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Filed 5/7/2019 2:30 PM

Barbara Sucsy
District Clerk
Lubbock County, Texas
ARG

CAUSE NO. 2019534246

TITA SENEE GRAVES, § IN THE 72ND DISTRICT COURT


§
Plaintiff §
§
vs. § IN AND FOR
§
NAAG PATHOLOGY LABS, §
PC, EVAN WILLIAM MATSHES, §
MD; and SAM ANDREWS, MD, §
§
Defendants. § LUBBOCK COUNTY, TEXAS

DEFENDANTS’ MOTION TO DISMISS

TO THE HONORABLE DISTRICT COURT:

Come now, NAAG PATHOLOGY LABS, PC, EVAN MATSHES, M.D., and

SAM ANDREWS, M.D., and file this Motion to Dismiss Plaintiff’s Original Petition

and all claims and causes of action contained therein pursuant to section 27.003 of

the Texas Civil Practice and Remedies Code, known as the Texas Citizens

Participation Act (TCPA).

The defendants move to be awarded all court costs, reasonable attorney’s fees,

and other expenses, and request the opportunity to present evidence of these costs,

fees, and expenses. Defendants also move for appropriate sanctions against the

plaintiff to deter her from bringing similar actions pursuant to section 27.009 of the

TCPA. In support of their motion to dismiss, the defendants would respectfully show

this Court the following:

DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147433v1


I.
PROCEDURAL REQUIREMENTS

A party may seek dismissal of a legal action under the TCPA by filing a

motion to dismiss not later than the 60th day after the date of service of the legal

action. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) (West 2015). Graves filed

her original petition on February 20, 2019. Plt.’s Orig. Pet. (on file with this Court).

NAAG Pathology Labs, PC was served on March 8; Dr. Matshes was served on

March 18; Dr. Andrews was served on March 11. See Return of Service (on file with

this Court). Because this motion is filed within sixty days of the date of service, it is

timely. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). The filing of this motion

stays all discovery until the Court rules on the motion. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.003(c)

Once a party files a motion to dismiss under the TCPA, the Court must set a

hearing date within 60 days unless docket conditions require a later hearing, good

cause is shown, or the parties agree otherwise. Tex. Civ. Prac. & Rem. Code Ann. §

27.004(a) (West 2015). The hearing must occur within 90 days after the motion is

served, however, regardless of docket conditions, good cause, or agreement. Tex.

Civ. Prac. & Rem. Code Ann. § 27.004(a). After the hearing, the Court must rule on

the motion within 30 days. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(a) (West

2015).

DEFENDANTS’ MOTION TO DISMISS – PAGE 2 147433v1


II.
SUMMARY OF THE ARGUMENT

The present suit is subject to the Texas Citizens Participation Act because it

is based on, related to, or in response to these defendants’ exercise of the right of

free speech and the exercise of the right of association as defined by the statute. As

such, Graves is required to meet certain statutory requirements to avoid dismissal.

Because she is not able to do so, her suit against these defendants should be

dismissed. In particular, Graves cannot establish by clear and specific evidence a

prima facie case for each essential element of her claim for tortious interference.

Moreover, even if Graves could establish her causes of action as required by

the statute, these defendants have demonstrated they are entitled to the affirmative

defenses of official immunity, qualified privilege, and justification. Further, Dr.

Matshes is not liable individually for the acts of NAAG. Accordingly, dismissal of

this legal action is required.

III.
FACTUAL BACKGROUND

A. NAAG provides medical examiner services to Lubbock County.

Dr. Evan Matshes is the managing director of NAAG Pathology Labs, PC and

the managing member of National Autopsy Assay Group LLC. Ex. A, Matshes

Affidavit, ¶¶ 1-2. Dr. Sam Andrews and Dr. Matshes are employees of National

DEFENDANTS’ MOTION TO DISMISS – PAGE 3 147433v1


Autopsy Assay Group LLC, but they are subcontracted to NAAG. Ex. A, Matshes

Affidavit, ¶ 2; Ex. B, Andrews Affidavit, ¶ 2.

In a contract with Lubbock County, NAAG agreed to provide the services of

an Interim or Acting Chief Medical Examiner. Ex. A, Matshes Affidavit, ¶¶ 3-4; Ex.

B, Andrews Affidavit, ¶ 3; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. In August of

2018, Dr. Andrews was appointed the Interim Acting Chief Medical Examiner

pursuant to section 49.25 of the Texas Code of Criminal Procedure. Ex. B, Andrews

Affidavit, ¶ 3 and Ex. 2; Ex. C, Garcia Affidavit, ¶ 12. NAAG also agreed to provide

the administrative support necessary for Dr. Andrews to serve as Interim Chief

Medical Examiner. Ex. A, Matshes Affidavit, ¶ 3.

Afterwards, NAAG entered into a second contract with Lubbock County to

provide comprehensive “full spectrum” death investigation services, including

executive oversight functions typical of a Chief Medical Examiner and oversight

administrative functions typical of the Chief Administrative Officer and Department

Head or Section Leader. Ex. A, Matshes Affidavit, ¶ 4 and Ex. 1; Ex. B, Andrews

Affidavit, ¶ 4. Under the contract, the County is responsible for the cost related to

employment of support staff including autopsy technicians and death investigators.

Ex. A, Matshes Affidavit, ¶ 4. Further, NAAG provides death investigation services

pursuant to the contract with Lubbock County under chapter 49 of the Texas Code

of Criminal Procedure. Ex. A, Matshes Affidavit, ¶ 5.

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Under that contract, Dr. Andrews was appointed the Chief Medical Examiner

on December 21, 2018. Ex. A, Matshes Affidavit, ¶ 4; Ex. B, Andrews Affidavit, ¶¶

2, 4 and Ex. 2; Ex. C, Garcia Affidavit, ¶ 16. During all times relevant to this suit,

Dr. Andrews served as the Interim Chief Medical Examiner or Chief Medical

Examiner for Lubbock County. Ex. B, Andrews Affidavit, ¶ 2. He also served as the

Department Head for the Lubbock County Medical Examiner’s office. Ex. B,

Andrews Affidavit, ¶ 2. Dr. Andrews was the immediate supervisor of Graves at all

relevant times. Ex. B, Andrews Affidavit, ¶ 2.

B. Graves’ Employment

Graves was an employee of Lubbock County in the Medical Examiner’s office

when Dr. Andrews became the Interim Chief Medical Examiner. Ex. B, Andrews

Affidavit, ¶ 5. After NAAG began operating the Medical Examiner’s office under

the contract, Graves continued to be employed as a death investigator. Ex. A,

Matshes Affidavit, ¶ 6. Graves was an employee of Lubbock County, not NAAG,

until her termination in January of 2019. Ex. A, Matshes Affidavit, ¶ 6. Dr. Andrews,

however, is responsible for the administration and operation of the Medical

Examiner’s office and has supervisory authority over Lubbock County employees

working in the Medical Examiner’s office. Ex. B, Andrews Affidavit, ¶ 7.

In her petition, Graves alleges that the defendants induced Lubbock County

to terminate her employment because she reported suspicious and potentially illegal

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activity in the medical examiner’s office. Ex. D, Plt.’s Orig. Pet., ¶ 9. She alleges

that Dr. Matshes established a protocol at the Medical Examiner’s office requiring

the taking of more tissue than necessary during child autopsies for his own personal

research. Ex. D, Plt.’s Orig. Pet., ¶ 13, ¶ 18. Graves took photographs during one of

the autopsies and sent them to Dr. Pustilnik, a physician who had at times done

contract work for the Medical Examiner’s office. Ex. D, Plt.’s Orig. Pet., ¶16. She

also contacted an employee at the Lubbock Police Department and a Lubbock

County Commissioner to express her concerns. Ex. D, Plt.’s Orig. Pet., ¶¶ 20-21.

Representatives of Lubbock County raised concerns that confidential

information about matters in the Medical Examiner’s office was being

inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews

Affidavit, ¶ 6. Because the duties of the Medical Examiner’s office routinely involve

potential criminal investigations, the leak of confidential information about cases

pending in the Medical Examiner’s office was of great concern to Lubbock County

and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

Graves’ employment was terminated on January 17, 2019. Ex. D, Plt.’s Orig.

Pet., ¶¶ 23-24. Lubbock County made the decision to terminate Graves, and Dr.

Andrews notified her of the termination in his role as Chief Medical Examiner for

Lubbock County and as the Department Head for the Medical Examiner’s office.

Ex. B, Andrews Affidavit, ¶ 7.

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Dr. Matshes communicated with Assistant District Attorneys and the Human

Resources Director about Graves. Ex. A, Matshes Affidavit, ¶ 7. All his

communications with representatives of Lubbock County related to Graves involved

the proper operation of the Medical Examiner’s office in connection with NAAG’s

duties under the contract with Lubbock County to provide administrative oversight.

Ex. A, Matshes Affidavit, ¶ 7. Likewise, all communications of Dr. Andrews with

representatives of Lubbock County related to Graves involved the proper operation

of the Medical Examiner’s office and were in the performance of his duties as Chief

Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6.

Further, all of Dr. Matshes’ communications with representatives of Lubbock

County related to Graves were in the course and scope of his employment with

NAAG. Ex. A, Matshes Affidavit, ¶ 8. All of Dr. Matshes and Dr. Andrews’

communications with any representative of Lubbock County regarding Graves were

made in good faith in a belief that the statements were true, the statements were

appropriate in connection with the proper operation of the Medical Examiner’s

office pursuant to the contract, and that the communications of those statements were

in the best interest of Lubbock County. Ex. A, Matshes Affidavit, ¶ 9; Ex. B,

Andrews Affidavit, ¶ 8.

DEFENDANTS’ MOTION TO DISMISS – PAGE 7 147433v1


IV.
EVIDENCE

The TCPA requires a court to consider the pleadings and supporting and

opposing affidavits filed by the parties before ruling on a motion to dismiss. Tex.

Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015). Accordingly, the defendants

submit the following for the Court’s consideration:

Exhibit Document

A Affidavit of Dr. Evan Matshes, with attached exhibits

B Affidavit of Dr. Sam Andrews, with attached exhibits

C Affidavit of Sandra Garcia

D Plaintiffs’ Original Petition

E Defendants’ Original Answer

V.
ARGUMENTS AND AUTHORITIES

The determination of a TCPA motion to dismiss is a three-step analysis.

Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the movant must show

by a preponderance of the evidence that the TCPA applies to the legal action against

it. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015); Youngkin, 546

S.W.3d at 679. Second, if the movant meets its burden, the nonmovant must establish

by clear and specific evidence a prima facie case for each essential element of its

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claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Youngkin, 546 S.W.3d at 679.

Third, if the nonmovant satisfies that requirement, the burden then shifts back to the

movant to prove each essential element of any valid defenses by a preponderance of

the evidence. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546 S.W.3d

at 679-80.

A. The TCPA applies.

The TCPA applies if the legal action is “based on, relates to, or is in response

to” the movant’s “exercise of the right of free speech, right to petition, or right of

association.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2014). Here, the

TCPA applies because Graves’ suit is based on, related to, and in response to the

defendants’ exercise of the right to free speech and the exercise of the right of

association.

1. Exercise of the Right of Free Speech

The statutory definition of the “exercise of the right of free speech” is not fully

coextensive with the constitutional free-speech right protected by the First

Amendment. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex.

2018). Rather, the statute defines the “exercise of the right of free speech” as a

“communication made in connection with a matter of public concern.” Tex. Civ.

Prac. & Rem. Code Ann. 27.001(3) (West 2015). Under the statute then, a right of

free speech has two components: (1) the exercise must be made in a communication

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and (2) the communication must be made in connection with a matter of public

concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).

A “communication” is broadly defined, and “includes the making or

submitting of a statement or document in any form or medium.” Tex. Civ. Prac. &

Rem. Code Ann. § 27.001(1) (West 2014); Youngkin, 546 S.W.3d at 680. The plain

language of the statute does not impose any requirement that the form of the

communication be public. Lippincott, 462 S.W.3d at 509. Thus, both public and

private communications are within the scope of the definition. Lippincott, 462

S.W.3d at 509. The TCPA applies to protect employers in actions related to

communications made by their employees and agents. See ExxonMobil Pipeline Co.

v. Coleman, 512 S.W.3d 895, 899-900 (Tex. 2017).

Next, courts determine whether the communication was made in connection

with a matter of public concern. Lippincott, 462 S.W.3d at 509. A “matter of public

concern” includes, among other things, an issue related to health and safety,

community well-being, the government, and a public official. Tex. Civ. Prac. &

Rem. Code Ann. § 27.001(7). The TCPA does not require the statement specifically

mention the statutory public concern. ExxonMobil Pipeline Co., 512 S.W.3d at 900.

Nor does the statute require more than a tangential relationship between the

communication and the public concern. ExxonMobil Pipeline Co., 512 S.W.3d at

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900. Rather, the communication need only be “in connection with” the identified

matters of public concern. ExxonMobil Pipeline Co., 512 S.W.3d at 900.

The TCPA applies here. First, Dr. Matshes communicated with the Assistant

District Attorneys and the Human Resources Director about Graves. Ex. A, Matshes

Affidavit, ¶ 7. Dr. Andrews also had communications with representatives of

Lubbock County related to Graves. Ex. B, Andrews Affidavit, ¶ 7. Therefore, there

is a “communication” under the statute. See Tex. Civ. Prac. & Rem. Code Ann. §

27.001(1) (West 2014); Youngkin, 546 S.W.3d at 680.

Second, the communications were made in connection with a matter of public

concern. See Lippincott, 462 S.W.3d at 509. The communications were with regard

to issues of safety and community well-being because the defendants were

concerned that confidential information about on-going criminal investigations was

being inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B,

Andrews Affidavit, ¶ 6. Further, these communications were made in connection

with the government because they concerned the actions of a Lubbock County

employee as well as in connection with a public official, namely, the Chief Medical

Examiner. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7).

Accordingly, the communications of Dr. Matshes and Dr. Andrews to either

the district attorney’s office, the human resources department, or Lubbock County

representatives are all communications on a matter of public concern. See Ex. A,

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Matshes Affidavit, ¶ 4; Ex. B, Andrews Affidavit, ¶¶ 2, 4, 7. Accordingly, the

defendants exercised their right to free speech. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.001(3). Graves’ suit is based on, related to, and in response to that exercise

of the right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The

TCPA, therefore, is applicable. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).

2. Right of Association

The TCPA also applies to this legal action because it is based on the

defendants’ right of association. The TCPA defines the “exercise of the right of

association” as “a communication between individuals who join together to

collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac.

& Rem. Code Ann. § 27.001(2).

Here, the communications between Dr. Matshes and the human resources

department and the district attorney’s office, as well as Dr. Andrews’

communications with representatives of Lubbock County, constitute the right of

association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). NAAG, Dr.

Andrews, Dr. Matshes and representatives of Lubbock County joined together to

promote, pursue, and defend a common interest, namely the appropriate and

confidential investigation of criminal cases. See Ex. A, Matshes Affidavit, ¶ 7; Ex.

B, Andrews Affidavit, ¶ 6. Thus, the communications here also constitute the

exercise of the right of association. See Tex. Civ. Prac. & Rem. Code Ann. §

DEFENDANTS’ MOTION TO DISMISS – PAGE 12 147433v1


27.001(2). Graves’ suit is based on, related to, and in response to that exercise of the

right to association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The TCPA,

therefore, applies to this suit. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).

B. Prima Facie Case

Once a court determines the TCPA is applicable, the burden shifts to the

nonmovant to establish by “clear and specific evidence a prima facie case for each

essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code Ann. §

27.005(c). The word “clear” means “unambiguous,” “sure,” or “free from doubt.” In

re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The word “specific” means “explicit”

or “relating to a particular named thing.” In re Lipsky, 460 S.W.3d at 590.

A “prima facie case” refers to evidence sufficient as a matter of law to

establish a given fact if it is not rebutted or contradicted. In re Lipsky, 460 S.W.3d

at 590. It is the minimum quantum of evidence needed to support a rational inference

that an allegation of fact is true. In re Lipsky, 460 S.W.3d at 590. Although the TCPA

initially demands more information about the underlying claim, it does not impose

an elevated evidentiary standard or categorically reject circumstantial evidence. In

re Lipsky, 460 S.W.3d at 591.

The TCPA requires “element-by-element, claim-by-claim exactitude” to

make a prima facie case. Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520

S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d). Conclusory allegations and

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evidence are insufficient. See Lipsky, 460 S.W.3d at 592-93. Instead, the plaintiff

must provide enough detail to show the factual basis for her claim. Lipsky, 460

S.W.3d at 591.

Graves brings a single claim against the defendants for tortious interference

with her employment contract. Ex. D, Plt.s’ Orig. Pet., ¶ 24. To prevail on a claim

for tortious interference with a contract, a plaintiff must show: (1) an existing

contract subject to interference, (2) a willful and intentional act of interference with

the contract, (3) that proximately caused the plaintiff’s injury, and (4) that caused

actual damages or loss. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc.,

29 S.W.3d 74, 77 (Tex. 2000); Abraham v. Ryland Mortg. Co., 995 S.W.2d 890, 895

(Tex. App.—El Paso 1999, no pet.).

To satisfy the second element of “a willful and intentional act of interference,”

a party must be more than a willing participant; rather, it must knowingly induce one

of the contracting parties to breach its obligations. John Paul Mitchell Sys. v.

Randalls Food Mkts., Inc., 17 S.W.3d 721, 730 (Tex. App.—Austin 2000, pet.

denied). A necessary element of the plaintiff’s cause of action is a showing that the

defendant took an active part in persuading a party to breach its contract. John Paul

Mitchell Sys., 17 S.W.3d at 731. Inducing a contract obligor to do what it has a right

to do under the contract, however, is ordinarily not actionable interference. ACS

Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

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To satisfy the third element of a claim for tortious interference with an existing

contract, a plaintiff must show that the interference proximately caused the

plaintiff’s injury. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000). The proximate-cause tests for cause-in-fact and

foreseeability apply to claims of tortious interference. Richardson-Eagle, Inc. v.

William M. Mercer, Inc., 213 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). Cause-in-fact requires proof that (1) the act was a substantial

factor in bringing about the harm at issue, and (2) absent the act, the harm would not

have occurred. HMC Hotel Props. II Ltd. P’ship v. Keystone-Texas Prop. Holding

Corp., 439 S.W.3d 910, 913 (Tex. 2014). Establishing causation requires that the

plaintiff bring forth sufficient facts so that the evidence, and the logical inference

that can be drawn from the evidence, support a reasonable probability that the

defendant’s acts or omissions were a substantial factor in bringing about the injury.

Richardson-Eagle, Inc., 213 S.W.3d at 474. These elements cannot be established

by conjecture, guess, or speculation. HMC Hotel Props. II Ltd. P’ship, 439 S.W.3d

at 913.

Here, Graves does not have clear and specific evidence of the elements of a

prima facie case for tortious interference with her employment contract. First, there

was no willful or intentional act of interference with the contract because Defendants

did not induce Lubbock County to breach a contract with Graves. See John Paul

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Mitchell Sys., 17 S.W.3d at 730. Inducing a contract obligor to do what it has a right

to do under the contract is ordinarily not actionable interference. ACS Inv’rs, Inc.,

943 S.W.2d at 430.

Representatives of Lubbock County raised concerns that confidential

information about matters in the Medical Examiner’s office were being

inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews

Affidavit, ¶ 6. Because the duties of the Medical Examiner’s office routinely involve

potential criminal investigations, the leak of confidential information about cases

pending in the Medical Examiner’s office was of great concern to both Lubbock

County and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

The affidavits demonstrate that Lubbock County raised these concerns about the leak

of confidential information. See Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews

Affidavit, ¶ 6. Moreover, firing Graves for an admitted publication of confidential

information does not amount to a breach of contract by Lubbock County. See Ex. D,

Plt.’s Orig. Pet., ¶ 16.

Moreover, all communications Dr. Matshes had with representatives of

Lubbock County related to Graves involved the proper operation of the Medical

Examiner’s office in connection with NAAG’s duties under the contract with

Lubbock County to provide administrative oversight. Ex. A, Matshes Affidavit, ¶ 7.

Further, all of Dr. Matshes’ communications with representatives of Lubbock

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County related to Graves were in the course and scope of his employment with

NAAG. Ex. A, Matshes Affidavit, ¶ 8. Similarly, all communications of Dr.

Andrews with representatives of Lubbock County related to Graves involved the

proper operation of the Medical Examiner’s office and were in the performance of

his duties as Chief Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6. Accordingly,

there is not clear and specific evidence to establish a prima facie case that either Dr.

Matshes or Dr. Andrews, individually, tortiously interfered with Graves’ contract.

Because there is no evidence sufficient to establish a willful and intentional

interference with Graves’ employment contract, Graves cannot by clear and specific

evidence establish a prima facie case for tortious interference as to NAAG, Dr.

Matshes, or Dr. Andrews. See John Paul Mitchell Sys., 17 S.W.3d at 730.

Further, Graves cannot establish a prima facie case that NAAG, Dr. Matshes,

or Dr. Andrews, proximately caused her injury or damages. Rather, the evidence

demonstrates that Lubbock County, independently of any acts or communications

by the defendants, had concerns that confidential information about matters in the

Medical Examiner’s office were being inappropriately or illegally disclosed. Ex. A,

Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. Accordingly, there is not clear

and specific evidence that NAAG, Dr. Matshes, or Dr. Andrews were the proximate

cause of Graves’ alleged injury or damages.

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Because Graves cannot establish by clear and specific evidence a prima facie

case for the second, third, and fourth elements of her claim for tortious interference

with an employment contract, her legal action against these defendants should be

dismissed. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).

C. The defendants have established defenses to the legal action.

Even if Graves has brought forth clear and specific evidence to establish a

prima facie case, dismissal is still appropriate because the defendants have brought

forth evidence to prove each essential element of valid defenses by a preponderance

of the evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546

S.W.3d at 679-80.

1. Official Immunity

Official immunity is a common law defense that protects government officers

from personal liability in performing discretionary duties in good faith within the

scope of their authority. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Medical

examiners are entitled to official immunity. Putthoff v. Ancrum, 934 S.W.2d 164,

169-70 (Tex. App.—Fort Worth 1996, writ denied).

Moreover, a private party can assert official immunity if the private party

contracts with a public official to perform governmental duties. Guerrero v. Tarrant

County Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998,

pet. denied) (holding a private company contracting with the medical examiner’s

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office to perform a governmental duty was entitled to assert the defense of official

immunity); Putthoff, 934 S.W.2d at 169 n.7 (finding official immunity extends to a

private party under contract with the county to perform functions of the medical

examiner’s office).

One is entitled to official immunity from suit arising out of the performance

of (1) discretionary duties; (2) in good faith; (3) when acting within the scope of his

authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994);

Guerrero, 977 S.W.2d at 832. If, however, the acts of an official are not lawfully

authorized, then a suit against him is not a suit against the State, and the individual

is not immune. Guerrero, 977 S.W.2d at 832.

a. Defendants’ actions were discretionary.

Official immunity extends to an action or decision that is discretionary, while

ministerial acts do not receive protection. Kassen, 887 S.W.2d at 9. Ministerial acts

are those that the law prescribes and defines the duties to be performed with such

precision and certainty that nothing is left to the exercise of discretion or judgment.

City of Lancaster, 883 S.W.2d at 654. But, when the act to be done involves the

exercise of discretion or judgment, it is not ministerial. City of Lancaster, 883

S.W.2d at 654. If an action involves personal deliberation, decision, and judgment,

then it is discretionary. City of Lancaster, 883 S.W.2d at 654.

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Here, Lubbock County made the decision to terminate Graves, and Dr.

Andrews notified her of that termination in his role as Chief Medical Examiner and

as Department Head. Ex. B, Andrews Affidavit, ¶ 7. Such an act involves

deliberation, decision, and the exercise of judgment. City of Lancaster, 883 S.W.2d

at 654. Accordingly, the decision to terminate Graves’ employment is a discretionary

act, not a ministerial one.

Moreover, Dr. Andrews was acting as Chief Medical Examiner and had

oversight administrative functions pursuant to a contract NAAG had with Lubbock

County when he informed Graves of her termination. Ex. A, Matshes Affidavit, ¶ 4;

Ex. B, Andrews Affidavit, ¶ 4. Such administrative functions pursuant to the NAAG

contract involved Dr. Andrew’s discretion. Moreover, Dr. Matshes’

communications with representatives of Lubbock County related to Graves were in

the course and scope of his employment with NAAG. Ex. A, Matshes Affidavit, ¶ 8.

Each of these defendants, therefore, meets the first element of a defense of official

immunity. See City of Lancaster, 883 S.W.2d at 653.

b. The defendants acted in good faith.

Good faith in official immunity is measured by objective legal reasonableness.

City of Lancaster, 883 S.W.2d at 656. The good faith prong of official immunity is

met when a defendant shows that a reasonably prudent person in the same of similar

circumstances would have taken the same actions. Guerrero, 977 S.W.2d at 834. To

DEFENDANTS’ MOTION TO DISMISS – PAGE 20 147433v1


controvert the defendant’s evidence, the plaintiff must do more than show a

reasonably prudent person would not have taken the same action. Guerrero, 977

S.W.2d at 834. Instead, the plaintiff must show that no reasonable person in the

defendant’s position could have thought the facts justified the defendant’s actions.

Guerrero, 977 S.W.2d at 834. The trial court must focus on the reasonableness of

what the defendant could have believed and not what a reasonably prudent person

would have done. Guerrero, 977 S.W.2d at 834. “In other words, controverting

evidence on good faith cannot be based on a general negligence standard.” Guerrero,

977 S.W.2d at 834.

Here, both Dr. Matshes and Dr. Andrews acted in good faith. All of Dr.

Matshes and Dr. Andrews’ communications with any representative of Lubbock

County regarding Graves were made in good faith in a belief that the statements

were true, the statements were appropriate in connection with the proper operation

of the Medical Examiner’s office pursuant to the contract with NAAG, and that the

communications of those statements were in the best interest of Lubbock County.

Ex. A, Matshes Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶ 8. Because the defendants

here acted in good faith, the second prong of official immunity has been met. See

Guerrero, 977 S.W.2d at 834.

c. The defendants acted in the scope of their authority.

DEFENDANTS’ MOTION TO DISMISS – PAGE 21 147433v1


Finally, an official must be acting within the scope of his authority in order

for a court to find him immune from suit. City of Lancaster, 883 S.W.2d at 658. An

official acts within the scope of his authority if he is discharging duties generally

assigned to him. City of Lancaster, 883 S.W.2d at 658.

Here, all actions of both Dr. Andrews and Dr. Matshes with regard to the

Lubbock County Medical Examiner’s office were performed in connection with

their employment duties with NAAG and its contract with Lubbock County. Ex. A,

Matshes Affidavit, ¶¶ 3-4; Ex. B, Andrews Affidavit, ¶¶ 3-4, ¶ 7 (Dr. Andrews has

supervisory authority over Graves); see also, Ex. C, Garcia Affidavit, ¶¶ 13-16.

Further, all of Dr. Matshes’ communications with representatives of Lubbock

County related to Graves were in the course and scope of his employment with

NAAG. Ex. A, Matshes Affidavit, ¶ 8. Because the defendants here were acting

within the scope of their authority, they have met the third requirement for a court

to find them immune from suit. City of Lancaster, 883 S.W.2d at 658.

The defendants have demonstrated all three elements necessary to establish

the defense of official immunity by a preponderance of the evidence. See Tex. Civ.

Prac. & Rem. Code Ann. § 27.005(d). Moreover, because of NAAG’s duties under

its contract with Lubbock County to provide oversight administrative functions,

official immunity for the actions of Dr. Andrews extends to Dr. Matshes and NAAG.

See Putthoff v. Ancrum, 934 S.W.2d 164, 169-70 (Tex. App.—Fort Worth 1996, writ

DEFENDANTS’ MOTION TO DISMISS – PAGE 22 147433v1


denied) (medical examiner is entitled to immunity); Guerrero v. Tarrant County

Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998, pet.

denied) (holding a private company contracting with the Medical Examiner’s Office

to perform a governmental duty was entitled to assert the defense of official

immunity).

As the defendants have met all three elements, they have demonstrated by a

preponderance of the evidence their entitlement to official immunity. See City of

Lancaster, 883 S.W.2d at 653. Accordingly, even if Graves has established a prima

facie case, the case should be dismissed because these defendants are entitled to the

affirmative defense of official immunity. See Tex. Civ. Prac. & Rem. Code Ann. §

27.005(d).

2. Qualified Privilege

A defendant enjoys a qualified privilege when a communication is made in

good faith and the author, recipient, or a third person has an interest that is

sufficiently affected by the communication. Burbage v. Burbage, 447 S.W.3d 249,

254 (Tex. 2014). The privilege applies when the speaker has a common interest with

the other person, or with reference to a subject in which the speaker has a duty to

communicate to the other person. Levine v. Steve Scharn Custom Homes, Inc., 448

S.W.3d 637, 648 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). “A qualified

privilege attaches to statements made under circumstances in which any one of

DEFENDANTS’ MOTION TO DISMISS – PAGE 23 147433v1


several persons having a common interest in a particular subject matter may

reasonably believe that facts exist that another, sharing that common interest, is

entitled to know.” Holloway v. Tex. Med. Ass’n, 757 S.W.2d 810, 813 (Tex. App.—

Houston [1st Dist.] 1988, writ denied).

A party claiming a qualified privilege must use the privilege in a lawful

manner and for a lawful purpose. Iroh v. Igwe, 461 S.W.3d 253, 264 (Tex. App.—

Dallas 2015, pet. denied). The communication must be without malice. Iroh, 461

S.W.3d at 264. Once the privilege is established, therefore, it falls on Ortiz to prove,

with clear and specific evidence, that the defendant made the statements with actual

malice. See Burbage, 447 S.W.3d at 254. Actual malice is a statement made with

knowledge of its falsity or with reckless disregard for the truth. Saudi v. Brieven,

176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Where a

statement is qualifiedly privileged, the law presumes good faith and a want of malice.

See Holloway, 757 S.W.2d at 814. Further, an uncontroverted affidavit indicating

the statements at issue were not made with malice is sufficient to negate malice as a

matter of law. See Saudi, 176 S.W.3d at 118.

Here, representatives of Lubbock County raised concerns that confidential

information about matters in the Medical Examiner’s office were being

inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews

Affidavit, ¶ 6. Because the duties of the Medical Examiner’s office routinely involve

DEFENDANTS’ MOTION TO DISMISS – PAGE 24 147433v1


potential criminal investigations, the leak of confidential information about cases

pending in the Medical Examiner’s office was of great concern to Lubbock County

and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

Dr. Matshes communicated with Assistant District Attorneys and the Human

Resources Director about Graves. Ex. A, Matshes Affidavit, ¶ 7. All

communications Dr. Matshes had with representatives of Lubbock County related

to Graves involved the proper operation of the Medical Examiner’s office in

connection with NAAG’s duties under the contract with Lubbock County to provide

administrative oversight. Ex. A, Matshes Affidavit, ¶ 7. Likewise, all

communications of Dr. Andrews with representatives of Lubbock County related to

Graves involved the proper operation of the Medical Examiner’s office and were in

the performance of his duties as Chief Medical Examiner. Ex. B, Andrews Affidavit,

¶ 6. Further, all of Dr. Matshes’ communications with representatives of Lubbock

County related to Graves were in the course and scope of his employment with

NAAG. Ex. A, Matshes Affidavit, ¶ 8.

NAAG, Dr. Matshes, Dr. Andrews, and the representatives of Lubbock

County had a common interest in information pertaining to on-going criminal

investigations remaining confidential. All of these parties were concerned about the

confidential information leaks and had an interest in ensuring the problem stopped.

Because there was a common interest among the defendants and the representatives

DEFENDANTS’ MOTION TO DISMISS – PAGE 25 147433v1


of Lubbock County that was sufficiently affected by the communications regarding

Graves and her employment, the qualified privilege applies here. See Burbage, 447

S.W.3d at 254.

Moreover, the defendants have demonstrated they did not act with malice, but

rather in good faith. See Burbage, 447 S.W.3d at 254. All of Dr. Matshes and Dr.

Andrews’ communications with any representative of Lubbock County regarding

Graves were made in good faith in a belief that the statements were true, the

statements were appropriate in connection with the proper operation of the Medical

Examiner’s office pursuant to the contract, and that the communications of those

statements were in the best interest of Lubbock County. Ex. A, Matshes Affidavit, ¶

9; Ex. B, Andrews Affidavit, ¶ 8.

Accordingly, even if Graves has established a prima facie case, the case

should be dismissed because these defendants are entitled to a qualified privilege to

make the communication. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).

3. The defendants had a privilege to interfere with the contract.

A party cannot recover for tortious interference if the interference was

privileged. Gillum v. Republic Health Corp., 778 S.W.2d 558, 566 (Tex. App.—Dallas

1989, no writ). One is privileged to interfere with another’s contract when he does so

in the bona fide exercise of his own rights or when he has an equal or superior right in

the subject matter to that of the other party. Sterner v. Marathon Oil Co., 767 S.W.2d

DEFENDANTS’ MOTION TO DISMISS – PAGE 26 147433v1


686, 691 (Tex. 1989). The argument that one is privileged or legally justified in the

interference of contractual relations is an affirmative defense. Sterner v. Marathon Oil

Co., 767 S.W.2d 686, 690 (Tex. 1989).

As set out above, the defendants were entitled to a qualified privilege for the

communications they had with representatives of Lubbock County regarding Graves’

employment. Because those communications were privileged, they cannot form the

basis of a claim for tortious interference with an employment contract. See Gillum, 778

S.W.2d at 566.

The evidence demonstrates the communications at issue here involved the

proper operation of the Medical Examiner’s office in connection with NAAG’s

duties under the contract with Lubbock County to provide administrative oversight.

Ex. A, Matshes Affidavit, ¶ 7. Likewise, the communications of Dr. Andrews with

representatives of Lubbock County related to Graves involved the proper operation

of the Medical Examiner’s office and were in the performance of his duties as Chief

Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6. Further, all of Dr. Matshes’

communications with representatives of Lubbock County related to Graves were in

the course and scope of his employment with NAAG. Ex. A, Matshes Affidavit, ¶ 8.

NAAG was acting in the bona fide exercise of its own rights because it had an equal

right in the subject matter—the proper operation of the Medical Examiner’s office and

the avoidance confidential leaks. See Sterner, 767 S.W.2d at 691.

DEFENDANTS’ MOTION TO DISMISS – PAGE 27 147433v1


Because NAAG, Dr. Matshes, and Dr. Andrews were legally privileged or

justified in any interference with Graves’ employment contract, she cannot recover for

tortious interference. See Sterner, 767 S.W.2d at 691; Gillum, 778 S.W.2d at 566.

Accordingly, these defendants have established by a preponderance of the evidence

each essential element of a valid defense to Graves’ claim for tortious interference, and

her legal action should, therefore, be dismissed. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(d).

4. Dr. Matshes has no individual liability.

Finally, Dr. Matshes has no individual liability for the alleged tortious

interference of NAAG. A corporate officer’s acts on the corporation’s behalf are

generally deemed corporate acts. ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426,

432 (Tex. 1997). A corporate officer or director is not liable for inducing the

corporation to interfere with a contract, as long as he acts in good faith on the

corporation’s behalf. See ACS Inv’rs, Inc., 943 S.W.2d at 432. To succeed, the

plaintiff must show that the officer acted in a manner so contrary to the corporation’s

best interests that his actions could only have been motivated by personal interest; a

corporate officer’s mixed motives to benefit both himself and the corporation are

insufficient to establish liability. ACS Inv’rs, Inc., 943 S.W.2d at 432. The mere

existence of a personal stake in the outcome is insufficient to show that the agent

committed an act of willful or intentional interference. Powell Indus., Inc. v. Allen,

DEFENDANTS’ MOTION TO DISMISS – PAGE 28 147433v1


985 S.W.2d 455, 457 (Tex. 1998). Instead, the plaintiff must prove the corporation’s

agent acted willfully and intentionally to serve his own personal interests at the

corporation’s expense. Powell Indus., Inc., 985 S.W.2d at 457.

Courts also consider the corporation’s evaluation of the agent’s actions, since

the corporation is a better judge of its own best interest than a jury or court. Powell

Indus., Inc., 985 S.W.2d at 457. If a corporation does not complain about its agent’s

actions, then the agent cannot be held to have acted contrary to the corporation’s

interests. Powell Indus., Inc., 985 S.W.2d at 457.

Dr. Matshes is the managing director of NAAG Pathology Labs, PC and the

managing member of National Autopsy Assay Group LLC. Ex. A, Matshes

Affidavit, ¶¶ 1-2. All communications Dr. Matshes had with representatives of

Lubbock County related to Graves involved the proper operation of the Medical

Examiner’s office in connection with NAAG’s duties under the contract with

Lubbock County to provide administrative oversight. Ex. A, Matshes Affidavit, ¶ 7.

Moreover, all of Dr. Matshes’ communications with representatives of Lubbock

County related to Graves were in the course and scope of his employment with

NAAG. Ex. A, Matshes Affidavit, ¶ 8. This evidence demonstrates Dr. Matshes

acted in good faith on NAAG’s behalf. See ACS Inv’rs, Inc., 943 S.W.2d at 432.

There is no evidence Dr. Matshes acted in a manner contrary to NAAG’s best

interests. See ACS Inv’rs, Inc., 943 S.W.2d at 432. Accordingly, Dr. Matshes has no

DEFENDANTS’ MOTION TO DISMISS – PAGE 29 147433v1


individual liability for the alleged tortious interference of NAAG because his acts

on the corporation’s behalf are the corporate acts of NAAG. See ACS Inv’rs, Inc.,

943 S.W.2d at 432.

Because Dr. Matshes has established by a preponderance of the evidence that

he has a valid defense, Graves’ claims against him should be dismissed. See Tex.

Civ. Prac. & Rem. Code Ann. § 27.005(d).

D. Attorneys’ Fees, Costs, and Sanctions

Upon granting a motion to dismiss, a court must award court costs, reasonable

attorney’s fees, and other expenses incurred in defending the action as justice and

equity may require. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). As to court

costs, the language of the statute does not afford the trial court discretion to

determine what court costs to award. Urquhart v. Calkins, No. 01-17-00256-CV,

2018 WL 3352919, at *5 (Tex. App.—Houston [1st Dist.] July 10, 2018, not pet.)

(mem. op.). Rather, the statute simply requires the trial court to award costs to the

moving party. Urquhart, 2018 WL 3352919, at *5.

The reasonableness of an attorneys’ fee, however, rests within the trial court’s

discretion. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). The trial court is

required, upon dismissal, to award to the moving party its reasonable attorney’s fees.

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1). A reasonable fee is not excessive

DEFENDANTS’ MOTION TO DISMISS – PAGE 30 147433v1


or extreme, but rather moderate or fair. Sullivan v. Abraham, 488 S.W.3d 294, 299

(Tex. 2016). Sullivan, 488 S.W.3d at 299.

As to expenses, a trial court is required to award expenses under the TCPA

only to the extent that the court concludes that justice and equity require it. Urquhart,

2018 WL 3352919, at *5. The determination of an award of expenses is committed

to the trial court’s discretion. Urquhart, 2018 WL 3352919, at *5.

Finally, Section 27.009 instructs the trial court to determine the amount of

sanctions sufficient to deter the claimant from bringing similar actions in the future.

Cox Media Group, LLC v. Joselevitz, 524 S.W.3d 850, 865 (Tex. App.—Houston

[14th Dist.] 2017, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2) (West

2014). Like the reasonableness of attorney’s fees allowed by a statute, the amount

of sanctions sufficient to deter the claimant is a question of fact that rests within the

trial court’s discretion. See Cox Media Group, LLC, 524 S.W.3d at 859, 865.

Accordingly, upon dismissal of Graves’ legal action, the defendants request

this Court allow the defendants to put on evidence of their costs and attorneys’ fees,

and that this Court then award the defendants their attorneys’ fees and expenses, as

well as sanctions appropriate to deter further actions of this nature.

VI.
CONCLUSION AND PRAYER

First, the TCPA applies here because Graves’ suit is based on, related to, or

in response to these defendants’ exercise of the right of free speech and the exercise

DEFENDANTS’ MOTION TO DISMISS – PAGE 31 147433v1


of the right of association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); §

27.005(b). Second, Graves cannot establish by clear and specific evidence a prima

facie case for each essential element of her claim for tortious interference with a

contract. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Third, even if Graves

could establish by clear and specific evidence a prima facie case on each of her

causes of action, these defendants have established by a preponderance of the

evidence that they are entitled to the affirmative defenses of official immunity and a

qualified privilege. See City of Lancaster, 883 S.W.2d at 653; Burbage, 447 S.W.3d

at 254. Further, these defendants were legally privileged or justified in any interference

with Graves’ employment contract. See Sterner, 767 S.W.2d at 691; Gillum, 778

S.W.2d at 566. Finally, Dr. Matshes is not individually liable for the alleged tortious

interference of NAAG because his acts on the corporation’s behalf are the corporate

acts of NAAG. See ACS Inv’rs, Inc., 943 S.W.2d at 432. Accordingly, these

defendants are entitled to dismissal of Graves’ suit under the TCPA. See Tex. Civ.

Prac. & Rem. Code Ann. § 27.005.

WHEREFORE, PREMISES CONSIDERED, Defendants NAAG

PATHOLOGY LABS, PC, EVAN MATSHES, M.D., and SAM ANDREWS, M.D.

respectfully request that, on the hearing of this Motion, this Court enter an order:

1. Granting their Motion to Dismiss pursuant to chapter 27 of the Texas Civil


Practice and Remedies Code;

2. Awarding defendants their attorneys’ fees and court costs;

DEFENDANTS’ MOTION TO DISMISS – PAGE 32 147433v1


3. Awarding sanctions against Graves sufficient to deter her from bringing
similar actions; and

4. Awarding such other and further relief to which the defendants may show
themselves justly entitled, either at law or in equity.

DEFENDANTS’ MOTION TO DISMISS – PAGE 33 147433v1


Respectfully submitted,

RINEY & MAYFIELD LLP


Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509

By_______/s/Thomas C. Riney_____________
Thomas C. Riney

ATTORNEYS FOR DEFENDANTS NAAG PATHOLOGY


LABS, P.C. AND DR. EVAN MATSHES

AND

JACKSON WALKER LLP


Jon Mark Hogg – TBN 00784286
jmhogg@jw.com
135 W. Twohig Suite C
San Angelo, Texas 76903

By_______/s/Jon Mark Hogg_____________


Jon Mark Hogg

ATTORNEY FOR DEFENDANT DR. SAM ANDREWS

DEFENDANTS’ MOTION TO DISMISS – PAGE 34 147433v1


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Defendants’ Motion to Dismiss
was this 7th day of May, 2019, served on all known counsel of record in accordance with
the Texas Rules of Civil Procedure as follows:

Kevin Glasheen VIA ELECTRONIC FILING


kevin7@glasheenlaw.com efile.hayden.hatch@glasheenlaw.com
Hayden Hatch
hayden.hatch@gvilaw.com
GLASHEEN, VALLES & INDERMAN,
LLP
1703 WEST AVENUE
AUSTIN, TEXAS 78701

ATTORNEYS FOR PLAINTIFF

Jon Mark Hogg VIA ELECTRONIC FILING


jmhogg@jw.com
JACKSON WALKER LLP
135 W. Twohig Suite C
San Angelo, Texas 76903

ATTORNEYS FOR DEFENDANT


DR. SAM ANDREWS

________/s/Thomas C. Riney_______________
Thomas C. Riney

DEFENDANTS’ MOTION TO DISMISS – PAGE 35 147433v1


 
 
 
 
 

Exhibit A 
   
 
 
 
 
 

Exhibit B 
   
Medical Examiner- Lubbock County

Job Description

Job Title: Chief Grade: Appointed FLSA: Exempt

Date: 08/2018

Reports To: Commissioners Court

SUMMARY:

Directs the forensic functions of the Medical Examiner’s office to provide proper investigations of
deaths and determines accurate cause and manner of death including investigation and evaluation
of current and anticipated future inquiries in regard to unattended, suspicious, unexpected, and
violent deaths in accordance with Article 49.25, Texas Code of Criminal Procedure. Job has critical
impact on department operations and public image. Medical Examiner is appointed by the
Commissioners Court and serves at the pleasure of the Lubbock County Commissioner’s Court.
Coordinates with the Medical Examiner Chief Administrative Officer to liaison with the
Commissioners Court and the County Executive for Emergency Services.

ESSENTIAL DUTIES:

 Investigates deaths in accordance with Article 49.25, Texas Code of Criminal Procedure.
 Conducts post-mortem examinations to determine cause and manner of death.
 Responsible for the investigation or supervision of the investigation for all types of death
occurring as prescribed by law. Specifies and defines forensic standards, policies, and
procedures to ensure and enforce standardization within the Medical Examiner's office.
 Reviews and settles controversial issues pertaining to cause of death and physical evidence
analysis.
 Uses expert judgment to direct all actions in the Medical Examiner's office operations,
evaluates physical evidence and presents findings during court proceedings and uses broad
discretion to complete work assignments.
 Reviews all forensic work to ensure quality and consistency of reports. Testifies in court as
expert witness, to include out-of-county testimony as necessitated following the
performance of autopsies by the Lubbock County Medical Examiner’s Office. Serves as the
final authority on all investigations, whether involving criminal or civil matters. Confers
with attorneys, physicians, relatives and the public, as required. Has discretionary authority
to comment to the media on matters of public interest or public safety.
 Directs, plans, and provides quality evaluation systems for medical phases of forensic
operations to assure quality and consistent work methods.
 Authorizes designed to take charge of a body falling under the jurisdiction conferred by
Article 49.25, Texas Code of Criminal Procedure, and all property found with it in the
absence of next-of-kin or a legal representative of the deceased. Provides family
conferences in person and by telephone to family members of the deceased to increase
level of understanding of causes of death, manner of death, and physiologic and
psychological mechanisms involved.
 Orders appropriate analytical testing. Collects specimens and evidentiary materials.
Performs external examination of bodies. Dictates findings immediately upon completion of
post-mortem examination. Prepares written reports on opinion of cause and manner of
death regarding causes investigated, autopsied or externally examined, and issues official
death certificate. Promptly reviews and signs medical examiner reports.
 Is responsible for the maintenance of accurate and complete investigative records, reports,
and detailed findings of postmortem examination.
 Maintains all records in compliance with National Association of Medical Examiner (NAME)
standards.
 Promptly informs the appropriate law enforcement agency about deaths in which there is
an indication of criminality. Provides such information as necessary to the appropriate law
enforcement agency as an investigation proceeds.
 Ensures that complete files are provided to the district attorney upon request, to assist the
district attorney to comply with applicable criminal discovery statutes.
 Provides educational and informational opportunities through talks and lectures to law
enforcement, medical and paramedical groups and other criminal justice and related
agencies.
 Represents the County at meetings, state and national forensic organizations board
meetings, seminars, conferences, professional associations meetings, private
organizations, and participates on related committees. Represents Medical Examiner at
Commissioners Court sessions on items requiring agenda discussions.
 Performs other job-related duties as assigned.

QUALIFICATION REQUIREMENTS: Graduation from an accredited college of medicine AND


postgraduate pathology training program AND at least seven (7) years of experience as a forensic
pathologist, including supervisory and management experience.

Licenses, Registrations, Certifications, or Special Requirements:


Possession of a licensed to practice as a medical doctor in the State of Texas as issued by the
Texas Medical Board.
American Board Certified in anatomical or anatomical/clinical pathology.
American Board Certified in forensic pathology.
Valid Texas Driver's License.

WORK ENVIRONMENT & OTHER INFORMATION:


Physical requirements include the ability to lift/carry up to 75-100 pounds and maneuvering
cadavers in excess of 200 pounds. Works in an autopsy room. Requires visual acuity, speech and
hearing, hand and eye coordination, and manual dexterity necessary to operate laboratory
equipment and basic office equipment and computer. Subject to standing, walking, sitting, repetitive
motion, reaching, climbing stairs, bending, stooping, kneeling, crouching, crawling, pushing, pulling,
balancing, client/customer contact, squatting to perform the essential functions. At times requires
driving and exposure to outdoor conditions. Subject to various biological/infectious, chemical,
mechanical, electrical, explosive and radiation hazards in indoors/outdoors work, and exposure to
fumes, noxious odors and toxic wastes. Exposure to computer monitors. Daily contact with bio-
hazardous materials. Frequent contact with funeral directors, law enforcement officers, and friends
and families of the bereaved. Exposure to high job stress. Must possess sufficient physical
strength and emotional stability to work under adverse conditions.

DISCLAIMER:
The characteristics of the work environment described are representative of those that an
employee encounters while performing the essential functions of this job. Reasonable
accommodations may be made to enable individuals with disabilities to perform the essential
functions.

Signature: Date:
 
 
 
 
 

Exhibit C 
   
AFFIDAVIT OF SANDRA GARCIA

STATE OF TEXAS §
COUNTY OF LUBBOCK §

On this Js/- day of May, 2019, Sandra Garcia, appeared before me, and after being
placed under oath affirmed the truth of the following:

"My name is Sandra Garcia. I am over the age of 18 years, of sound mind, and personally
acquainted with the facts stated in this affidavit."

l. "My name is Sandra Garcia, I am a custodian for the records of the Cow1ty Clerk's
Office for Lubbock County, Texas."

2. "The Agenda for the Commissioners Court, scheduled on July 25, I 994, contains
eighteen (18) agenda items. Agenda Item #9 is listed as 'Consider medical examiner
plan for Lubbock County (1 :30 p.m.). '"

3. "On the 25 th day of July, 1994, 'there was held a Regular Meeting of the Lubbock
County Commissioners Court for Lubbock County. Members of the Lubbock County
Commissioner's Comt were as follows: Don McBeath, County Judge; Kenny Maines,
Commissioner Precinct #1; James Kitten, Commissioner Precinct #2; Gilbert Flores,
Commissioner Precinct #3; and Alton Brazell, Commissioner Precinct #4.''

4. "Recorded as the minutes for the July 25 11!, 1994 Commissioners Court Meeting, 'the
Court unanimously voted to establish a Medical Examiner Office for Lubbock County,
effective October 1, 1994.''

5. "In that same commissioners court meeting, Dr. Jerry Spencer was unanimously voted
as the Lubbock County Medical Examiner, effective October 1, 1994.''

6. "In determining that the Lubbock County Medical Examiner's Office best serves the
public interest, subsequent contracts for the Lubbock County Medical Examiner Office
were executed by the Commissioners Court on behalf of Lubbock County pursuant to
Article 49.25 of the Texas Code of Criminal Procedure."

7. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract and agreement with Forensic Pathology Associates, P.A. to
provide forensic pathology services, effective from October 1, 1997 until September
30, 1998."

AFFIDAVIT OF SANDRA GARCIA


8. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract with Forensic Pathology Associates, P.A., to provide forensic
pathology services, effective from October 1, 1998 until September 30, 1999."

9. '·An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC), for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect starting October L 2003 until
September 30, 2005,"

10. "An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC) for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect staiting March 1, 2006 until
September 30, 2006."

11. "In February 2009, an Interlocal Agreement between Lubbock County and Texas Tech
University Health Sciences Center, on behalf of the School of Medicine, was signed in
regards to the operation of the Lubbock County Medical Examiner's Office, pursuant
to Article 49.25 of the Texas Code of Criminal Procedure."

12. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, whereas the Com1 unanimously voted approving to
appoint Dr. Sam Andrews as the Interim Acting Chief Medical Examiner pursuant to
Texas Code of Criminal Procedure 49.25."

13. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, the Court unanimously voted approving to ratify an
agreement behveen Lubbock County and NA.AG Pathology Labs for the performance
and management of the operation of the Lubbock County Medical Examiner's Office
effective August 5, 2018 through September 30, 20 I 8 and to authorize the County
Judge to sign-off on said agreement indicating ratification by the Lubbock County
Commissioners Court.''

14. "Recorded as the minutes for the Lubbock County Commissioners Court Regular
Meeting on September 24, 2018, the Court unanimously voted approving the County
Judge to Sign a Pathology Services Agreement with NAAG Pathology Labs P.C.

15. ''On September 24, 2018, County Judge for Lubbock County_ Thomas Head, signed a
Pathology Services Agreement, effective October 1, 2018, for Lubbock County
pursuant to the Texas Code of Criminal Procedure Chapter 49."

16. "As recorded as the minutes for the December 21, 2018, Regular Meeting of the
Lubbock County Commissioners Court. the Court unanimously voted approving to
appoint Dr. Sam Andrews as the Acting Chief Medical Examiner pursuant to Article
49.25 of the Texas Code of Criminal Procedure."

AFFIDAVIT OF SANDRA GARCIA


Further affiant sayeth not.

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Sworn to and subscribed before me on this _ _ _ day of May 20 19.

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AFFIDAVIT OF SANDRA GARCIA


 
 
 
 
 

Exhibit D 
   
Filed 2/20/201911 :56 AM
Barbara Sucsy
District Clerk
Lubbock County, Texas
BT
CAUSE NO. 2019534246

TITA SENEE GRAVES, § IN THE 72ND DISTRICT COURT


§
Plaintiff, §
§
v. §
§
NAAG PATHOLOGY LABS, PC, § IN AND FOR
DR. EVAN WILLIAM MATSHES, and §
DR. SAM ANDREWS, §
§
§
Defendants. § LUBBOCK COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCOVERY

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, TITA SENEE GRAVES, Plaintiff herein, complaining of Defendant

NAAG PATHOLOGY LABS, PC, et al, and for cause ofaction would respectfully show unto this

Court the following:

I. DISCOVERY CONTROL PLAN

1. Plaintiff intends to conduct discovery under Level III of Tex. R. Civ. P. 194.

II. PARTIES

2. Plaintiff TIT A SEN EE GRAVES (hereinafter "Plaintiff'' or "Ms. Graves") is an individual

who resides at 1510 Rear County Rd 7360, Lubbock, Texas 79423.

_ 3. National Autopsy Assay ,Group, PC (hereinafter "Defendant NAAG" or "NAAG") is a

professional corporation doing business in the State of Texas. They arc incorporated in California

and their principal place of business is in San Diego, California. This defendant may be served

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 1 of 9
with process through its registered agent, CAPITOL CORPORATE SERVICES, INC., at 206 E

9m ST, STE 1300, AUSTIN, TX 78701.

4. Dr. Evan Matshes (hereinafter "Defendant Matshes" or "Dr. ~atshes") is an individual

who resides in San Diego County, California, and may be served at his office at ·6540 Lusk Blvd

Suite c262, San Diego, CA 92121.

5. Dr. Sam Andrews (hereinafter "Defendant Andrews" or "Dr. Andrews") is an individual

who resides in Texas. He can be served at his office in Lubbock at 4434 S Loop 289, Lubbock,

TX 79414.

III. JURISDICTION AND VENUE

6. This Court has personal jurisdiction over the parties. All the parties are either individual

residents of the State of Texas, are doing business in Texas, have sufficient minimum contacts

with the State of Texas, and/or have purposefully availed themselves of the laws and markets of

the State of Texas so as to not offend traditional notions of fair play and substantial justice.

7. This Court is the proper venue to hear this lawsuit pursuant to Tex. Civ. Prac. & Rem. Code

§ 15.002(a)(l) because the events giving rise to this lawsuit occurred in Lubbock County, Texas.

8. As required by Tex. R. Civ. P. 47(b), Plaintiffs counsel states that the damages sought are

in an amount within the jurisdictional limits of this Court. As required by Tex. R. Civ. P. 47(c),

Plaintiff seeks monetary relief over $1,000,000. The amount of monetary relief actually awarded,

however, will ultimately be determined by a jury. Plaintiff also seeks prejudgment and postN

judgment interest at the highest legal rate.

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAA G Pathology Labs, PC

Page 2 of 9
IV.FACTS

9. This is an employment case, Ms. Graves was employed by Lubbock Cciunty and worked

in the Medical Examiner's Office until she was fired on January 17, 2019. The D~fendants induced

Lubbock County to terminate Plaintiffs employment because she reported suspicious and

potentially illegal activity within the medical examiner's office.

10. Ms. Graves is 56 years old, was raised in Abernathy, and has lived in Lubbock since she

was 18 years old. She went to South Plains College to qualify as an x-ray tech and went on to

work at Covenant Imaging for 28 years. Her dream was to work in the Medical examiner's Office,

so when a job opening was posted in 2015, she applied with the County and was hired. The

Lubbock County Medical Examiner's Office was staffed with Lubbock County Employees who

worked under the direction of the contracted Medical Examiner.

11. Ms. Graves worked under Medical Examiner Dr. Natarajan until Lubbock County replaced
(

him in August 2018 with a contract interim Medical Examiner, National Autopsy Assay Group

''NAAG", from San Diego, CA. The NAAG contract Medical Examiner was pathologist Dr.

Andrews, who held a Texas Medical License. Dr. Andrews was to fly into Lubbock periodically

and perform autopsies.

12. Immediately after NAAG took over the contract, NAAG began to make changes at the

Lubbock Medical Examiner's Office. Apparently, Lubbock County allowed the contract medical

examiner to fire the Lubbock County employees who worked in the medical examiner's office.

The managerial director Honey Smith was fired immediately, and Office Manager Neil Kilcrease

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology labs, PC

Page 3 of 9
quit within a week. Frank Garcia, Catrina Beights and Kayla Shoenhals were all fired the same

day, Kayla by text, in late August.

13. In August 2018, Dr. Matshes, a Pathologist with NAAG, came to Lubbock with the new

interim Medical Examiner Dr. Andrews and explained to the staff that NAAG was starting a new

protocol and a new technique for autopsies involving infants and young children. Dr. Matshes

stated that he wanted to collect more tissue from those autopsies than had been· done in the past,

because he needed that tissue for his "research."

14. Dr. Matshes gathered the staff to watch as he performed two autopsies on infants. The new

protocol required the removal of the children's brain, eyes, spinal cord, posterior neck, including

vertebra, and the heart and lungs, which Dr. Matshes demonstrated on both children. Dr. Matshes

stated that he was acting as a "tech", not a doctor, since was not licensed to practice medicine in

Texas. Dr. Matshes made the incisions and removed the organs himself, while Dr. Andrews

observed along with the staff

15. One of the autopsies was a suspected case of child abuse from Odessa. The other infant

autopsy that day was a case where an infant had died after medical care in UMC hospital from

burns suffered in a house explosion in Midland. There was no need for such tissue to determine

the cause of the bum death.

16. Ms. Graves, and the other staff were disturbed by the autopsies of the infants. The

unnecessary harvesting of body parts for a Pathologist's personal research interests seemed wrong.

An autopsy performed by a physician who was not licensed in Texas seemed wrong. Ms. Graves

took 3 or 4 pictures as evidence that Dr. Matshes was performing the autopsy as an unlicensed

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 4 of 9
physician. She sent those to another pathologist, Dr. Pustilnik in Houston for his advice. Ms.

Graves was familiar with Dr. Pustilnik because he had done some contract work 1n Lubbock in the

past, and Ms. Graves knew him to be a professional and ethical physician, and she wanted his

advice and assistance about reporting this information to the appropriate agencies. Ms. Graves

deleted the pictures from her phone and did not retain them. She did not send the pictures to anyone

else, and she does not know what Dr. Pustilnik did with the pictures,

17. On or around October Pt, 2018, NAAG signed a contract with Lubbock County to provide

medical examiner services on a more permanent basis. Dr. Matshes came to Lubbock and had a

meeting with the staff and told them that somebody had sent photos to the media, to law

enforcement, to the Midland District Attorney's Office and the Texas Medical Board. He went on

to say that "Whoever did that will go to jail" and "We think we know who did it". Apparently

NAAG thought Kayla Schoenhals may have been the source of the leak, since she had been

recently fired by text message, and was presumed_ to be upset about that. Present for that meeting

were Logan Kuss, Kason McGuinness, Evan McElwain, Andrew Peeples, and Ms. Graves.

18. Later, around late September 2018, Ms. Graves saw Dr. Matshes in an autopsy room where

an autopsy was being conducted on an infant who had died from meningitis. As soon as the child's

skull cap was removed, everyone agreed that the cause of death was an obvious case of meningitis.

Dr. Matshes then stated that he "needed more naturals like this for research" and: directed the staff

to take all the tissue outlined in the new protocol. The staff eventually understood that Dr. Matshes

was doing research to identify certain markers for child abuse but needed more studies of tissue

from infant and children who had died natural deaths, to compare to the tissue from children who

had died from abuse, and that was the purpose of the tissue harvest.

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 5 of 9
19. Many other employees quit over the next few months, many of them because they were

upset by what appeared to be unnecessary and inappropriate harvesting of tissue from infants and

children, and the unnecessary harvesting of those bodies. Those who quit include Evan McElwain,
\

Logan Kuss, and Andrew Peeples. NAAG brought in some its own employees, including James

Buckley as Senior Investigator; Lisa Hang would be in charge of the autopsy suites and a paralegal

named Lee Bennett.

20. On or about December 4th , an Lubbock Police Department employee named Whitney

McClendon from the ID division was at the ME's office. Ms. Graves reported to Ms. McClendon

her concerns that an unlicensed physician was performing autopsies, about the excessive tissue

harvest, and other concerns about the professionalism and competence of the contractor.

21. On January 4th, Ms. Graves reported her concerns to Lubbock County Commissioner,

Jason Corley. Ms. Graves signed an affidavit at the request of Mr. Corley describing her concerns

about excessive tissue harvest and the unlicensed practice of medicine by Dr. Matshes.

22. On or about January 14th Dr. Matshes came to Lubbock. James Buckley called Ms. Graves

into a conference room to meet with Dr. Matshes. Dr. Matshes accused Ms. Graves of talking to

the County Commissioner and to Law Enforcement. He told her that LPD is "not completely on

your side". He said, "the Captain and Chief of Police do not agree with you." He asked, "Why

are you so mad?" and "What should I do with you?" Ms. Graves took the next day off, and returned

Wednesday, when James Buckley asked Ms. Graves to answer the following questions in writing,

such as: Why do you like your job?; Do you want to keep your Job?; Why were you mad?; Why

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAA G Pathology Labs, PC

Page 6 of 9
did you behave that way?; and, What are you going to do to correct it? Ms. Graves was fired

Thursday January 17 th by Dr. Andrews.

23. On January 29 th Ms. Graves emailed Greg George, Human Resources Director for Lubbock

County, inquiring about her employment status. He responded that she had b~en terminated by

Dr. Andrews as of January 171h. See Exhibit A.

V. CAUSES OF ACTION

TORTIOUS INTERFERENCE WITH CONTRACT

24. Defendant Andrews and Matshes both willfully and intentionally interfered with Plaintiffs

employment by inducing Lubbock County to fire Plaintiff because she reported her concerns about

potentially illegal activity within the Medical Examiner's Office to the authorities. Such conduct

amounts to tortious interference with contract. Both Defendant Andrews and Matshes were

employees or agents ofNAAG and were acting within the course and scope of that employment.

VI. PLAINTIFF'S DAMAGES

25. Plaintiff seeks actual damages and exemplary damages for Defendants' tortious

interference with her contract. Defendants acted maliciously.

26. As a direct and proximate result of Defendants' tortious interference, Plaintiff suffered

damages and, as provided by Texas law, is entitled to recover for those damages. Plaintiff has

suffered damages as follows:

a. Mental anguish sustained in the past;

b. Mental anguish that, in reasonable probability, Plaintiff will sustain in the future;

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 7 of 9
c. Loss of earnings sustained in the past;

d. Loss of earnings that, in reasonable probability, Plaintiff will sustain in the future;

VII. JURY DEMAND

27. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

, VIII. PRAYER

28. WHEREFORE, Plaintiff requests that Defendants be cited to appear and answer, and that

on final trial Plaintiff has judgment against Defendants for:

a. Actual and exemplary damages;

b. Prejudgment and post-judgment interest;


~

c. Declaratory relief as outlined in this petition;

d. Costs of court;

e. All other relief to which the Plaintiff may be justly entitled.

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 8 of 9
!
Respectfully submitted,

Glasheen, Valles & lnderman, LLP


1703 West Avenue
Austin, Texas 78701
(512) 851-1035
(512) 298-1009-Fax
efi le. hayden.hatch@glasheenlaw.com

(SI Hayden Hatch


· Kevin Glasheen
State Bar No. 08001510
Hayden Hatch
State Bar No. 24109983
ATTORNEYS FOR THE PLAINTIFF

PLAINTIFF'S ORIGINAL PETITION


Graves v. NAAG Pathology Labs, PC

Page 9 of 9
' '

From: Greg George <GGeorge@co.lubbock.tx.us>


Date: January 29, 2019 at 2:04:20 PM CST
To: senee <seneegraves@yahoo.com>
Subject: RE: Employment Status

Dr. Andrews communicated to you on January 17, 2019 your employment with the LCME department
ended on January 17, 2019. This communication took place in person with you ln his office on January
17,2019.

Greg George. PHR


Human Resources Director
Lubbock County
(806)775-1690
(806)775-7977 FAX

'This message contains information which may be confidential and privileged.


Unless you are the addressee (or authorized to receive for the addressee, you may
not use, copy or disclose to anyone the message or any information contained in the
message. If you have received the message in error, please advise the sender by
reply e-mail and delete the message."

From: senee <seneegraves@yahoo.com>


Sent: Tuesday, January 29, 2019 5:28 AM
To: Greg George <GGeorge@co.lubbock.tx.us>
Subject: Employment Status

Mr. George:
I am wrlting to inquire about the status of my employment.
My full name is Tita Senee Graves.
Can you please inform me of what that status is?
Thank you for your quick reply.

Senee

Sent from Mail for Windows 10

PLAINTIFF
A
Capitol Corporate Services, Inc.
PO Box 1831
Austin, TX 78767
Phone; (800) 345-4647 Fax; (800} 432-3622
rassop@capitolseivices.com

Service Of Process Transmittal Notice

SANDRA JOHNSON Date Processed: 03/08/2019


6540 LUSK BLVD STE C262
SAN DIEGO CALIFORNIA92121
Completed By: JOE DIGAETANO

Delivery Method to Client: FEDEX 2 DAY LETTER

Tracking Number: 467169075196

Enclosed please find legal documents received on behalf of the client named below. These documents are
being forwarded in accordance with your instructions.

Date I Time Received Transmittal# Delivered to Agent by


03/08/2019 2:00 PM in TEXAS TX-164022 PROCESS SERVER

With Regard to Client


NAAG PATHOLOGY LABS, PC

Title of Case or Action


TITA SENEE GRAVES VS. NAAG PATHOLOGY LABS, PC, ET AL.

Case Number Type of Document Served


2019534246 COMPLAINT/PETITION

Court Name
72ND JUDICIAL DISTRICT COURT, LUBBOCK COUNTY, TEXAS

INote

lllllll llll llllll lllll 111111111111111111111111111111111


1-1640229

' i

CITATION
THE STATE OF TEXAS

TO: NAAG PA THO LOGY LABS, PC


By Serving Registered Agent: Capitol Corporate Services, Inc.
206 E. 9th St., Ste. 1300, Austin, TX 78701
Defendant Greetings:

NOTICE

You have been sued. You may employ an attorney. If you or your attorney do not file a
written answer with the clerk who issued this citation by 10 a.m. on the Monday following
the expiration of twenty days after you have been served this citation and petition, a default
judgment may be taken against you.

Said Plaintiff's Original Petition and Request for Discovery was filed in the 72nd District
Court of Lubbock County, Texas, on February 20, 2019. The file number of
said suit being
Cause Number 2019534246, and styled:

Tita Senee Graves,


Plaintiff
V.
NAAG Pathology Labs, PC, Dr. Evan William Matshcs, and Dr. Sam Andrews,
Defendants

The nature of Plaintiff's demand is set out and shown by a true and correct copy of the Original
Petition and Request for Discovery, accompanying this citation, and made a part thereof.

Plaintiff is represented by:


Hayden Hatch, 1702 West Avenue, Austin, Texas 78701 512-851-1035

The officer executing this writ shall promptly serve the same according to requirements of law,
and the mandates hereof, and make due return as the law directs.

Issued and given under my hand and seal of said Court at Lubbock County, Texas,
this Thursday, February 21, 2019, at 9:09 AM.

Barbara Sucsy, District Clerk


72nd District Court
P.O. Box 10536 (79408)
904 Broadway
Lubbock, Texas 79401

By___,_(~/,......lz""". .L..-'m'-'---=-tf/_·._t~_,·n_·
~----_ _Deputy
cJ'Tamie Horton
RETURN OF SERVICE
CITATION

Issued: February 21, 2019

Lubbock County Cause Number: 2019534246


72nd District Court

Tita Senee Graves


v.
NAAG Pathology Labs, PC, Dr. Evan William Matshes, and Dr. Sam Andrews

PERSON OR ENTITY TO BE SERVED AND ADDRESS FOR SERVICE:


NAAG PATHOLOGY LABS, PC
By Serving Registered Agent: Capitol Corporate Services, Inc. 206 E. 9th St., Ste. 1300, Austin, TX 78701

OFFICER'S RETURN

Came to hand on the __ day of _ _ _ _ _ _ _ _, 20_, at _ _ _ _ O'clock AM/PM, and executed in


_ _ _ _ _ _ _ _ _ County, Texas by delivering to the within named defendant in person, a true copy of this Citation with the
date of delivery endorsed thereon, together with a copy of the Original Petition and Request for Discovery, at the following time
and places, to-wit:
NAME DATE&TIME LOCATION/ADDRESS

OR NOT executed to the named Defendant; The diligence used in finding said defendant, the cause of failing to execute this process
and the information received as to the whereabouts of the said defendant, being: ·

FEES FOR SERVING: $_ _ _ __


FEES FOR NOT SERVING: $_ _ _ __ Officer or Authorized Person
OTHER FEES: $_ _ __
TOTAL FEES: s_____ County, Texas

Signature of Officer or Authorized Person

**COMPLETE IF YOU ARE A PERSON OTHER THAN A'SHERIFF, CONSTABLE, OR CLERK.OF THECOfJRT**
In accordance with Rule I 07: The officer or authorized person who serves, or attempts to serve a citation shall sign the rct um. The
return must either be verified or be signed under penalty of perjury. A return signed under penalty of perjury must contain the
statement below in substantially the following fonn:

"My name is _ _ _ _ _ _ _ _ _ _ _ _ _ _ , my date of birth is _ _ _ _ _ _ _ _ _, and my address is


(First, Middle, Last)

(Street, City/State, Zip)

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOfNG IS TRUE AND CORRECT.

Executed in _ _ _ _ _ _ _ _ _ County, State o f _ , on the ___ day of _ _ _ _ _ _ _ _ __

Declarant/Authorized Process Server

I.D. # & Expiration of Certification"


 
 
 
 
 

Exhibit E 
   
Filed 3/29/2019 9:52 AM
Barbara Sucsy
District Clerk
Lubbock County, Texas
ARG

CAUSE NO. 2019534246

TITA SENEE GRAVES, § IN THE 72ND DISTRICT COURT


§
Plaintiff §
§
vs. § IN AND FOR
§
NAAG PATHOLOGY LABS, PC, DR. §
EVAN WILLIAM MATSHES and DR. SAM §
ANDREWS, §
§
Defendants. § LUBBOCK COUNTY, TEXAS

DEFENDANTS’ ORIGINAL ANSWER

Comes now, NAAG PATHOLOGY LABS, PC; DR. EVAN WILLIAM MATSHES; and

DR. SAM ANDREWS (“Defendants”), and answer Plaintiff’s Original Petition as follows:

I.
CORRECT NAME OF NAAG

NAAG is referenced by various names in Plaintiff’s Original Petition. It is referenced in the

caption and introductory paragraph as “NAAG Pathology Labs, PC,” but in Paragraph 2, as

National Autopsy Assay Group, PC. The correct name of the entity is NAAG Pathology Labs, PC

and will hereafter be referred to as “NAAG.”

II.
SPECIAL EXCEPTIONS

Defendants specially except to Plaintiff’s Original Petition because it does not state the

maximum amount of damages claimed as required by Texas Rule of Civil Procedure 47.

Defendants’ Original Answer - Page 1 147046v1


III.
GENERAL DENIAL

Defendants place in issue all matters contained in Plaintiff’s Original Petition by general

denial pursuant to TEX. R. CIV. P. 92.

III.
AFFIRMATIVE DEFENSES

Pleading in the alternative, Defendants allege as follows pertinent to their affirmative

defenses:

A. NAAG entered into a contract with Lubbock County to provide comprehensive

death investigation services including executive oversight functions of a Chief Medical Examiner,

administrative oversight functions for autopsy services, photography, death investigation, and

forensic pathology services. It also agreed to provide sub-specialty forensic pathology services, such

as neuropathology, as deemed necessary by the responsible case pathologist or the Chief Medical

Examiner. Dr. Sam Andrews was appointed Chief Medical Examiner of Lubbock County and has

served in that position at all times relevant to the allegations of Ms. Graves. Ms. Graves was an

employee of Lubbock County and was never an employee of NAAG. Ms. Graves’ allegations that

her employment was terminated because she reported her concerns about potential illegal activity

within the Medical Examiner’s Office to the authorities are false. There was no illegal activity in

the Medical Examiner’s Office by Defendants.

B. The office of the Medical Examiner is a position established by Texas law and by

Lubbock County. See, e.g., Tex. Code Crim. Pro. Art. 49.25. This statute sets forth the duties of a

Medical Examiner. Those duties include investigation of deaths in various circumstances including

a death within 24 hours after admission to a hospital, an unnatural death, or when the circumstances

Defendants’ Original Answer - Page 2 147046v1


of a death lead to suspicion that the death was caused by unlawful means. When a death under

these circumstances is reported to the Medical Examiner’s office, the Medical Examiner must

investigate the death. The statute provides that the Medical Examiner determines whether an

autopsy is necessary.

C. Ms. Graves admits in her petition that she transmitted and then destroyed relevant

evidence by deleting pictures that she said she took from her phone. Photographs taken during an

autopsy are not subject to disclosure under the law except in certain circumstances not applicable to

the allegations of Ms. Graves. She destroyed this evidence because she knew that her actions in

taking unauthorized photographs of an autopsy that could potentially be the subject of a criminal

investigation was unlawful and contrary to the policies of Lubbock County. The fact that she

destroyed evidence raises an inference that the evidence would have been unfavorable to her on the

issues in her lawsuit.

D. The cause of Ms. Graves’ termination is not Defendants but her own misconduct in

connection with her performance of her duties as a Lubbock County employee including, but not

limited to, unauthorized disclosure of information from cases under active investigation by the

Medical Examiner’s office in violation of Texas law and in violation of the procedures of the

Medical Examiner’s office and the Lubbock County employment manual.

E. The allegation that Dr. Matshes was performing an autopsy as an “unlicensed

physician” is false. Dr. Matshes holds certifications in anatomic pathology and forensic pathology

from the American Board of Pathology. He is a Fellow in the College of American Pathologists.

He also holds specialty certification in anatomic pathology as a Fellow of the Royal College of

Physicians and Surgeons of Canada. He is licensed to practice medicine in California, Florida, and

Defendants’ Original Answer - Page 3 147046v1


New Mexico. Dr. Matshes has assisted with autopsies at the Lubbock County Medical Examiner

Office but always under the supervision and direction of Dr. Andrews, the Lubbock County Medical

Examiner, who is licensed to practice medicine in Texas. In connection with his assistance at those

autopsies, Dr. Matshes was not involved in the diagnosis or treatment of any mental or physical

disease or disorder or a physical deformity or injury by any system or method nor did he attempt to

effect cures of those conditions. Thus, he was not “practicing medicine” as defined by Texas law.

Tex. Occ. Code § 151.002(13). In fact, the activities performed by Dr. Matshes are routinely

performed by unlicensed technicians in medical examiners’ offices throughout Texas.

F. The allegation that Dr. Matshes was taking excessive tissue for research is likewise

unsupported. Dr. Matshes has never removed organs or tissues from forensic autopsies for

research purposes. Graves has no qualifications to determine what should be done in an autopsy

to determine the cause of death.

G. Any conduct of Defendants related to Plaintiff was in the performance of the

contract to operate the Medical Examiner’s office. Accordingly, Defendants are immune from

liability under the doctrine of governmental immunity, which has not been waived.

H. Any conduct of Defendants related to Plaintiff was in the performance of the

contract to operate the Medical Examiner’s office. Accordingly, Defendants are immune from

liability under the doctrine of official immunity. Guerrero v. Tarrant County Mortician Services

Co., 977 S.W.2d 829 (Tex. App.—Fort Worth, 1998, rev. denied).

I. Defendants and Lubbock County have a common interest in the proper operations of

the Medical Examiner’s Office. NAAG had the right and duty to report to the County facts about

Defendants’ Original Answer - Page 4 147046v1


County employees related to the proper operation of the county Medical Examiner’s Office.

Defendants therefore enjoy a qualified privilege from any liability.

J. Defendants have an interest in the proper operation of the Medical Examiner’s

Office and were therefore privileged to discuss Plaintiff’s job performance with Lubbock County in

a good faith exercise of their rights.

K. Defendants allege that under the facts and circumstances of this case, an award of

exemplary damages would violate substantive and procedural due process in violation of the Fifth

and Fourteenth Amendments of the United States Constitution in the following respects:

1. It is unconstitutional to allow a citizen to be punished upon the basis of a

standard as vague and ill-defined as the common law concepts upon which exemplary

damages can be awarded.

2. It is unconstitutional to allow a citizen to be punished for any conduct when

the citizen is unable to determine, prior to the hearing, what the standards used in assessing

that punishment will be and where the jury has almost total and unbridled discretion in

determining the amount of that punishment. The standards for assessing exemplary

damages in this case are unconstitutionally vague, and allow the jury to assess exemplary

damages based upon criteria wholly unrelated to Defendants’ conduct and completely

beyond the control of Defendants.

3. Because the award of exemplary damages has quasi-criminal attributes, both

as to rationale and effect, it is unconstitutional to award exemplary damages based solely

upon a mere preponderance of the evidence which may be provided by the slightest

circumstantial evidence, coupled with speculation and innuendo.

Defendants’ Original Answer - Page 5 147046v1


4. It is unconstitutional for a state to allow a private citizen with a profit motive

to seek punishment of another citizen without the full protections of the Texas and United

States Constitutions, including privilege against self-incrimination, and the right not to be

placed in double jeopardy. Defendants allege that the fiction that punishment in civil suits

does not invoke the constitutional protections, whereas the same punishment in a criminal

suit does, should be abandoned. In either event, the state is forcing Defendant to forfeit

valuable property interests, and it matters not to Defendants whether they lose their property

to the state or to a private litigant.

5. It is unconstitutional to impose grossly excessive or arbitrary punishments

on a tortfeasor.

L. In the alternative, an award of exemplary damages, as sought by Plaintiff under the

facts and circumstances of this case, would violate the excessive fines, cruel and unusual

punishment, and due process clauses of the Texas Constitution.

M. Plaintiff’s right to recover exemplary damages is limited in accordance with the

provisions of §§ 41.001-13, Tex. Civ. Prac. & Rem. Code Ann.

WHEREFORE, PREMISES CONSIDERED, Defendants pray that their special exceptions

be sustained and that Plaintiff be ordered to replead, that Plaintiff take nothing by reason of her suit

and that Defendants be discharged from all liability and recover its costs, and for such other and

further relief to which they may show themselves justly entitled, either at law or in equity.

Defendants’ Original Answer - Page 6 147046v1


Respectfully submitted,

RINEY & MAYFIELD LLP


Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509

By_______/s/Thomas C. Riney_____________
Thomas C. Riney

ATTORNEYS FOR DEFENDANTS NAAG PATHOLOGY


LABS, P.C.; DR. EVAN MATSHES; AND DR. SAM
ANDREWS

Defendants’ Original Answer - Page 7 147046v1


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Defendants’ Original Answer was this
29th day of March, 2019, served on all known counsel of record in accordance with the Texas
Rules of Civil Procedure as follows:

Kevin Glasheen VIA ELECTRONIC FILING


Hayden Hatch
efile.hayden.hatch@glasheenlaw.com
GLASHEEN, VALLES & INDERMAN, LLP
1703 WEST AVENUE
AUSTIN, TEXAS 78701

ATTORNEYS FOR PLAINTIFF

__________/s/Thomas C. Riney_____________
Thomas C. Riney

Defendants’ Original Answer - Page 8 147046v1