For 263 Days from April 28, 2022 until Jan. 16, 2023 Serpe Andrews Quashed and Delayed Deposition of Dr David E. Tomaszek

DEFENDANTS DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, P.A.’S MOTION TO QUASH PLAINTIFF’S FOURTH AMENDED NOTICE OF INTENTION TO TAKE ORAL ZOOM DEPOSITION AND REQUEST FOR PRODUCTION TO DAVID E. TOMASZEK, MD

TO THE HONORABLE JUDGE OF THIS COURT:

Pursuant to Texas Rule of Civil Procedure 199.4, David E. Tomaszek, MD and Tomaszek Neurosurgical Associates, P.A. (“Defendants”) file this Motion to Quash Plaintiff’s Fourth Amended Notice of Intent to Take Oral Zoom Deposition and Request for Production to David E. Tomaszek, MD, and in support thereof, Defendants would respectfully show the Court the following:

I.

On November 15, 2022, Plaintiff served Defendants with her notice of intent to take the oral deposition of David E. Tomaszek, MD (the “Deposition Notice”) wherein Plaintiff set the

deposition for December 2, 2022. See Plaintiff’s Notice of Deposition, attached hereto as Exhibit A.

II.

Texas Rule of Civil Procedure 199.4 provides that “[a] party or witness may object to the time and place designated for an oral deposition … by motion to quash the notice of deposition.” TEX. R. CIV. P. 199.4. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined. Id. Defendants have complied with Rule 199.4 and have filed this Motion to Quash within three business days of the date of service. Therefore, in accordance with Rule 199.4 of the Texas Rules of Civil Procedure, for the reasons set forth herein, the Notice of Intention to Take Oral Deposition of Dr. Tomaszek is automatically stayed and/or quashed. Defendants object to the Deposition Notice because Dr. Tomaszek and his counsel are not available on the date noticed. Furthermore, Plaintiff unilaterally noticed this deposition on a date that was not agreed upon by counsel. Defense counsel is diligently working to secure dates the witness and counsel are available for the requested deposition and will provide them to Plaintiff upon receipt. Defense counsel remains ready and available to work out scheduling issues with Plaintiff’s counsel.

III.

For these reasons, Defendants move to quash Plaintiff’s Fourth Notice of Intention to Take Oral Zoom Deposition and Request for Production to David E. Tomaszek, MD, served November 15, 2022, and for any of such relief Defendants may be justly entitled to.

[SIGNATURE ON FOLLOWING PAGE]

Respectfully submitted,

SERPE | ANDREWS, PLLC

By: /s/Amanda M. Schramm

John Serpe
Texas Bar No. 18037400
jserpe@serpeandrews.com
Amanda M. Schramm
Texas Bar No. 24098392
aschramm@serpeandrews.com
America Tower
2929 Allen Parkway, Suite 1600
Houston, TX 77019
(713) 452-4400 – Telephone
(713) 452-4499 – Facsimile

ATTORNEYS FOR DEFENDANTS, DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, P.A.

DEFENDANTS DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, P.A.’S MOTION TO QUASH PLAINTIFF’S NOTICE OF INTENTION TO TAKE ORAL ZOOM DEPOSITION AND REQUEST FOR PRODUCTION TO DAVID E. TOMASZEK, MD

TO THE HONORABLE JUDGE OF THIS COURT:

Pursuant to Texas Rule of Civil Procedure 199.4, David E. Tomaszek, MD and Tomaszek Neurosurgical Associates, P.A. (“Defendants”) file this Motion to Quash Plaintiff’s Notice of Intent to Take Oral Zoom Deposition and Request for Production to David E. Tomaszek, MD, and in support thereof, Defendants would respectfully show the Court the following:

I.

On August 2, 2022, Plaintiff served Defendants with her notice of intent to take the oral deposition of David E. Tomaszek, MD (the “Deposition Notice”) wherein Plaintiff set the

deposition for September 16, 2022. See Plaintiff’s Notice of Deposition, attached hereto as Exhibit A.

II.

Texas Rule of Civil Procedure 199.4 provides that “[a] party or witness may object to the time and place designated for an oral deposition … by motion to quash the notice of deposition.” TEX. R. CIV. P. 199.4. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined. Id. Defendants have complied with Rule 199.4 and have filed this Motion to Quash within three business days of the date of service. Therefore, in accordance with Rule 199.4 of the Texas Rules of Civil Procedure, for the reasons set forth herein, the Notice of Intention to Take Oral Deposition of Dr. Tomaszek is automatically stayed and/or quashed. Defendants object to the Deposition Notice because Dr. Tomaszek and his counsel are not available on the date noticed. Furthermore, Plaintiff unilaterally noticed this deposition on a date that was not agreed upon by counsel. Defense counsel is diligently working to secure dates the witness and counsel are available for the requested deposition and will provide them to Plaintiff upon receipt. Defense counsel remains ready and available to work out scheduling issues with Plaintiff’s counsel.

III.

For these reasons, Defendants move to quash Plaintiff’s Notice of Intention to Take Oral Zoom Deposition and Request for Production to David E. Tomaszek, MD, served August 2, 2022, and for any of such relief Defendants may be justly entitled to.

Respectfully submitted,

SERPE | ANDREWS, PLLC

DEFENDANTS DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, P.A.’S MOTION TO QUASH PLAINTIFF’S NOTICE OF INTENT TO TAKE THE ORAL DEPOSITION OF DAVID E. TOMASZEK, MD

TO THE HONORABLE JUDGE OF THIS COURT:

Pursuant to Texas Rule of Civil Procedure 199.4, David E. Tomaszek, MD and Tomaszek Neurosurgical Associates, P.A. (“Defendants”) file this Motion to Quash Plaintiff’s Notice of Intent to Take the Oral Depositions of David E. Tomaszek, MD, and in support thereof, Defendants would respectfully show the Court the following:

I.

On June 24, 2022, Plaintiff served Defendants with her notice of intent to take the oral deposition of David E. Tomaszek, MD (the “Deposition Notice”) wherein Plaintiff set the deposition for July 27, 2022. See Plaintiff’s Notice of Deposition, attached hereto as Exhibit A.

II.

Texas Rule of Civil Procedure 199.4 provides that “[a] party or witness may object to the time and place designated for an oral deposition … by motion to quash the notice of deposition.” TEX. R. CIV. P. 199.4. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined. Id. Defendants have complied with Rule 199.4 and have filed this Motion to Quash within three business days of the date of service. Therefore, in accordance with Rule 199.4 of the Texas Rules of Civil Procedure, for the reasons set forth herein, the Notice of Intention to Take Oral Deposition of Dr. Tomaszek is automatically stayed and/or quashed. Defendants object to the Deposition Notice because his counsel and/or the witness are not available on the dates noticed. Furthermore, Plaintiff unilaterally noticed these depositions on a date that was not agreed upon by counsel. Defense counsel is diligently working to secure dates the witness and counsel are available for the requested deposition and will provide them to Plaintiff upon receipt. Defense counsel remains ready and available to work out scheduling issues with Plaintiff’s counsel.

III.

For these reasons, Defendants move to quash Plaintiff’s Notice of Intent to Take the Oral and Deposition of David E. Tomaszek, MD, and for any of such relief Defendants may be justly entitled to.

Respectfully submitted,

SERPE | ANDREWS, PLLC

DEFENDANTS DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, P.A
ANSWER TO PLAINTIFF’S ORIGINAL PETITION AND JURY DEMAND

COMES NOW Defendants David E. Tomaszek, MD and Tomaszek Neurosurgical Associates, PA (“Defendants”), incorrectly named as David E Tomaszek, MD, Individually and d/b/a Tomaszek Neurosurgical Associates, Tomaszek Neurosurgical Associates, P.A d/b/a Tomaszek Neurosurgical Associates, and file their Original Answer and Jury Demand and respectfully shows the Court as follows:

I.          GENERAL DENIAL

1.                  Pursuant to Tex. R. Civ. P. 92, Defendants generally deny each and every allegation in Plaintiff’s Original Petition and demands strict proof thereof as required by the Texas Rules of Civil Procedure, Texas Rules of Evidence, and pursuant to the laws and Constitution of the State of Texas. Defendants further reserve the right to plead further and in greater particularity as permitted by law.

II.        DISCOVERY

2.                  Defendants request that discovery in this case be conducted under Level 3 of the Texas Rules of Civil Procedure.

III.      DEFENSES

3.                  Defendants assert that this lawsuit is governed in its entirety by the provisions of Chapter 74 of the Texas Civil Practice & Remedies Code. Defendants further plead that all of Plaintiff’s claims are “health care liability claims” and Defendants are a “health care provider,” as those terms are defined in §74.001(a) of the Texas Civil Practice & Remedies Code. Defendants avail themselves of all limitations and protections set forth in Chapter 74 of the Texas Civil Practice & Remedies Code.

4.                  In the unlikely event Plaintiff are adjudged to be entitled to any damages in this matter, which Defendants deny, Defendants specifically plead and incorporates by reference all applicable caps and limitations upon any award of damages, including, but not limited to, economic, noneconomic, compensatory, and punitive damages, which are provided by law, including, but not limited to, the provisions of the Texas Civil Practice and Remedies Code. Defendants specifically plead that their liability, if any, is limited by §74.301 et. seq. of the Texas Civil Practice and Remedies Code. Plaintiff’s recovery of noneconomic damages, if any, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant. TEX. CIV. PRAC. & REM. CODE § 74.301.

5.                  Defendants assert the limitation of recovery of damages set forth in § 41.0105 of the Texas Civil Practice & Remedies Code. To the extent Plaintiff seeks recovery for medical bills,expenses, and services that were never charged to Plaintiff and, thus, were never actually paid or incurred by Plaintiff or any person or entity on Plaintiff’s behalf, Defendants are entitled to credit for any offset, adjustment, or discount from fees for services. Plaintiff may only recover medical or healthcare expenses actually paid or incurred by Plaintiff or by some person or entity on Plaintiff’s behalf. Defendants contend that Plaintiff cannot recover the total amount of medical bills which have been adjusted or “written off” by their health insurance providers or other third party sources. Defendants, therefore, contend that any and all medical expenses must be reduced by the written-off or adjusted amount as is indicated by those providers and only the adjusted amount presented to the jury at the time of the trial of this matter. TEX. CIV. PRAC. & REM. CODE § 41.0105.

6.                  In the unlikely event Plaintiff is adjudged to be entitled to any damages in this matter, which Defendants deny, Plaintiff is not entitled to recover prejudgment interest on any future damages. Defendants would show that, as a matter of law, interest on damages yet to accrue is not compensatory and is, consequently, a penalty which would be imposed even absent a finding of gross negligence, or rather, for a lesser level or degree of culpability for which a penalty is not authorized by law. See TEX. FIN. CODE § 304.1045.

7.                  Defendants assert the defense of comparative responsibility and ask the Jury to determine the percentage of responsibility of each person or entity, whether or not joined in this lawsuit, for the injuries and damages about which Plaintiff complains. Defendants plead their rights under Chapters 32 and 33 of the Texas Civil Practice and Remedies Code.

8.                  Defendants assert their rights to contribution and indemnity under the laws of the State of Texas from any other person or entity, regardless of whether a party to this lawsuit, whom the Jury finds to have caused or contributed to the injuries or damages alleged by Plaintiff.

9.                  In the unlikely event that Defendants are found liable to Plaintiff, Defendants affirmatively plead that Defendants are entitled to a credit or offset for any and all sums Plaintiff have received or may hereafter receive by way of any and all settlements.

10.              Defendants plead that the incident in issue was caused, in whole or in part, by persons, entities, instrumentalities or factors beyond the control of Defendants and for whom Defendants are not legally responsible.

11.              Plaintiff’s alleged injuries resulted from a superseding and intervening cause or a new and independent cause not presently known to Defendants and not reasonably foreseeable by Defendants which became the immediate cause of Plaintiff’s alleged injuries and/or the sole cause of the Plaintiff’s alleged injuries. Under the facts, the Court should instruct the jury on sole proximate cause, sole producing cause, and new and independent cause.

12.              Defendants would show that any injuries, damages or liabilities complained of by Plaintiff herein are the result in whole or in part of pre-existing conditions, injuries, diseases and disabilities or subsequent conditions, injuries, diseases or disabilities and are not the result of any act or omission on the part of Defendants.

13.              Defendants plead that the matters complained of by Plaintiff were, as to Defendants, wholly and completely unavoidable, and incurred without any neglect on the part of Defendants.

14.              Defendants hereby invoke the provisions of Texas Civil Practice & Remedies Code § 74.503 in the event there is an award of future damages and the Court determines the present value equals or exceeds $100,000.00. See TEX. CIV. PRAC. & REM. CODE §§ 74.502, 74.503.

15.              Pleading further and in the alternative, Defendants contend that with respect to all claims seeking punitive or exemplary damages, Defendants would show that such damages are inappropriate and impermissible under the law due to the following:

a)                  Punitive or exemplary damages are criminal, or quasi-criminal in nature, and Plaintiff should be required to prove the basis of such damages beyond a reasonable doubt and the failure to require the same is a denial of due process under law and a denial of equal protection of the law as prescribed under the United States Constitution and the Constitution of the State of Texas.

b)                  An award of punitive or exemplary damages would constitute a taking of property without due process of law as guaranteed by the United States Constitution and the Constitution of the State of Texas.

c)                  It is a denial of due process of law and of equal protection of the law under the United States Constitution and the Constitution of the State of Texas to permit a corporation to be vicariously liable for punitive or exemplary damages which were awarded on the basis of alleged acts or omissions of employees, agents, representatives, of the corporation under the doctrine of respondeat superior or any other vicarious liability doctrine.

d)                  Punitive and/or exemplary damages constitute an unjust enrichment by reason of the unconstitutional taking of property without due process of law as provided under the United States Constitution and the Constitution of the State of Texas.

e)                  Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous on its face as well as in its application, that it denies Defendant due process of law and equal protection of the law as provided under the United States Constitution and the Constitution of the State of Texas.

f)                   Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous that it prevents courts and juries from consistently applying the law, and therefore, further prevents effective judicial review of any such punitive damages awards.

g)                  Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous that the basis of such damages cannot be clearly and readily ascertained in advance so as guide the behavior of individuals in the their actions, thus constituting an EX-POST FACTO law specifically prohibited by the United States Constitution and the Constitution in the State of Texas.

h)                  An award of punitive and exemplary damages violates the excessive fines clause of the Eighth Amendment as applied to the Fourteenth Amendment of the United States Constitution.

i)                   The defendant who is subject to the award does not have the right to refuse to testify against him/her/itself but must in fact take the stand and/or give deposition testimony or subject him/her/itself to the consequences of a default judgment.

16.              Pleading in the alternative, should such be necessary, Defendants affirmatively alleges that, in the unlikely event that the jury awards Plaintiff exemplary or punitive damages, the damages are subject to the limitations contained in sections 41.007, 41.008, 41.010, 41.011 and 41.012 of the Texas Civil Practice and Remedies Code.

IV.       PLEADINGS AND AMENDMENT THEREOF

17.              Please take notice that pursuant to Texas Rules of Civil Procedure 84 and 85, to the extent that defenses, other than the General Denial, pleaded in this Original Answer are in conflict, they are pleaded in the alternative.

18.              Defendants respectfully reserve the right to file an amended Answer in this case in the matter authorized by Texas Rules of Civil Procedure 63 and 66.

V.        DEMAND FOR JURY TRIAL

19.              Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Defendants respectfully demand trial by jury; the requisite fee for same has been paid.

VI.       NOTICE OF DOCUMENTS TO BE USED AT TRIAL

20.              Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Defendants hereby give notice to Plaintiff that any and all documents produced in response to written discovery may be used as evidence in this case; and, that any such materials may be used as evidence against the party producing the document at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating the document and/or materials produced in discovery.

VII.      REQUEST FOR DEPOSITION OF PLAINTIFF

19.  After Plaintiffs have fully responded to discovery, including initial disclosures under 194.2 of the Texas Rules of Civil Procedure, Defendants hereby request the deposition of Plaintiff, Leslie Miller.

VIII.    PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants David E. Tomaszek, MD, and Tomaszek Neurosurgical Associates, P.A pray that Plaintiff take nothing by reason of this suit and that Defendants recover their costs, and for such other and further relief to which it is justly entitled.

Respectfully submitted,

Serpe, Jones, Andrews, Callender & Bell, Pllc
By:  /s/ John S. Serpe

John S. Serpe
Texas Bar No. 18037400
jserpe@serpejones.com
Allison T. Long
Texas Bar No. 24106492
along@serpejones.com

America Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone:  (713) 452-4400
Facsimile:     (713) 452-4499

ATTORNEYS FOR DEFENDANTS, DAVID E. TOMASZEK, MD AND TOMASZEK NEUROSURGICAL ASSOCIATES, PA