC. & REM. CODE
“My name is George C. Haratsis. My date of birth is August 7, and my business address
is 777 Main St., Suite 2700, Fort Worth, Texas 76102. am an attorney for Defendants
|
Southern Methodist University, the Southern Methodist University Board of Trustees, and
Travis Mays in the above—styled and numbered cause. declare under the penalty of
I
perjury that the factual allegations related to the veriﬁed denial in paragraph IV.67.,
pursuant to Texas Rule of Civil Procedure 93(3), are true and correct based on my review
of the legal authorities, facts and information provided to me concerning the corporate
formation of SMU.”
Executed in
qu CW
Tarrant County, State of Texas, on this 29th day of March, 2020.
éorg'e C. Haratsis, Declarant.

ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION
|:\09597\0005\1 4H5089. DOCX

SMU, Travis Mays Response

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FILED

CAUSE NO. CC-20-O1053-D

DAI’JA THOMAS IN THE COUNTY COURT

SOUTHERN METHODIST UNIVERSITY,

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND

TO THE HONORABLE JUDGE OF SAID COURT:

a student—athlete at SMU during the 2017-2018 basketball season, as well as the

as a result of certain actions by Defendant Mays. In January 2019, Plaintiff claims an

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 1

ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION

and rehabilitation do not ameliorate the condition should corticosteroid therapy be

2. Plaintiff alleges the injections of local anesthetics and corticosteroids, as well

injuries and damages.

exceptions and dismiss all such claims from this lawsuit.

II. SPECIAL EXCEPTIONS

A. Special Exceptions are an Appropriate Remedy for Plaintiff’s Failure to

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 2

Moseley, 797 S.W.2d at 242.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 3

8. Plaintiff asserts eight causes of action against the SMU Board:

• Cause of Action One – Negligence and Gross Negligence

• Cause of Action Two – Negligent Hiring, Retention, Supervision, Training

• Cause of Action Three – Negligent Misrepresentation

• Cause of Action Four - Res Ipsa Loquitor

• Cause of Action Five – Vicarious Liability (Respondeat Superior)

• Cause of Action Six – Actual or Apparent Agency/Authority

• Cause of Action Nine – Fraud by Nondisclosure (Fraudulent Concealment)

• Cause of Action Ten – Negligence and Gross Negligence

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 4

Texas Business Organizations Code pertaining to directors of a non-profit Texas

university’s board liable, as a separate legal entity, under Texas law.

individual officers and directors of a corporation to be held individually liable in limited

the individual trustees of the SMU Board.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 5

N.E.2d at 585—86. The court reasoned:

[|]t would be nonsensical to hold a board of directors liable as a

capable of being sued is demonstrated by the fact that corporations

dismissed in their entirety.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 6

Neqliqence Claims Aqainst SMU, SMU Board and Defendant Mays

o Cause of Action One — Negligence and Gross Negligence

o Cause of Action Two — Negligent Hiring, Retention, Supervision, Training

o Cause of Action Three — Negligent Misrepresentation

o Cause of Action Ten — Negligence and Gross Negligence

relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 7

that special relationships include relationships between common carrier-passenger,

innkeeper-guest, premises occupier-invitee, employer-employee and parent-child

relationships). Plaintiff alleges “Defendants owed a duty to Plaintiff . . . in which Plaintiff

Defendants based on her status as a student athlete. Accordingly, all of Plaintiff’s

exists as a matter of law.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 8

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 9

Defendant Mays must be dismissed.

to implement or require procedures and/or policies on:

• how and when to refer/consult with specialists in specialized medical

• how and when pharmaceutical drugs, including local anesthetics and

appear to constitute “practicing medicine,” which is defined as the diagnosis, treatment,

or offer to treat a physical disease, disorder, or injury by a licensed physician or surgeon.

THE SMU DEFENDANTS’ SPECIAL EXCEPTIONS AND Page 10

make a medical diagnosis by evaluating a patient’s medical treatment and the

development of subsequent symptoms to conclude that a particular medical condition has

claims pertaining to complaints about medical care should be stricken.