2019-05-07 Motion To Dismiss - Ortiz

Filed 5/7/2019 4:09 PM
Barbara Sucsy
District Clerk
Lubbock County, Texas
CAUSE NO. 2019534421

TB
REBECCA VILLARREAL ORTIZ, § IN THE 237TH DISTRICT COURT
§
Plaintiff §
§
vs. § IN AND FOR
§
EVAN MATSHES, MD; SAM §
ANDREWS, MD; NATIONAL §
AUTOPSY ASSAY GROUP, §
LLC; and NAAG PATHOLOGY §
LABS, PC §
§
Defendants. § LUBBOCK COUNTY, TEXAS
DEFENDANTS’ MOTION TO DISMISS
TO THE HONORABLE DISTRICT COURT:
Come now, EVAN MATSHES, M.D.; SAM ANDREWS, M.D.;
NATIONAL AUTOPSY ASSAY GROUP, LLC; and NAAG PATHOLOGY
LABS, PC, 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
DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147437V1

TCPA. In support of their motion to dismiss, the defendants would respectfully show
this Court the following:
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). Ortiz filed her
original petition on March 4, 2019. Plt.’s Orig. Pet. (on file with this Court). NAAG
Pathology Labs, PC and National Autopsy Assay Group, LLC were served on March
12; Dr. Matshes was served on March 14; Dr. Andrews was served on March 28.
See Returns 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).
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, Ortiz 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, Ortiz cannot establish by clear and specific evidence a prima
facie case for each essential element of her claims. As to her claims of the
defendants’ alleged mishandling of remains, she cannot demonstrate that there is a
special relationship between her and the defendants. Without such a special
relationship, the defendants have no duty to Ortiz. Further, because she did not have
a general right to the tissues of the decedent, Ortiz cannot establish by clear and
specific evidence a prima facie case of her claim for a right of possession. Finally,
Ortiz cannot establish a prima facie case on the elements of a conspiracy, particularly
since she cannot establish any underlying tort.
Moreover, even if Ortiz 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 and qualified privilege. 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
(“NAAG”) and the managing member of National Autopsy Assay Group LLC (“the
LLC”). Ex. A, Matshes Affidavit, ¶¶ 2-3. Dr. Sam Andrews and Dr. Matshes are
employees of National Autopsy Assay Group LLC, but they are subcontracted to
NAAG. Ex. A, Matshes Affidavit, ¶ 3; Ex. B, Andrews Affidavit, ¶ 2.
Pursuant to a contract with Lubbock County, NAAG agreed to provide the
services of a Chief Medical Examiner, including death investigation services as
required by the Texas Code of Criminal Procedure. Ex. A, Matshes Affidavit, ¶¶ 4-
5; 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; 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, ¶ 4.
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 and Section Leader. Ex. B, Andrews Affidavit, ¶ 4. Under that contract, Dr.
Andrews was appointed the Chief Medical Examiner on December 21, 2018. Ex. B,
Andrews Affidavit, ¶ 4; Ex. C, Garcia Affidavit, ¶ 16; see also, Ex. A, Matshes
Affidavit, ¶ 4 (stating Dr. Andrews served as either Interim or Acting Chief Medical
Examiner of Lubbock County at all relevant times).
B. Death of Elaina Castilleja
According to Ortiz’s petition, Elaina Castilleja suffered traumatic brain injury
as a young child as a result of abuse by her parents, resulting in their prosecution
and punishment. Ex. D, Plt.’s Org. Petition, ¶¶ 12-13. Elaina suffered life-long,
severe disabilities as a result of her traumatic brain injury. Ex. D, Plt.’s Org. Petition,
¶ 15. Ortiz adopted Elaina in 2011. Ex. D, Plt.’s Org. Petition, ¶ 14.
When Elaina was ten, her health rapidly declined. Ex. D, Plt.’s Org. Petition,
¶ 17. She died in the hospital on September 15, 2018, the same day she was admitted.
Ex. D, Plt.’s Org. Petition, ¶¶ 17-19; see also, Ex. A, Matshes Affidavit, ¶ 6; Ex. B,
Andrews Affidavit, ¶ 5. Dr. Andrews and NAAG were notified of Elaina’s death by
an email from a senior forensic technician at the Medical Examiner’s office
employed by Lubbock County. Ex. A, Matshes Affidavit, ¶ 6; Ex. B, Andrews
Affidavit, ¶ 5. NAAG was informed a ten-year old girl suffered a skull fracture at an

early age and was cared for by her grandmother, Ms. Ortiz. Ex. A, Matshes Affidavit,
¶ 6; Ex. B, Andrews Affidavit, ¶ 5. Ortiz reported to a representative of the Medical
Examiner’s office that Elaina was believed to have been shaken at an early age and
was diagnosed with a skull fracture. Ex. A, Matshes Affidavit, ¶ 6; Ex. B, Andrews
Affidavit, ¶ 5. The incident “was not proven,” but Elaina was blind and had scoliosis,
possibly because of the incident ten years earlier. Ex. A, Matshes Affidavit, ¶ 6; Ex.
B, Andrews Affidavit, ¶ 5. Under these circumstances, and in his role as Lubbock
County Medical Examiner, Dr. Andrews determined an autopsy was necessary. Ex.
B, Andrews Affidavit, ¶ 5; Ex. A, Matshes Affidavit, ¶ 6; see also, Tex. Code of
Crim. Pro. Ann. Art. 49.25, § 6 (West 2018) (requiring an inquest by the medical
examiner under circumstances when a person dies within 24 hours of admission to
a hospital, when a person dies an unnatural death, or when the death was caused by
unlawful means).
Elaina’s remains, therefore, were taken into the custody of the Lubbock
County Medical Examiner’s office. See Ex. D, Plt.’s Org. Petition, ¶ 20. Dr.
Andrews was not in Lubbock and was not available to perform the autopsy. Ex. B,
Andrews Affidavit, ¶ 6; Ex. A, Matshes Affidavit, ¶ 7. Prior to the NAAG contract
with Lubbock County, Dr. Stephen Pustilnik, a pathologist, had performed autopsies

for the Lubbock County Medical Examiner’s office as an independent contractor. 1
Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. As a part of its contract,
NAAG agreed to provide for the management of the medical aspects of cases
performed by Dr. Pustilnik, including a determination of the cases to which he was
assigned and the scope of medical direction for those autopsies. Ex. A, Matshes
Affidavit, ¶ 4. Representatives of Lubbock County informed Dr. Andrews and Dr.
Matshes there were concerns about the quality of the autopsy work performed by
Dr. Pustilnik, and both Lubbock County and the District Attorney’s office preferred
that Dr. Pustilnik not perform autopsies on criminally suspicious deaths or child
deaths. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. But, because
Dr. Andrews would not be available to perform the autopsy for at least another week,
Dr. Andrews and Dr. Matshes concluded they should ask Dr. Pustilnik to perform
the autopsy. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
As part of a support plan for Dr. Pustilnik, Dr. Andrews provided written
directions and suggestions for the autopsy. Ex. A, Matshes Affidavit, ¶ 7 and Ex. 1;
Ex. B, Andrews Affidavit, ¶ 6 and Ex. 3. Dr. Andrews asked that Dr. Pustilnik
perform a standard, complete pediatric forensic autopsy and to preserve certain
organs and tissue: the brain and dura matter, the cervical spine, obvious skull
1
Dr. Pustilnik has never been an employee or contractor of NAAG. Ex. A, Matshes Affidavit, ¶
8.

fractures, the eyes and surrounding soft tissues, the thoracolumbar spinal cord, the
heart, the lungs, and liberal portions of tissues. Ex. A, Matshes Affidavit, Ex. 1; Ex.
B, Andrews Affidavit, Ex. 3. If any acute injuries were discovered, Dr. Andrews
recommended Dr. Pustilnik also do full-body soft tissue dissections. Ex. A, Matshes
Affidavit, Ex. 1; Ex. B, Andrews Affidavit, Ex. 3. NAAG provided in-person,
technical support by flying a NAAG Forensic Autopsy Technician to Lubbock. Ex.
A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
The removal and preservation of organs during an autopsy is often necessary
for the correct determination of the cause and manner of death. Ex. A, Matshes
Affidavit, ¶ 10 and Ex. 2 (recommending in cases of suspected head trauma in infants
and young children, e.g., removal of brain and cranial dura (at 206); removal and
examination of the eyes (at 210); examination and potential removal of the spinal
cord (at 210 and 211)); Ex. B, Andrews Affidavit, ¶ 8 and Ex. 4 (same). The organs
and tissues removed at Elaina’s autopsy were necessary to either accurately establish
whether her death was the result of a traumatic brain injury or to rule out a natural
disease process as the cause of her death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B,
Andrews Affidavit, ¶ 8. None of the organs or tissues removed at the autopsy were
used for research or any purpose other than an accurate determination of the cause
and manner of death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B, Andrews Affidavit, ¶ 8.

NAAG has never had any relationship with Ms. Ortiz. Ex. A, Matshes
Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶ 7. The only connection Dr. Andrews had
to Elaina’s autopsy was in his position as the Interim Lubbock County Medical
Examiner. Ex. B, Andrews Affidavit, ¶ 7. Likewise, the only connection NAAG or
its employees have with the autopsy was its contract to provide medical examiner
services to Lubbock County. Ex. A, Matshes Affidavit, ¶ 9. Neither Dr. Andrews
nor Dr. Matshes has had any communication with Ms. Ortiz. Ex. A, Matshes
Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶7.
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. Ex. A, Matshes Affidavit, ¶ 3. The only
involvement Dr. Andrews had with respect to the autopsy was his determination that
an autopsy was necessary and his consultation with Dr. Matshes about providing
instructions to Dr. Pustilnik. Ex. B, Andrews Affidavit, ¶ 9. All of his actions with
respect to the autopsy were made in his own professional judgment, were in good
faith, and with the belief they were appropriate in connection with the proper
operation of the Lubbock County Medical Examiner’s office in his role as Interim
Medical Examiner. Ex. B, Andrews Affidavit, ¶ 10.
Likewise, the only involvement Dr. Matshes had with respect to the autopsy
was consultation with Dr. Andrews about providing instructions to Dr. Pustilnik. Ex.

A, Matshes Affidavit, ¶ 11. He had nothing to do with the performance of the autopsy
or the selection of the organs and tissues to be retained. Ex. A, Matshes Affidavit, ¶
11. All of Dr. Matshes’ actions with respect to Elaina’s autopsy were made using his
own personal judgment, were in good faith, and in the belief that they were
appropriate in connection with the proper operation of the Lubbock County Medical
Examiner’s office pursuant to NAAG’s contract to perform those services. Ex. A,
Matshes Affidavit, ¶ 12.
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
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 Ortiz’s 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
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 applies here. First, the letter sent to Dr. Pustilnik was a
“communication” as defined by the statute. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(1) (stating a “communication” is the making or submitting of a document
in any form or medium). Moreover, the TCPA protects NAAG and National
Autopsy Assay Group, LLC for the communications made by Dr. Matshes and Dr.
Andrews. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d at 899-900.
Second, the communication was made in connection with a matter of public
concern. See Lippincott, 462 S.W.3d at 509. The directions sent to Dr. Pustilnik were
with regard to issues of health or safety (the successful prosecution of an abusive
crime); community well-being (same); the government (the Medical Examiner’s
Office of Lubbock County and its compliance with a Texas statute); and a public
official (instructions from the Chief Medical Examiner). See Tex. Civ. Prac. & Rem.
Code Ann. § 27.001(1). Accordingly, the communication from the Chief Medical
Examiner to the physician performing an autopsy on a child who may have died as
the result of abuse is a matter of public concern. Because the directions to Dr.

Pustilnik were a communication on a matter of public concern, the defendants
exercised their right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. §
27.001(3). Each cause of action alleged in Ortiz’s 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, applies to this suit. 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, Dr. Andrews and Dr. Matshes concluded they should ask Dr. Pustilnik
to perform the autopsy, despite concerns about his ability. Ex. A, Matshes Affidavit,
¶ 7; Ex. B, Andrews Affidavit, ¶ 6. As part of a support plan for Dr. Pustilnik, Dr.
Andrews, as the Chief Medical Examiner pursuant to Lubbock County’s contract
with NAAG, provided written directions and suggestions for the autopsy. Ex. A,
Matshes Affidavit, ¶ 7 and Ex. 1; Ex. B, Andrews Affidavit ¶ 2, ¶ 6, and Ex. 3. Thus,
the defendants communicated with Dr. Pustilnik to promote or pursue a common
interest: an investigation by autopsy into the death of a child who may have died

from abuse. Thus, the communication to Dr. Pustilnik constitutes the exercise of the
right of association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). Ortiz’s 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
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.
Ortiz brings several claims for the mishandling of remains. Plt.’s Orig. Pet. ¶¶
31-60. Ortiz also brings a claim for interference with the right to possession for final
disposition. Plt.’s Orig. Pet. ¶¶ 61-64. Finally, Ortiz claims a civil conspiracy among
all of the defendants.
1. Mental Anguish for the Mishandling of Remains
In Texas, there is no general duty to avoid negligently inflicting mental
anguish upon others. SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 543
(Tex. 2018). Rather, Texas law requires a special relationship as the basis for mental
anguish damages when the plaintiff has alleged the defendant negligently
mishandled a corpse. SCI Tex. Funeral Servs., Inc., 540 S.W.3d at 547-48.
No special relationship exists here between Ortiz and the defendants. The
autopsy was performed as a result of the duties the Medical Examiner’s office owes

to Lubbock County and the State of Texas.2 Because Elaina could have died because
of criminal abuse she suffered early in life, the Texas Code of Criminal Procedure
required an inquest into her death. See Tex. Code of Crim. Pro. Art. 49.25, § 6(a)(2)
and (4) (West 2018) (requiring an inquest by the medical examiner under
circumstances when the death was unnatural or was caused by unlawful means).
Moreover, an inquest was required because Elaina died within twenty-four hours of
admission to the hospital. See Tex. Code of Crim. Pro. Ann. Art. 49.25, § 6(a)(1).
Accordingly, the Medical Examiner’s Office here was required by statute to perform
the autopsy to investigate Elaina’s death. Its only duty was to the State of Texas and
Lubbock County.
Moreover, section 9 of article 49.25 provides that if, “in the opinion of the
medical examiner,” an autopsy is necessary, then it shall “immediately” be
performed by the medical examiner or a deputy. Tex. Code of Crim. Pro. Ann. Art.
49.25, § 9(a). If the medical examiner determines it is unnecessary to conduct a
complete autopsy to ascertain the cause of death, the medical examiner or deputy
may take samples of fluids, tissues, or organs to ascertain the cause of death or
whether a crime has been committed. Tex. Code of Crim. Pro. Art. 49.25, § 9(a).
Importantly, it is up to the medical examiner to determine whether or not a complete
2
This fact distinguishes this case from Terrill v. Harbin, 376 S.W.2d 945, 947 (Tex. Civ. App.—
Eastland 1964, writ dism’d).

autopsy is necessary and which samples should be taken. See Tex. Code of Crim.
Pro. Ann. Art. 49.25, § 9(a) (“in the opinion of the medical examiner an autopsy is
necessary;” “where a complete autopsy is deemed unnecessary by the medical
examiner”). In short, the Medical Examiner did not need Ortiz’s consent to have a
deputy perform the autopsy. Nor did the Medical Examiner need Ortiz’s consent as
to how that autopsy should be performed to investigate the cause of death. Moreover,
it would be contrary to the duties of the Medical Examiner to follow the wishes of a
family member in conflict with his duties under the statute.
Because there is no special relationship between Ortiz and the defendants, the
defendants owed no legal duty to Ortiz. See Noah v. Univ. of Tex. Med. Branch at
Galveston, 176 S.W.3d 350, 357 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)
(noting that, absent contract, no special relationship would have existed between
relatives of decedents and UTMB when it accepted bodies donated for medical
science).3 Because she cannot establish by clear and specific evidence a prima facie
case on her claims for the alleged mishandling of Elaina’s remains, this Court should
dismiss Ortiz’s legal action. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
3
Freeman v. Harris County, 183 S.W.3d 885, 890 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied), is distinguishable. There, relying on the test laid out in Lions Eye Bank v. Perry, 56 S.W.3d
872, 877 (Tex. App.—Houston [14th Dist.] 2001, pet. denied), the court found the statute could
serve as a basis for a special relationship. Lions Eye Bank, however, was disapproved by the
supreme court in SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 548 (Tex. 2018).
Moreover, the Houston court’s reading of section 49.25 is faulty; nothing in that statute provides
for a duty owed from the medical examiner’s office to the deceased’s relatives. The statute lays
out the duties the medical examiner owes to the State and the County, not the family.

2. Interference with the Right to Possession
Similarly, Ortiz cannot establish by clear and specific evidence a prima facie
case on her claim for interference with the right to possession. See Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(c). Next of kin have no right to possess a body other
than for burial or final disposition. Evanston Ins. Co. v. Legacy of Life, Inc., 370
S.W.3d 377, 385 (Tex. 2012). They do not have a general right to the tissues of a
decedent. Evanston Ins. Co., 370 S.W.3d at 385. And, as discussed above, the next
of kin here had no right to exclude the Medical Examiner from Elaina’s tissue
samples when his office was performing a duty required by Texas statute. See
Evanston Ins. Co., 370 S.W.3d at 385 (finding next of kin have no right to exclude,
except to seek damages in some circumstances for acts beyond their consent).
Ortiz cites Texas Health and Safety Code, section 711.002(a) as authority that
she had a right to the possession of Elaina’s tissues. This statute is inapplicable here.
Section 711.002(a) provides a priority for those who have the right to control a
decedent’s remains. Tex. Health & Safety Code Ann. § 711.002(a) (West 2017).
There is no dispute here that Ortiz had the right to control the disposition of Elaina’s
remains. But the statute does not speak to the issue here: whether Ortiz could require
the county Medical Examiner to take less tissue during his inquest.
Because next of kin do not have a general right to the tissues of a decedent,
Ortiz cannot establish by clear and specific evidence a prima facie case for each

essential element of her claim for a right of possession. See Evanston Ins. Co., 370
S.W.3d at 385; Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Accordingly, this
Court should dismiss her legal action on this claim. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c).
3. Conspiracy
The elements of a claim for conspiracy are: (1) a combination of two or more
persons; (2) who seek to accomplish an object or course of action; (3) the persons
reach a meeting of the minds on the course of action; (4) one or more unlawful, overt
acts are taken in pursuance of the object or course of action; and (5) damages occur
as a proximate result. First United Pentecostal Church of Beaumont v. Parker, 514
S.W.3d 214, 222 (Tex. 2017).
A conspiracy requires a specific intent to agree to accomplish something
unlawful or to accomplish something lawful by unlawful means. First United
Pentecostal Church of Beaumont, 514 S.W.3d at 222. The gist of a civil conspiracy
is the injury the defendants intended to be caused. Triplex Commc’ns, Inc. v. Riley,
900 S.W.2d 716, 720 (Tex. 1995). Moreover, a corporate agent cannot conspire with
its corporation while acting in his corporate capacity. Texas-Ohio Gas, Inc. v.
Mecom, 28 S.W.3d 129, 138 (Tex. App.—Texarkana 2000, no pet.). A defendant’s
liability for civil conspiracy depends on participation in an underlying tort;

conspiracy, therefore, is a derivative tort. Wooters v. Unitech Internat’l, Inc., 513
S.W.3d 754, 762 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
Here, Ortiz cannot establish by clear and specific evidence a prima facie case
for any essential element of her conspiracy claim. See First United Pentecostal
Church of Beaumont, 514 S.W.3d at 222; Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c). Moreover, because she cannot establish a prima facie case on her other
causes of action, there are no underlying torts on which to base the derivative tort of
conspiracy. See Wooters, 513 S.W.3d at 762. Accordingly, this Court should dismiss
Ortiz’s legal action for conspiracy. See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c).
C. The defendants have established defenses to the legal action.
Even if Ortiz 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
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.
First, official immunity extends to an action or decision that is discretionary;
ministerial acts, on the other hand, 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. Courts
consider several factors to determine when a government employee’s acts involve
“governmental” discretion:
1. The nature and importance of the function that the employee is performing;
2. The extent to which passing judgment on the exercise of discretion by the

employee will amount to passing judgment on the conduct of a coordinate
branch of government or an agency;
3. The extent to which the imposition of liability would impair the employee’s
free exercise of discretion;
4. The extent to which financial responsibility will fall on the employee;
5. The likelihood that harm will result to the public if the employee acts;
6. The nature and seriousness of the type of harm that may be produced; and
7. The availability to the injured party of other remedies and forms of relief.
Kassen, 887 S.W.2d at 12, n.8; Putthoff, 934 S.W.2d at 170. Applying these factors
to the performance of an autopsy, one court has found:
In conducting the autopsy of Ms. Ancrum, [the doctors] were

performing the important governmental function of investigating the
cause of her death for the purpose of detecting the commission of a
possible crime. This is a necessary and critical function in the
investigation and prosecution of crime. Had the autopsy revealed that a

crime occurred, it would have served as a fundamental step to
successfully prosecuting the offender and securing a fair trial for the
accused. The constant threat of lawsuits would unduly burden [the
medical examiner] and his staff in performing this function and would
inevitably influence cause of death determinations. This would
seriously harm the public by interfering with the efforts of law
enforcement to investigate crime and hinder the search for truth in the
criminal justice process.
Putthoff, 934 S.W.2d at 170. Thus, governmental discretion is exercised in
performing an autopsy. Putthoff, 934 S.W.2d at 171-72.
NAAG agreed to provide medical examiner services, including death
investigation services, under a contract with Lubbock County. Ex. A, Matshes
Affidavit, ¶¶ 4-5; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. As noted above,
medical examiners are entitled to official immunity. Putthoff v. Ancrum, 934 S.W.2d
164, 169-70 (Tex. App.—Fort Worth 1996, writ denied).
Further, as a part of its contract, NAAG agreed to manage the medical aspects
of autopsies performed by Dr. Pustilnik, including the scope of medical direction for
those autopsies. Ex. A, Matshes Affidavit, ¶ 4. In determining the scope and medical
direction of those autopsies, including Elaina’s, the defendants exercised discretion
because those determinations involved personal deliberation, decision, and
judgment. See City of Lancaster, 883 S.W.2d at 654. And, acting under contract to
perform medical examiner services, NAAG4, Dr. Andrews, and Dr. Matshes were
4
Official immunity can apply to an entity, such as NAAG, as well as to an individual. See
Guerrero, 977 S.W.2d at 834 (holding Mortician Services established as a matter of law its

performing a discretionary function when they gave Dr. Pustilnik suggestions as to
the tissues and organs to preserve in the autopsy. Such decisions of a party contracted
to provide medical examiner services are not ministerial. Accordingly, the
defendants meet the first element of the 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
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
entitlement to official immunity). Moreover, National Autopsy Assay Group LLC is entitled to
official immunity if its employees are. See Rice University v. Thomas, No. 01-14-00908-CV, 2015
WL 3522915, at *7 (Tex. App.—Houston [1st Dist.] June 4, 2015, no pet.) (mem. op.) (finding
binding precedent from the supreme court “is entirely clear” that a private entity may assert any
affirmative defense its employee has to liability).

evidence on good faith cannot be based on a general negligence standard.” Guerrero,
977 S.W.2d at 834.
Here, NAAG, Dr. Matshes, and Dr. Andrews acted in good faith, believing
their actions with regard to Elaina’s autopsy were appropriate in connection with the
proper operation of the Medical Examiner’s office. Ex. A, Matshes Affidavit, ¶ 12;
Ex. B, Andrews Affidavit, ¶ 10. Moreover, Dr. Matshes and Dr. Andrews have
referenced an article in their affidavits demonstrating several of the organs and
tissues they requested be preserved in the autopsy were standard requests when a
child is a suspected victim of abuse. Ex. A, Matshes Affidavit, ¶ 10 and Ex. 2
(recommending in cases of suspected head trauma in infants and young children,
e.g., removal of brain and cranial dura (at 206); removal and examination of the eyes
(at 210); examination and potential removal of the spinal cord (at 210 and 211)); Ex.
B, Andrews Affidavit, ¶ 8 and Ex. 4 (same).
The organs removed at Elaina’s autopsy were necessary to either accurately
establish whether her death was the result of a traumatic brain injury or to rule out a
natural disease process as the cause of her death. Ex. A, Matshes Affidavit, ¶ 10; Ex.
B, Andrews Affidavit, ¶ 8. None of the organs or tissues removed at the autopsy
were used for any purpose other than an accurate determination of the cause and
manner of death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B, Andrews Affidavit, ¶ 8.
Because the defendants here have shown a reasonably prudent person in the same or

similar circumstances would have taken the same actions, the good faith 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.
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. Ex. A, Matshes Affidavit, ¶ 3. Moreover,
NAAG agreed to provide the services of a Chief Medical Examiner, including death
investigation services as required by the Texas Code of Criminal Procedure. Ex. A,
Matshes Affidavit, ¶¶ 4-5; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. NAAG also
agreed to provide for the management of medical aspects of cases performed by Dr.
Pustilnik, including a determination of the cases to which he was assigned and the
scope of medical direction for those autopsies. Ex. A, Matshes Affidavit, ¶ 4.
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. 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 Ortiz
establishes 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
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.] 1998, writ denied). Further, communications given voluntarily,
rather than in response to a request for information, are privileged if the relationship
between the parties is such that it is within generally accepted standards of conduct

to furnish the information for the protection of the interest of the recipient. Levine,
S.W.3d at 648.
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, 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, when Dr. Matshes, and Dr. Andrews, on behalf of NAAG, made the
recommendations concerning Elaina’s autopsy, they and Dr. Pustilnik had an interest
in the autopsy being performed appropriately. In the past, Lubbock County and the
District Attorney’s office had raised concerns about the quality of the autopsies
performed by Dr. Pustilnik. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit,
¶ 6. In an effort to support Dr. Pustilnik, Dr. Andrews provided the letter containing

written directions and suggestions for the autopsy. Ex. A, Matshes Affidavit, ¶ 7 and
Ex. 1; Ex. B, Andrews Affidavit, ¶ 6 and Ex. 3. Under these circumstances, there
was a common interest in Elaina’s autopsy, and Dr. Pustilnik was entitled to know
what was expected of him by the Interim Chief Medical Examiner in the
performance of that autopsy. See Levine, 448 S.W.3d at 648; Holloway, 757 S.W.2d
at 813. Moreover, the information was furnished to protect the interests of Dr.
Pustilnik and to avoid the problems with the quality of his work that had arisen in
the past. See Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
Accordingly, the defendants have demonstrated by a preponderance of evidence that
the defense of a qualified privilege applies. See Burbage, 447 S.W.3d at 254.
Moreover, Ortiz cannot establish the defendants acted with malice. Rather,
both Dr. Matshes and Dr. Andrews stated in their affidavits that all of their actions
with respect to the autopsy were in good faith. Ex. A, Matshes Affidavit, ¶ 12; Ex.
B, Andrews Affidavit, ¶ 10. Accordingly, even if Ortiz 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. Dr. Matshes has no individual liability.
Finally, Dr. Matshes has no individual liability for the allegedly tortious
actions of National Autopsy Assay Group LLC or NAAG Pathology Labs, PC. 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, 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 and the managing member of
the LLC. Ex. A, Matshes Affidavit, ¶¶ 1-2. All communications Dr. Matshes had
related to the autopsy in question 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, ¶
11. All of Dr. Matshes actions related to the Castilleja autopsy were in the course
and scope of his employment duties with NAAG related to the proper operation of
the Lubbock County Medical Examiner’s office. See Matshes Affidavit ¶¶ 3, 12.
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 individual liability for the alleged tortious activity
of NAAG or the LLC because his acts on the corporation’s behalf are the corporate
acts of NAAG. The LLC had no involvement with the acts or omissions of which
Ortiz complained. See ACS Inv’rs, Inc., 943 S.W.2d at 432.
Ortiz alleges National Autopsy Assay Group, LLC and NAAG Pathology
Labs, PC were inadequately capitalized and were organized and operated as a mere
tool or business conduit as to each other and for Dr. Matshes. In other words, Ortiz
seeks to “pierce the corporate veil” and hold Matshes individually liable because the
LLC and NAAG are allegedly inadequately capitalized. Neither entity is

undercapitalized and Ortiz has no evidence to the contrary. Furthermore, inadequate
capitalization alone is not sufficient to establish alter ego and is merely one of the
factors to determine the application of the alter ego doctrine. Ramirez v. Hariri, 165
S.W.3d 912, 916 (Tex. App.—Dallas, 2005, no pet.). Alter ego applies when there
is such unity between a corporation and an individual that the separateness of the
corporation has ceased and holding only the corporation liable would result in
injustice. It is shown from the total dealings that the corporation and the individual,
including the degree to which corporate formalities have been followed and
corporate and individual property have been kept separately, the amount of financial
interest, ownership and control the individual maintains over the corporation, and
whether the corporation has been used for personal purposes. The rationale of alter
ego is “if the shareholders themselves disregard the separation of the corporate
enterprise, the law will also disregard it so far as necessary to protect individual and
corporate creditors.” Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.—1986).
See also, Texas Pattern Jury Charges - Business, Consumer, Insurance and
Employment PJC 108.2 (2018). Ortiz has not alleged, much less can she prove, the
other factors.
Ortiz’s claim of alter ego must fail because she has pleaded inadequate
capitalization as her sole ground and because there is no evidence of inadequate
capitalization or the other factors necessary to apply the doctrine of alter ego and

pierce the corporate veil. Furthermore, the LLC has no relationship to the acts or
omissions of which Ortiz complains.
Because Dr. Matshes has established by a preponderance of the evidence that
he has a valid defense, Ortiz’s 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.
However, the reasonableness of an attorney’s fee 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
or extreme, but rather moderate or fair. Sullivan, 488 S.W.3d at 299. These fees and

costs must be awarded even if only some of Ortiz’s claims are dismissed. See D
Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 442 (Tex. 2017).
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. 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 the 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 any of Ortiz’s causes of 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 Ortiz’s suit 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. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
Second, Ortiz cannot establish by clear and specific evidence a prima facie
case for each essential element of her claims. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c). As to her claims of the defendants’ alleged mishandling of remains, she
cannot demonstrate that there is a special relationship between her and the
defendants. See SCI Tex. Funeral Servs., Inc., 540 S.W.3d at 547-48. Without such
a special relationship, the defendants have no duty to Ortiz. Further, because she did
not have a general right to the tissues of a decedent, Ortiz cannot establish by clear
and specific evidence a prima facie case of her claim for a right of possession. See
Evanston Ins. Co., 370 S.W.3d at 385. Finally, Ortiz cannot establish a prima facie
case on the elements of a conspiracy, particularly since she cannot establish any
underlying tort. See First United Pentecostal Church of Beaumont, 514 S.W.3d at
222; Wooters, 513 S.W.3d at 762.
Third, even if Ortiz 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.
Accordingly, these defendants are entitled to dismissal of Ortiz’s suit under
the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005.
WHEREFORE, PREMISES CONSIDERED, Defendants EVAN MATSHES,
M.D.; SAM ANDREWS, M.D.; NATIONAL AUTOPSY ASSAY GROUP, LLC;
and NAAG PATHOLOGY LABS, PC 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;
3. Awarding sanctions against Ortiz 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.

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 DR. EVAN MATSHES,

NATIONAL AUTOPSY ASSAY GROUP, LLC, AND NAAG
PATHOLOGY LABS, P.C.
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

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:
Travis S. Ware VIA ELECTRONIC FILING

Benjamin P. Garcia
Crystal A. Link
office@waregarcialaw.com
WARE & GARCIA, PLLC
1915 Broadway
Lubbock, Texas 79401
ATTORNEYS FOR PLAINTIFF
Jon Mark Hogg VIA ELECTRONIC FILING

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

DR. SAM ANDREWS
________/s/Thomas C. Riney_______________
Thomas C. Riney

Exhibit A

CAUSE NO. 2019534421

§
Plaintiff §
§
vs. §
§ IN AND FOR
EVAN MATSHES, MD, SAM ANDREWS, §
MD, NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND NAAG PATHOLOGY §
LABS, PC, §
§
AFFIDAVIT OF EVAN MATSHES, M.D.
STATE OF CALIFORNIA §
§
COUNTY OF SAN DIEGO §
Before me, the undersigned authority, on this day personally appeared EVAN MATSHES,
M.D., who is personally known to me. After being duly sworn he deposed and stated as follows:
1. My name is Evan Matshes, M.D. I am over the age of 18, and I am legally
competent to make this affidavit. I have personal knowledge of the facts stated herein, and those
facts are true and correct.
2. I am the managing director ofNAAG Pathology Labs, PC, a professional medical
corporation incorporated in the State of California and having its principal place of business in San
Diego, California. I am licensed to practice medicine in California, Florida, and New Mexico. I
hold certification in anatomic pathology and forensic pathology from the American Board of
Pathology. I am a Fellow in the College of American Pathologists. I also hold specialty
certification in anatomic pathology as a Fellow of the Royal College of Physicians and Surgeons
of Canada.
AFFIDAVIT OF EVAN MATSHES, M.0. - PAGE 1 147335vl

3. National Autopsy Assay Group LLC ("the LLC") is a limited liability company
established in the State of Delaware. I am the managing member of the LLC. Dr. Sam Andrews
and I are employees of the LLC but are subcontracted to NAAG Pathology Labs, PC ("NAAG").
All actions of Dr. Andrews or myself relative to the Lubbock County Medical Examiner's Office
have been performed in connection with our employment duties with NAAG.
4. NAAG entered into a contract with Lubbock County effective August 5, 2018 to
provide the services of an Interim or Acting Chief Medical Examiner after the Chief Medical
Examiner for Lubbock County resigned. Under the terms of that agreement, Dr. Sam Andrews
served as Interim or Acting Chief Medical Examiner of Lubbock County. Among the services
NAAG contracted to provide was management of the medical aspects of cases performed by Dr.
Pustilnik, including a determination of the cases to which he was assigned and the scope and
medical direction of those autopsies. NAAG agreed to provide administrative support necessary
for Dr. Andrews to provide services as Interim Chief Medical Examiner of Lubbock County. This
agreement ended September 30, 2018 when it was replaced by another agreement.
5. The services NAAG provides to Lubbock County are death investigation services
conducted under Chapter 49 of the Texas Code of Criminal Procedure.
6. On September 15, 2018, Dr. Andrews and NAAG were notified by email of a report
of a death by a senior forensic technician at the Lubbock County Medical Examiner's office, James
Kason McGinnis, an employee of Lubbock County. According to that email, the Medical
Examiner's office had been contacted about the death of Elaina Castilleja by the house supervisor
at Covenant Women's & Children's Hospital in Lubbock. McGinnis was an employee of Lubbock
County. According to the information provided, the decedent was a 10-year old girl who had
incurred a skull fracture at an early age and was removed from the care of the decedent's mother.
AFFIDAVIT OF EvAN MATSHES, M.D. -PAGE 2 147335vl

The decedent's grandmother, Rebecca Ortiz, was granted care of the decedent. A brief medical
history of the child was provided by the hospital house supervisor. The history indicated that the
child was pronounced dead less than 24 hours after admission to the hospital. A representative of
the Lubbock County Medical Examiner's office spoke with the grandmother on September 15,
2018, and she advised that the decedent was believed to have been shaken at an early age, possibly
around or before the age of one and was diagnosed with a skull fracture at that time. The
grandmother advised that "the incident was not proven," but that the decedent was blind, had
scoliosis with the possibility that it was because of the incident, which occurred in 2008. Dr.
Andrews, as Lubbock County Medical Examiner, determined that under the circumstances, an
autopsy was necessary.
7. Dr. Andrews was not in Lubbock and was not available to perform the autopsy.
Prior to the time of the NAAG contract with Lubbock County, Dr. Stephen Pustilnik, a pathologist,
had performed autopsies for the Lubbock County Medical Examiner's office as an independent
contractor. Representatives of Lubbock County had advised me they had concerns about the
quality of the autopsy work performed by Dr. Pustilnik, and we were told that it was the preference
of Lubbock County and the District Attorney's office that he not perform autopsies on criminally
suspicious deaths, and child deaths. Dr. Andrews and I discussed the situation and concluded that
we should ask Dr. Pustilnik to perform the autopsy, as Dr. Andrews would not be available to do
so personally until August 22, 2018. Therefore, a support plan was devised that included Dr.
Andrews providing Dr. Pustilnik with written directions and suggestions for autopsy performance.
Furthermore, NAAG provided direct, in-person technical support for Dr. Pustilnik by way of
NAAG Forensic Autopsy Technician, Lisa Hang, who was flown to Lubbock from San Diego.
AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 3 147335vl

The directions to Dr. Pustilnik from Dr. Andrews is Exhibit 1 to this affidavit. Exhibit 1 has been
redacted to protect the confidentiality of another case unrelated to the Castilleja autopsy.
8. Dr. Pustilnik has never been an employee or contractor of NAAG.
9. NAAG has never had any relationship with Rebecca Villarreal Ortiz. The only
connection ofNAAG or its employees related to the autopsy of Elaina Castilleja was in connection
with its contract to provide services to Lubbock County in the Medical Examiner's office. I had
no communication with Ms. Ortiz.
10. I am familiar with the standards followed by medical examiners in Texas and
various other states. The removal and preservation of organs during an autopsy is often necessary
for the correct determination of both the cause and manner of death. I attach hereto as Exhibit 2
an article titled "National Association of Medical Examiners Position Paper: Recommendations
for Post-mortem Assessment of Suspected Head Trauma in Infants and Young Children." This
article appeared in Volume IV of the publication Academic Forensic Pathology: The Official
Publication of the National Association of Medical Examiners beginning at Page 206. It was
published in 2014. This publication is considered a reliable authority by those practicing in the
specialty of forensic pathology. The allegations of Ms. Ortiz that the removal of certain organs
was unnecessary are incorrect. The organs that were removed at autopsy were necessary to either
accurately establish whether the death was the result of a traumatic brain injury or to rule out a
natural disease process as the cause of death. None of the organs or tissue removed at autopsy
were used for research or any purpose other than an accurate determination of the cause and
manner of death.
11. My only involvement with respect to the Castilleja autopsy was consultation with
Dr. Andrews about providing instructions to Dr. Pustilnik because of the concerns about Dr.
AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 4 147335Vl

Pustilnik's ability that were communicated to me by representatives of Lubbock County. I have
subsequently acted as a consulting pathologist for several of the retained organs, but I had nothing
to do with the performance of the autopsy, nor selection of which tissues and organs were to be
retained.
12. All of my actions with respect to the Castilleja autopsy were made on my own
personal judgment, were in good faith, and in the belief that they were appropriate in connection
with the proper operation of the Lubbock County Medical Examiner's office pursuant to the
contract of NAAG to provide such services.
FURTHER AFFIANT SAYETH NOT.
~f;; r
VANMATSHES, M.D.
SL
SWORN TO AND SUBSCRIBED TO before me by EVA HES, M.D., on this the
_ _ day of the month of April, 2019.
Notary Public in and for the State of

California
AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 5 147335vl

CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202
~8i6ffi1t1c80:88tlH16 □ DD D[)f.] [J(] D□ DD DD D □ DJ DD D~ D B E ED llO'{] DD D B ~ DD DD DD DD J □ DD D0000 D[)
~ e Attached Document (Notary to cross out lines 1-6 below)

□ See Statement Below (Lines 1-6 to be ompleted only by document signer[s], not Notary)
Signature of Document Signer No. 2 (if any)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of S o..-.__.:::::i2 ~ o Subscribed and sworn to (or affirmed) before me
on this
by
d 'f tiaay of
Date
4:p r ;- f
Month
, 20Jj_,
Year
(1) t: 114=:r:, y() a..._.,,"t-~ e. $
(and (2) _ _ _ _ _ _ _ _ _ _ _ _ _ ),
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to

be the person(s) who appeared before me.
Place Notary Seal and/or Stamp Above

Signature c;;!!. ~ ~
Signature of Notary Public
J,, -
--------------OPTIONAL------------------.
Completing this information can deter alteration of the document or

fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Document Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Number of Pages: _ _ _ _ _ __
Signer(s) Other Than Named A b o v e : - - - - , . - - - - - - - - - - - - - - - - - - - - - -
92017 National Notary Association

1
EXHIBIT 1

NAAG Pathology Labs

A Professional Medical Corporation
19 September 2018
TO: Dr. Stephen Pustilnik

Forensic Pathologist
FR: Dr. Sam Andrews

Forensic Pathologist & Chief Medical Examiner
Dear Dr. Pustilnik,
RE: Autopsy directions
I hope that you are well. Thank you for your service to the people of Lubbock
County.
Over the course of the next couple of days, you are going to do several
autopsies. We have particular administrative interest in two of those cases:
1. 2018-0466 (Elaina Castilleja)

2.
The purpose of this letter is to outline a few basic expectations we have, given
the high profile nature of the cases.

URL www.naagpathology.com • Email consults@naagpatho logy.com
Phone 800-985-5346 • Fax 858-216-2233
CORPORATE 6540 Lusk Blvd., Suite C262 , San Diego, Californ ia, 92121
LABORATORY 11 I 07 Rose lle Street, Suites 226-228, San Diego, Cal ifornia, 92121
2018-0466
We understand this case to be a possible delayed abusive head trauma death.

Based on the available history, we are unaware of any "acute" injuries. In
addition to a standard, complete pediatric forensic autopsy, we ask that you:
1. Preserve the dura mater and brain in 20% formalin, suspended by a string
under the basilar artery
2. Remove the cervical spine (skull base to T1 or so) and preserve in10%
formalin
3. Remove and preserve any acute or remote skull fractures (or portion
thereof) that are obvious to you
4. Remove and preserve (in 20% formalin) the eyes and surrounding
periocular soft tissues
5. Remove and preserve (in 20% formalin) the remaining portions of the
thoracolumbar spinal cord
6. Remove, flush , hang and preserve the heart in 10% formalin
7. Remove, perfuse (through the bronchial tree) and preserve each lung
8. Liberally retain tissues in your stock jar (do not prepare any histology
cassettes at this time; this case will be "cut in" at our labs in San Diego)
If you find any acute injuries, you will likely need to do full body soft tissue
dissections (chest and abdomen, back, extremities).
-We understand this to be a case of "fall" vs. "collapse".
Pa1e2of3
SP - 09/29/2018 NAAG Patholo Labs
1.
We have flown our Chief Forensic Pathology Technician Ms. Lisa Hang to
Lubbock to provide you with assistance, as required . Lisa is there to help you,
and to represent the Lab, since she will be assisting the NP team in processing
the specimens you retain.
If you have any questions or concerns, please do not hesitate to reach out and
contact me. You should also feel free to speak with Kristii Johnson or Lisa Hang
directly.
With kind regards ,
NAAG PATHOLOGY LABS P.C.

per
Sam Andrews BSc MD FRCPC FCAP D-ABP

Lubbock County Chief Medical Examiner
CC: Lisa Hang

Kristii Johnson
Pa1e3 of3
EXHIBIT 2
NAME POSITION PAPER
National Association of Medical Examiners Position Paper:

Recommendations for the Postmortem Assessment of
Suspected Head Trauma in Infants and Young Children
James R. Gill MD, Thomas Andrew MD, M.G.F. Gilliland MD, Jennifer Love PhD,
Evan Matshes MD, R. Ross Reichard MD
ABSTRACT: The National Association of Medical Examiners convened a panel to create a

position paper for recommendations for the investigation of infant deaths due to inflicted head
trauma. The correct certification of both the cause and manner of death is dependent upon
an evaluation of all available data including information derived from the investigation, scene,
postmortem examination, and ancillary studies. This paper provides recommendations for the
forensic pathologist on what constitutes the dataset to be produced during the postmortem
James R. Gill MD is the Chief examination of infants who have died of, or have apparently died of, inflicted head trauma.
Medical Examiner for the State of Specifically, this paper describes 1) procedures, 2) ancillary laboratory tests, and 3) forms
Connecticut. of documentation that are important in the investigation of these deaths. The evaluation and
Author Affiliations: New Hampshire documentation of such infant deaths involves the production of a detail oriented and thor-
Office of Chief Medical Examiner, oughly documented examination that is independently reviewable to support the multitude of
Concord, NH (TA), Brody School of inquiries that may follow from the public and the criminal justice system.
Medicine at East Carolina University,
Department of Pathology and
Laboratory Medicine, Greenville, KEYWORDS: Forensic pathology, Head trauma, Infant, Homicide
NC (MG), Harris County Institute
of Forensic Sciences, Houston,
TX (JL), New Mexico Office of the
Medical Investigator, Albuquerque, INTRODUCTION prosecution, dissolution of families, and putting
NM (EM), Mayo Clinic - Anatomical other children at risk. As such, NAME convened
Pathology, Rochester, MN (RR). The National Association of Medical Examiners a panel to generate recommendations for the in-
Contact Dr. Gill at: (NAME) was founded with “the dual purposes vestigation of these deaths. Complementary to a
jgill@ocme.org. of fostering the professional growth of physician thorough death investigation, the goal of the au-
Acad Forensic Pathol death investigators and disseminating the profes- topsy is not only to aid in the determination of the
2013 4 (2): 206-213 sional and technical information vital to the con- cause and manner of death, but also to produce an
https://doi.org/10 23907/2014.032
tinuing improvement of the medical investigation independently reviewable dataset that allows the
of violent, suspicious and unusual deaths” (1). original forensic pathologist (and others who fol-
© 2014 One method of fulfilling this mission is the pub- low) the best opportunity to review primary data
National Association of Medical Examiners lication of autopsy standards and position papers and potentially answer unanticipated future ques-
(2-5). NAME has previously published position tions. As Moritz stated, “If a negative or positive
papers on recommendations for the investigation postmortem finding is so important that it may
and certification of cocaine, heat-related, and make the difference between the freedom or im-
opioid deaths (3-5). prisonment, or the life and death of someone, ev-
ery attempt should be made to protect, preserve,
Fatalities due to traumatic brain injury (TBI) and record it for others to see and evaluate” (6).
among infants/young children, particularly ho-
micides, are among the most challenging in- Autopsy protocols have been developed for car-
vestigations for a forensic pathologist for many diac, metabolic, and sudden infant deaths (7-13)
reasons: any death in this age group may elicit to ensure consistency and comprehensive exami-
passionate responses even by trained profession- nations that look for a broad range of diseases.
als, the decedent may have been seen recently by Similarly, this paper’s aim is to describe an
Page 206 • Volume 4 Issue 2
a physician, a caregiver may be the perpetrator, autopsy protocol to facilitate a thorough, inde-
and the wrong diagnosis may result in a wrongful pendently reviewable investigation of pediatric
Table 1: Specific Autopsy Reporting and Procedures for Suspected Pediatric Head Injury Deaths
1. Photography including overall full body external color images with close-ups of specific findings and pertinent
negative findings.
2. A radiological skeletal survey with, as indicated, an internal examination of the musculoskeletal system to document
and/or exclude soft tissue or bone injury.
HEAD TRAUMA POSITION PAPER

3. Description (color, size, location) and photographic documentation of intracranial hemorrhage (epidural [EDH]),
subdural [SDH], or subarachnoid [SAH]).
4. Examination of the formalin-fixed brain, cranial dura, and spinal cord and the ability to consult with a board-certified
neuropathologist.
5. Description of the eyes and optic nerves both grossly (with photographic documentation) and microscopically:
A. Optic nerve sheath: describe the extent and location (subdural, subarachnoid, intradural, extraocular, orbital
fat) of any hemorrhage.
B. Retina: describe any hemorrhage/injury including the layers involved (preretinal, retinal, subretinal), extent
(few, numerous, extensive), and distribution (posterior pole, equatorial, and peripherally, including whether
they abut the ora serrata).
C. A neuropathologist or ophthalmic pathologist consultation may be useful.
6. Describe injury and hemorrhage of the anterior and posterior neck.
7. Medical record review as available for correlation with the history and autopsy findings.
head injury deaths. NAME has already published importance of the detection and documentation
general autopsy standards that are applicable to of other disease processes and injuries involving
infants/children with apparent head trauma. This the torso and extremities is vital.
traumatic brain injury protocol is not meant to
replace those preexisting standards but to pro- DISCUSSION
vide detailed techniques, procedures, and other
recommendations for these investigations. Each Initial Autopsy Investigation
case is unique, and this protocol is not meant as a
substitute for professional judgment. The follow- The initial autopsy investigation includes digital
ing protocol, however, may be considered prac- photography and full body radiologic imaging
tice recommendations for these investigations performed prior to the internal examination.
endorsed by the NAME Board of Directors.
Digital Photography
Infants die suddenly and unexpectedly for a
myriad of reasons that span the spectrum from Integral to the development of a dataset that fa-
natural disease to inflicted injury. Infant/child- cilitates independent case review is high qual-
hood deaths due to TBI may have no history or ity, color photography. Unlike film photography,
external evidence of trauma; therefore, unexpect- digital imaging allows the prosector to know
ed and unexplained infant/childhood deaths are immediately if the image is properly captured
thoroughly evaluated at the outset as they may (14). Therefore, digital photography is the pre-
be homicides or due to rare natural disease. As ferred method for photographic documentation
such, these deaths undergo a uniformly thorough for these investigations. A core list of recom-
investigation and documentation through the ini- mended photographs is included in Table 2. In
tial stages of the evaluation, documentation, and general, all external surfaces of the body are pho-
evisceration. As pathologic findings emerge dur- tographed with close-up photographs of specific
ing the course of the examination and prosection, findings. Important internal images of injury and
the necessity and/or utility of ancillary dissec- pertinent negative findings include subscalpular
tions and studies will become apparent, and their views, subdural/epidural/subarachnoid hemor-
selection can be tailored by the forensic patholo- rhage, skull, brain (external and representative
gist. cross sections), and eyes, including the optic
nerves, and subcutaneous and skeletal injury.
The subsequent protocol describes a progression
of relevant examinations and processes for the Plain Film Radiography
thorough description and documentation of per-
tinent findings (Table 1). Although the focus of As skeletal injury may not be detected during a
the paper is on the central nervous system, the standard autopsy, healed and healing fractures
Gill et al. • Page 207
Table 2: Core Photographs to be Obtained in Cases with Head Trauma or Suspected Head Trauma*
1. Identification photo (face)
NAME POSITION PAPER
2. Both sides of the face
3. Extended anterior neck
4. Chest, abdomen, and back
5. Genitals and perianal region
6. Arms and legs including wrists, ankles, and hands
7. Layered soft tissue plane dissections (chest and abdomen, scalp)
8. Exposed pericranial surfaces following usual reflection of the scalp
9. Exposed ectocranial surfaces following pericranial membrane removal
10. Epidural, subdural, and subarachnoid hemorrhages
11. Exterior surfaces of the brain and spinal cord
12. Representative cross sections of the brain and spinal cord
13. The cervical spine and/or cervical nerve roots, as indicated
14. External and internal surfaces of the eyes
*A case number should be visible in each photograph and a reference scale included in at least one photograph of major
wounds and injury to allow for 1:1 reproduction (15).
may be missed (16). Therefore, full body radio-

graphs, which may aid in the detection of these Table 3: Pediatric Radiologic Skeletal Survey
lesions, are indicated when investigating a death 1. Three views of the skull
with potential inflicted trauma. A radiologic skel- a. Anterior-Posterior (AP)
etal survey is necessary for the evaluation of b. Towne’s (30% angle view of the mandibular
condyles and the midfacial skeleton)
unexplained infant/childhood deaths that come c. Lateral
to the attention of the medical examiner/coroner
(ME/C) (16, 17). A pediatric skeletal survey pro- 2. Two views of the cervical spine
a. AP
tocol is provided in Table 3 (if board-certified ra- b. Lateral
diologists are not available to define the pediatric
skeletal survey). Forensic pathologists are trained 3. Two views of the trunk / torso
a. AP
to examine plain film radiographs. As some pe- b. Lateral
diatric fractures may be subtle and disease may
simulate fractures, consultation with a pediatric 4. Two views of the ribs
radiologist may be useful in some instances. a. LPO (Left posterior oblique)
b. RPO (Right posterior oblique)
Advanced Radiologic Techniques 5. Four views of the upper extremities

a. Left upper extremity
b. Right upper extremity
Postmortem computed tomography (CT) and c. Left hand
magnetic resonance imaging (MRI) offer the d. Right hand
ability to provide unobstructed and three-di-
6. Four views of the lower extremities
mensional visualization of body lesions. Some a. Left lower extremity
offices have in-house scanners or have arranged b. Right lower extremity
access with local hospitals. While these proce- c. Left foot
d. Right foot
dures likely provide superior results for certain
injuries over plain films, at the current time, the
strengths and weaknesses of each modality have MRI remains at the discretion of the forensic pa-
yet to be fully defined in the forensic autopsy thologist and subject to the availability of facili-
setting. In addition, plain film radiographs con- ties and funding for such modalities (18). While
tinue to be the choice for the clinical evaluation postmortem CT/MRI currently may be a useful
for most fractures in children. The use of CT/ adjunct, the external and internal autopsy exami-
nation remains the best method for the postmor- Skull: documentation of the location, dimension,
tem diagnosis of injury (19). Since some infants type (e.g., linear, depressed, comminuted, dia-
or children who ultimately die from injuries may static) of fracture(s) is achieved through the nar-
have a survival period in the hospital, antemor- rative report, digital photography, and radiologic
tem advanced imaging often has been obtained. images; some forensic pathologists may choose
Admission imaging and other hospital CT and to supplement their reports with diagrams. Skull
MR scans may provide valuable information and fractures may be subtle in the young pediatric

should be sought and reviewed. population and therefore removal of the pericra-
nial membranous soft tissues along with the cra-
External and Internal Examination nial dura allow them to be better identified and
examined in detail. Microscopic sections help
Depending on the age of the infant/young child, confirm and document gross findings and may be
certain body measurements (e.g., head circum- useful for assessment of the stage of healing.
ference) in addition to length and weight may
be useful. A search for trace evidence and sexual Hemorrhage: the type [epidural (EDH), subdural
assault evidence collection, if indicated, is done (SDH), or subarachnoid (SAH)], location, size,
prior to washing the body to better visualize inju- color, and adherence are documented through ap-
ries. An external and internal examination is per- propriate use of narrative description and digital
formed per the NAME Forensic Autopsy Perfor- photography. The size of SDH and EDH, for ex-
mance Standards which also are followed when ample, may be documented by volume, weight,
describing an injury (e.g., type, location size, or three-dimensional measurements. The effects
shape, pattern) (15). of the hemorrhage on the brain (e.g., compres-
sion, herniation, shift) are noted in the autopsy
Specialized Autopsy Investigations When report. Microscopic sections help confirm and
Suspicious Findings are Encountered document gross findings and may be useful for
assessment of the stage of healing (21, 22).
As the autopsy progresses, findings suspicious
for inflicted traumatic brain injury (iTBI) may Brain: for optimal results, the brain and cranial
be detected. If so, the following specific exami- dura should be fixed in formalin (usually for a
nations and documentation of particular findings minimum of 10-14 days). Forensic pathologists
are recommended. These are described by body are trained to diagnose and describe traumatic
region. brain injuries. As some neuropathologic diseas-
es may be subtle or mimic trauma, consultation
Head with a board-certified neuropathologist may be
warranted. Express mail delivery services, gross
Scalp/subscalpular: the number, location, and photography, tissue retention, and microscopic
size of scalpular and subscalpular hemorrhages slides allow for consultation even after the initial
are best documented through a combination of brain dissection. Pertinent positive and negative
the photograph(s) and narrative description(s). gross and microscopic findings include: hypox-
Correlation should be made between sites of ia-ischemia, contusion, contusion hematomas,
hemorrhage and medical intervention (i.e., prior diffuse axonal injury, presence/absence of brain
surgery). Other discrete areas of hemorrhage swelling and herniation (type and extent), intra-
may occur, such as along cranial sutures from di- cerebral hemorrhage (location and extent), vas-
astasis due to marked brain swelling. The docu- cular malformations, congenital anomalies, and
mentation should convey the information neces- other focal lesions. Examination of the cerebral
sary for users of the autopsy report to determine dura includes description of any pathology (e.g.,
when hemorrhage is either due to a secondary subdural blood, surgical defects) and evaluation
process or a direct result of trauma. If there is (opening) of the sinuses (e.g., thrombosis). Mi-
concern for facial injury not apparent externally, croscopic examination of the dural sinus may
a formal face dissection is possible (20). Detec- help distinguish thrombus from postmortem con-
tion of otherwise unknown or underappreciated gealed blood.
impact sites of the face may change the context
of the infant death from one of non-impact to Microscopic sections for suspected inflicted trau-
one with demonstrable impact. Intraoral exami- matic brain injury include evaluations of pathol-
nations may reveal frenulum, inner cheek, and ogy identified grossly and sampling that allows
tongue injuries. Shaving of hair allows for better assessment of possible natural disease processes,
evaluation and documentation of scalp injuries. hypoxic-ischemic brain injury, and traumatic
Careful examination of the ears includes looking axonal injury. Hypoxic-ischemic brain injury in
inside and behind the ears. infants/children has a characteristic distribution
of injury, and those regions should be included
Table 4: Histologic Sampling for Hypoxic-Ischemic
in the evaluation in addition to regions typically
Brain Injury
involved in adults. A list of locations for his-
NAME POSITION PAPER
tologic sampling is included in Table 4. Diag- 1. Border zone (i.e., frontoparietal region)
nosis of diffuse traumatic axonal injury (dTAI)
requires traumatic axonal injury in multiple lo- 2. Deep gray structures (basal ganglia/thalamus)
cations including the corpus callosum, cerebral 3. Hippocampi (including subiculum)
hemispheric white matter, and brainstem. Infants
have been reported to have traumatic axonal in- 4. Midbrain (inferior colliculus)
jury isolated within the brainstem (23). Histo-
logic sampling for dTAI in infants and children 5. Pons
includes routine hematoxylin and eosin (H&E) 6. Cerebellum
sections. If available, examination with amyloid
precursor protein (APP) immunostain may be
useful in select instances. A list of locations for Table 5: Histologic Sampling for Diffuse Traumatic
histologic sampling for dTAI is included in Ta- Axonal Injury (dTAI)
ble 5. Limited sampling has been demonstrated 1. Posterior corpus callosum (near splenium)
to preclude the diagnosis of dTAI; therefore, if
traumatic axonal injury is present but insufficient 2. Parasagittal white matter
to diagnose dTAI, additional (bilateral) histolog-
3. Posterior limb of the internal capsule
ic sections should be evaluated. Assessment of
APP immunostaining patterns due to trauma and 4. Midbrain, pons, and medulla
a variety of other processes has previously been
reported (23-25). Microscopic evaluation for
natural disease processes includes examination Ocular examination: monocular indirect ophthal-
of neocortex, deep gray structures, brainstem, moscopy is a noninvasive and nondestructive
and cerebellum. Histologic sampling and use of technique to view the retina prior to autopsy and
special stains, however, may vary depending on the equipment is less expensive than that needed
the clinical history and gross pathology identified for ophthalmic endoscopy (27), however, it does
at autopsy. Marked non-perfused brain changes require additional equipment and training. A
(so-called “respirator brains”), for example, may gross dissection and microscopic examination of
dramatically affect the gross evaluation and hin- the eyes also is possible at autopsy. The interpre-
der histologic sampling and diagnosis. tation of retinal hemorrhages is beyond the scope
of this paper. Forensic pathologists, however,
Histologic evaluation of the cerebral dura is use- have a duty not only to diagnose and interpret,
ful to assess gross pathology and evaluate for but also to document and preserve findings. As
more subtle processes. Evaluation for intracel- an autopsy is often the best and sometimes only
lular iron deposition may facilitate assessment of chance to diagnose, confirm, or exclude certain
the stage of healing in SDH and EDH. The in- findings, pathologists, as the independent docu-
terface between sub/epidural blood and ongoing menters of facts, are best to err on the side of doc-
tissue healing is the best site for histologic evalu- umentation. A recent prospective clinical study
ation. Although there are criteria for the stages indicated that the assessment of retinal hemor-
of healing of a SDH, many variables affect this rhages may be useful as a predictor of iTBI (28).
process (e.g., size of hematoma, source of blood, Pending the publication of additional research, at
age of the individual), resulting in a somewhat a minimum, the ocular examination serves as a
predictable but potentially variable course (22). quality assurance measure that may confirm or
Retention of representative cortical regions, deep refute clinically diagnosed retinal hemorrhages.
gray structures, brainstem, and cerebellum may Therefore, the removal and examination of the
prove useful. In addition, samples from contra- eyes in instances of inflicted or suspected-inflict-
lateral white matter regions (e.g., parasagittal ed traumatic brain injury is recommended.
white, posterior limb of internal capsule) may be
necessary to diagnose or exclude dTAI. A technique for removal and examination of the
eyes has previously been published (29). After
Spinal cord: the spinal cord is examined at all removal, the eyes and periocular soft tissues are
three levels (cervical, thoracic, and lumbar). fixed in formalin prior to microscopic examina-
Some have recommended removal of the brain tion. For optic nerve sheath hemorrhage, the lo-
with the spinal cord still attached (26), but it is cation (subdural, subarachnoid, intradural, extra-
unclear if this technically difficult dissection ocular, orbital fat) is documented in the autopsy
yields any diagnostic value. report. For retinal hemorrhages, the involved lay-
ers (preretinal, retinal, subretinal), extent (few, description of the stage of healing (i.e., bone cal-
numerous, extensive), and distribution (poste- lus formation) is included in the autopsy report.
rior pole, equatorial, and peripherally, including Forensic pathologists are trained to examine
whether they abut the ora serrata) are described. plain film radiographs and bones. As some os-
Special stains, such as Prussian blue to identify seous findings may be unusual normal anatomic
hemosiderin, may be useful in some instances. variants, consulting with a board-certified foren-
Collection of vitreous will disturb the retina and sic anthropologist may be useful. Other useful

should be postponed until adequate examination techniques and examinations include: stripping
of the retina, the optic nerve, and brain is done the parietal pleural lining to better visualize rib
and the value of the vitreous analysis for the spe- fractures, resecting the spinal column with the
cific case is considered. Photography with appro- medial ribs for further evaluation for posterior
priate lighting can aid in the documentation of rib fractures, and histologic sections of cutane-
ocular findings. ous/subcutaneous injuries (Prussian blue can
identify hemosiderin).
Neck
Ancillary Studies
Infants and children who die of inflicted injuries
may have injuries of the anterior and posterior Depending upon the circumstances and autopsy
neck. In addition to the standard anterior neck findings, ancillary studies for infectious (e.g., vi-
dissection, a posterior neck dissection also may ral, bacterial cultures), hereditary, metabolic, or
reveal internal injury. Injuries of the neck have thrombophilic diseases may be indicated.
been proposed to explain potential mechanisms
of death and techniques have been described for Records
the examination of the anterior and posterior
neck intrinsic spine structures/nerve roots (30- Review of the medical records including ante-
37). If the prosector is concerned for intrinsic mortem CT/MRI reports should be done as they
structural spinal/nerve root injury, then these may provide relevant clinical information. Re-
structures may be evaluated by various methods. view of reports generated by other agencies such
One method is an en bloc dissection of the cervi- as child protective services and law enforcement
cal osseous and neural structures with formalin investigation findings also may guide the foren-
fixation (37). Another is an in situ method that re- sic pathologist’s investigation and therefore these
moves the spinal cord and attached ganglia with- should be requested.
out the surrounding bone and soft tissues (38). In
this technique, the laminae are cut and the spi- CONCLUSION
nous processes removed. The lateral aspects of
the neural arches are then removed by cutting the The investigative value of each of the described
articulating facets and pedicles of the vertebrae. studies is often unknown at the onset of the au-
The freed sections of bone are removed and the topsy. Many procedures performed during an au-
spinal cord is removed with the ganglia attached. topsy create irreversible changes to tissues and
thus proactive documentation is critical. Ulti-
Trunk and Upper and Lower Extremities mately, the forensic pathologist must use medical
judgment on how to conduct each autopsy exam-
The NAME autopsy performance standards in- ination but would be wise to heed the admonition
clude procedures and descriptions for trunk in- that “I would rather explain why I did an exami-
juries. A subcutaneous examination of the arms, nation than why I did not.” In these instances, it
legs, and back and buttocks may improve detec- may be stated that the examination was done in
tion of occult subcutaneous and deep hemor- accordance with recommendations endorsed by
rhage (39). the Board of Directors of the National Associa-
tion of Medical Examiners.
Of particular importance in pediatric iTBI are
the identification and description of rib and other DISCLOSURES
skeletal fractures. In addition to radiographs, an
in situ skeletal examination may be useful to The opinions and conclusions of this paper have
further document or exclude injury. An in situ been reviewed and approved by the National As-
examination may include exposure of the shaft sociation of Medical Examiners Board of Direc-
and epiphyseal cartilages of the ribs, clavicles, tors and as such are endorsed by NAME. These
long bones, and scapulae (40). Traumatized or opinions and positions are based on a consensus
abnormal structures may be removed for addi- of the current literature, knowledge, and prevail-
tional analysis including gross (i.e., dry bone) or ing theories on this topic. As Scientific knowl-
histologic examination (41-43). When possible, a edge and experience grow, NAME reserves the
right to revise or update these opinions. The 12) Bove KE. Practice guidelines for autopsy pathology:
process by which NAME position papers are the perinatal and pediatric autopsy. Autopsy Commit-
tee of the College of American Pathologists. Arch
initiated, written, reviewed, and approved is Pathol Lab Med. 1997 Apr; 121(4):368-76.
NAME POSITION PAPER
publically available at https://netforum.avectra. 13) Ackerman MJ, Tester DJ, Driscoll DJ. Molecular
com/temp/ClientImages/NAME/2c26a527-f992- autopsy of sudden unexplained death in the young. Am
4f70-9d03-7941bff5319d.pdf. All scientific posi- J Forensic Med Pathol. 2001 Jun; 22(2):105-11.
tion papers endorsed by the National Association 14) Oliver WR. Considerations for gross autopsy photogra-
of Medical Examiners automatically expire five phy. Acad Forensic Pathol. 2011 Jul; 1(1):52-81.
years after publication unless reaffirmed, revised, 15) Peterson GF, Clark SC. Forensic autopsy performance
or retired at or before that time. This work is a standards. Marceline (MO): National Association of
product of NAME and as such, was not subjected Medical Examiners; 2006. 27 p.
to Academic Forensic Pathology Journal edito- 16) McGraw EP, Pless JE, Pennington DJ, White SJ. Post-
mortem radiography after unexpected death in neonates,
rial review. infants, and children: should imaging be routine? AJR
Am J Roentgenol. 2002 Jun; 178(6):1517-21.
The editors and publication staff do not report 17) Adamsbaum C, Mejean N, Merzoug V, Rey-Salmon
any relevant conflicts of interest. C. How to explore and report children with suspected
non-accidental trauma. Pediatr Radiol. 2010 Jun;
REFERENCES 40(6):932-8.
18) Nolte K, Mlady G, Zumwalt R, et al. Postmortem X-ray
1) National Associatation of Medical Examiners [Inter- computed tomography (CT) and forensic autopsy: a
net]. Marceline (MO): The Association; c2005-2014 review of the utility, the challenges, and the future
[cited 2014 Jan 9]. Available from: https://netforum avectra implications. Acad Forensic Pathol. 2011 Jul; 1(1):4-50.
com/eweb/DynamicPage aspx?WebCode=LoginRequired& 19) Molina DK, Nichols JJ, Dimaio VJ. The sensitivity of
Site=NAME computed tomography (CT) scans in detecting trauma:
2) Peterson GF, Clark SC. Forensic autopsy performance are CT scans reliable enough for courtroom testimony?
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27(3):200-25. 20) Collins K. Special autopsy dissections. Northfield (IL):
3) Stephens BG, Jentzen JM, Karch S, et al. National College of American Pathologists; 2010. 50 p.
Association of Medical Examiners position paper on 21) Munro D, Merritt H. Surgical pathology of subdural
the certification of cocaine-related deaths. Am J Forensic hematoma. Arch Neurol Psych. 1934; 35:65-78.
Med Pathol. 2004 Mar; 25(1):11-3.
22) Hirsch CS, Armbrustmacher V. Spitz and Fisher’s
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for the diagnosis of heat-related deaths: National (IL): Charles C Thomas; c2006. Chapter 19, Part 1,
Association of Medical Examiners. Position paper. Trauma of the nervous system; p. 994-1077.
National Association of Medical Examiners Ad Hoc
23) Reichard RR, White CL 3rd, Hladik CL, Dolinak D.
Committee on the Definition of Heat-Related Fatalities.
Beta-amyloid precursor protein staining of nonacci-
Am J Forensic Med Pathol. 1997 Mar; 18(1):11-4.
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5) Davis GG, National Association of Medical Examiners autopsies. J Neurotrauma. 2003 Apr; 20(4):347-55.
and American College of Medical Toxicology Expert
24) Geddes JF, Vowles GH, Beer TW, Ellison DW. The
Panel on Evaluating and Reporting Opioid Deaths.
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paper: recommendations for the investigation, diagnosis,
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Am J Clin Pathol. 1956 Dec; 26(12):1383-97.
Exp Neurol. 2003 Mar; 62(3):237-47.
7) Basso C, Burke M, Fornes P, et al. Guidelines for
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Technical communication: rationale and technique for
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examination of nervous system in suspected infant
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infant whiplash-shake injury syndrome: a clinical and head injury; p. 346.
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536-40. In: Spitz W, Spitz D, editors. Spitz and Fisher’s medico-
33) Shannon P, Smith CR, Deck J, et al. Axonal injury and legal investigation of death. 4th ed. Springfield (IL):
the neuropathology of shaken baby syndrome. Acta Charles C Thomas; 2006. p. 1325.
Neuropathol. 1998 Jun; 95(6):625-31. 40) Love JC, Sanchez LA. Recognition of skeletal fractures
34) Geddes JF, Hackshaw AK, Vowles GH, et al. Neuro- in infants: an autopsy technique. J Forensic Sci. 2009
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of brain damage. Brain. 2001 Jul; 124(Pt 7):1290-8. 41) Love JC, Derrick SM, Wiersema JW. Skeletal atlas of
35) Adams VI. Autopsy technique for neck examination. I. child abuse. New York: Humana Press; 2011. 136 p.
Anterior and lateral compartments and tongue. Pathol 42) Kleinman PK, Marks SC, Blackbourne B. The metaphy-
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Annu. 1991; 26 Pt 1:211-26. 43) Lonergan GJ, Baker AM, Morey MK, Boos SC. From
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Exhibit B

CAUSE NO. 2019534421

§
Plaintiff §
§
vs. §
§ IN AND FOR
LABS, PC, §
§
AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D.
STATE OF TEXAS §
§
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day personally appeared SAM WILLIAM
ANDREW S, M.D., who is personally known to me. After being duly sworn he deposed and stated
as follows:
1. My name is Sam William Andrews, M.D. I am over the age of 18, and I am legally
competent to make this affidavit. I have personal knowledge of the facts stated herein, and those
facts are true and correct. I am the licensed to practice medicine in Texas and California. I am
certified in forensic pathology and anatomical pathology by the American Board of Pathology,
and anatomical pathology by the Royal College of Physicians and Surgeons of Canada.
2. I am the duly appointed Chief Medical Examiner for Lubbock County, Texas.
During all times relevant to this lawsuit, I served as the interim Chief Medical Examiner or Chief
Medical Examiner for Lubbock County and performed the governmental function of Chief
Medical Examiner for the County. I am also an employee of National Autopsy Assay Group LLC
AFFIDAVIT OF SAM W ILLIAM ANDREWS, M.D. - PAGE I 147371 v l

("the LLC"). I am sub-contracted by the LLC to NAAG Pathology Labs, PC (''NAAG"). My
duties relative to the Lubbock County Medical Examiner' s office have been in connection with
my employment duties with NAAG.
3. Under the terms of the contract between NAAG and Lubbock County effective
August 5, 2018, I was to provide the services of Interim Chief Medical Examiner of Lubbock
County. I was appointed Acting Interim Chief Medical Examiner ofthe Lubbock County Medical
Examiner's office on August 10, 2018.
4. Thereafter, NAAG entered into another contract with Lubbock County to provide
comprehensive "full spectrum" death investigation services including executive oversight
functions typical of the Chief Medical Examiner and oversight administrative functions typical of
the Chief Administrative Officer and Department Head and Section Leader. Under that contract,
I was appointed Chief Medical Examiner of Lubbock County and continue to serve in that position.
I have been either Acting Interim Chief Medical Examiner or Chief Medical Examiner of Lubbock
County since August 10, 2018. I attach a copy of the job description for Medical Examiner that
was provided to me by Lubbock County as Exhibit 1. I also attach a copy of my Appointment and
Oath of Office for my position as Interim Medical Examiner and Medical Examiners as Exhibit 2.
5. On September 15, 2018, I was notified of a report of a death by a senior forensic
technician at the Lubbock County Medical Examiner's office, James Kason McGinnis, an
employee of Lubbock County. The Medical Examiner's office had been contacted about the death
of Elaina Castilleja by the house supervisor at Covenant Women's & Children's Hospital in
Lubbock. McGinnis was an employee of Lubbock County. According to the information
provided, the decedent was a 10-year old girl who had incurred a skull fracture at an early age and
was removed from the care of the decedent's mother. The decedent's grandmother, Rebecca Ortiz,
AFFIDAVIT OF SAM WILLIAM ANDREWS, M . D. - PAGE 2

l4737I v l
was granted care ofthe decedent. A brief medical history of the child was provided by the hospital
house supervisor. The history indicated that the child was pronounced dead less than 24 hours
after admission to the hospital. A representative of the Lubbock County Medical Examine r's
office spoke with the grandmother on September 15, 2018, and she advised that the decedent was
believed to have been shaken at an early age, possibly around or before the age of one and was
diagnosed with a skull fracture at that time. The grandmother advised that "the incident was not
proven," but that the decedent was blind, had scoliosis with the possibility that it was because of
the incident, which occurred in 2008. In my role as Lubbock County Medical Examiner, I
determined that under the circumstances, an autopsy was necessary.
6. I was not in Lubbock and was not available to perform the autopsy. Prior to the
time of the NAAG contract with Lubbock County, Dr. Stephen Pustilnik, a pathologist, had
performed autopsies for the Lubbock County Medical Examiner's office as an independent
contractor. Representatives of Lubbock County had advised me they had concerns about the
quality ofthe autopsy work performed by Dr. Pustilnik, and we were told that it was the preference
of Lubbock County and the District Attorney's office that he not perform autopsies on criminally
suspicious deaths, and child deaths. Dr. Matshes and I discussed the situation and concluded that
we should ask Dr. Pustilnik to perform the autopsy, as I would not be available to do so personally
until September 24, 2018. Therefore, a support plan was devised that included me providing Dr.
Pustilnik with written directions and suggestions for autopsy performance. Furthermore, NAAG
provided direct, in-person technical support for Dr. Pustilnik by way ofNAAG Forensic Autopsy
Technician, Lisa Hang, who was flown to Lubbock from San Diego. The directions to Dr.
Pustilnik from me are Exhibit 3 to this affidavit. Exhibit 3 has been redacted to protect the
confidentiality of another case unrelated to the Castilleja autopsy.
AfFfDA VIT OF SAM WILLIAM ANDREWS, M.D. - PAGE 3

147371Vl
7. I never had any relationship with Rebecca Villarreal Ortiz and have had no
communication with her. My only connection related to the autopsy of Elaina Castilleja was in
connection with my position as Acting Interim Lubbock County Medical Examiner.
8. I am familiar with the standards followed by medical examiners in Texas and
various other states. The removal and preservation of organs during an autopsy is often necessary
for the correct determination of both the cause and manner of death. I attach hereto as Exhibit 4
an article titled “National Association of Medical Examiners Position Paper: Recommendations
for Post-mortem Assessment of Suspected Head Trauma in Infants and Young Children.” This
article appeared in Volume IV of the publication Academic Forensic Pathology: The Official
Publication of the National Association of Medical Examiners beginning at Page 206. It was
published in 2014. This publication is considered a reliable authority by those practicing in the
specialty of forensic pathology. The allegations of Ms. Ortiz that the removal of certain organs
was unnecessary are incorrect. The organs that were removed at autopsy were necessary to either
accurately establish whether the death was the result of a traumatic brain injury or to rule out a
natural disease process as the cause of death. None of the organs or tissue removed at autopsy
were used for research or any purpose other than an accurate determination of the cause and
manner of death.
9. My only involvement with respect to the Castilleja autopsy was my determination
that an autopsy was necessary and my consultation with Dr. Matshes about providing instructions
to Dr. Pustilnik because of the concerns about Dr. Pustilnik’s ability that were communicated to
me by representatives of Lubbock County.
10. All of my actions with respect to the Castilleja autopsy were made on my own
professional judgment, were in good faith, and in the belief that they were appropriate in
AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D. – PAGE 4 147371V1

connection with the proper operation of the Lubbock County Medical Examiner's office in my
role as Interim Lubbock Medical Examiner.
FURTHER AFFIANT SAYETH NOT.
' SAM WILLIAM ANDREWS, M.D.
SWORN TO AND SUBSCRIBED TO before me by SAM WILLIAM ANDREWS, M.D.,

on this the 6
day of the month ofApril; 2019.
,/11,,4/
,,,,,,,,,,, GLENDA J KEENEY

~\~~:.~vt~~ .
f f~{".'1 Notary Public, State of Texas
~v_>.••• ~ ,:;p.-:
1-:.,~t~::~$,$' Comm. Expires 02-22-2023
Notary ID 131904616
AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D. - PAGE 5 J4737lvl

EX HIB IT 1
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 2
--- -- -
STATEMENT OF ELECTED/APPOINTED OFFICER
(P11rs11n11t to Tex. Co11st. art. XVI, §1(/J), n111e11ded 2001)
1, 6a.m Av-d. v-ew.5 , do solemnly swear (or

affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or
promised to contribute any money or thing of value, or promised any public office or
employment for the giving or withholding of a vote at the election at which I was elected or
as a reward to secure my appointment or confirmation, whichever the case may be, so help
me God.
UNDER PENALTIES OF PERJURY, I DECLARE THAT I HA VE READ THE FOREGOING STATEMENT

AND THAT THE FACTS STATED THEREIN ARE TRUE.
~4{ ~ - k , / 9,,-,, _ __ 8_- _[ O

A,.,JJ-~ _ ·- _2-
_ tJ_ f?i>
_ ,
Officer's Signature Date
Lubbock f!.ounbj 1vi ./-e.v-·,lt\_ Me.d<ra.J fuc,.~rntr

Position to Which Elected/Appointed City and/or County
40
In the name and by the authority of
The State of Texas
OATH OF OFFICE
I, So....tll AV\,.dre..u.JS , do solemnly swear

(or affirm), that I will faithfully execute the duties of the office of
owrcG: v F bu&b>c-l-- C r,11y,•,iT'( ·TuJEf ;m Md.._,c,4/ OJ:tle-~ f the L C,»1e
State of Texas, and will to the best of my ability preserve, protect, and defend the
Constitution and laws of the United States and of this State, so help me God.
Affiant
SWORN TO and subscribed before me by affiant on this ./cJ +t..., day of

_,~""----='-- ---=-- - - - ' c:J-~ I ~ .
5/J ' . ~ ½3-J

~ n Administering Oath
f ,µo)C} br112-,;+n-rn
Printed Name
Tit~ d
38
STATEMENT OF ELECTED/APPOINTED OFFICER
(Pursuant lo Tex. Const. art. XVI, §l(b), amended 2001)
I, Sam Andrews do solemnly swear (or

affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or
promised to contribute any money or thing of value, or promised any public office or
employment for the giving or withholding of a vote at the election at which I was elected or
as a reward to secure my appointment or confirmation, whichever the case may be, so help
me God.
UNDER PENALTIES OF PERJURY, I DECLARE THAT I .HA VE READ THE FOREGOING STATEMENT
AND THAT THE FACTS STATED THEREIN ARE TRUE.
/2 2.l-2e,l)'
Officer's Signature Date
Lubbock County Medical Examiner Lubbock County
Position to Which Elected/Appointed City and/or County
40
In the name and by the authority of
The State of Texas
OATH OF OFFICE
I, Sam Andrews do solemnly swear

(or affirm), that I will faithfully execute the duties of the office of
Lubbock County Medical Examiner of the
State of Texas, and will to the best of my ability preserve, protect, and defend the
Constitution and laws of the United States and of this State, so help me God.
Affiant
st
S ~ TO and subscribed before me by affiant on this ,;)_j day of
Ii~~ -~/)/%'.
~15~~
SignreofPerson Administering Oath
Printed Name
38
EX H IB IT 3

NAAG Pathology Labs

A Professional Medical Corporation
19 September 2018
TO: Dr. Stephen Pustilnik

Forensic Pathologist
FR: Dr. Sam Andrews

Forensic Pathologist & Chief Medical Examiner
Dear Dr. Pustilnik,
RE: Autopsy directions
I hope that you are well. Thank you for your service to the people of Lubbock
County.
Over the course of the next couple of days, you are going to do several
autopsies. We have particular administrative interest in two of those cases:
1. 2018-0466 (Elaina Castilleja)

2.
The purpose of this letter is to outline a few basic expectations we have, given
the high profile nature of the cases.

URL www.naagpathology.com • Email consults@naagpatho logy.com
Phone 800-985-5346 • Fax 858-216-2233
CORPORATE 6540 Lusk Blvd., Suite C262 , San Diego, Californ ia, 92121
LABORATORY 11 I 07 Rose lle Street, Suites 226-228, San Diego, Cal ifornia, 92121
2018-0466
We understand this case to be a possible delayed abusive head trauma death.

Based on the available history, we are unaware of any "acute" injuries. In
1. Preserve the dura mater and brain in 20% formalin, suspended by a string
under the basilar artery
formalin
5. Remove and preserve (in 20% formalin) the remaining portions of the
thoracolumbar spinal cord
6. Remove, flush , hang and preserve the heart in 10% formalin
7. Remove, perfuse (through the bronchial tree) and preserve each lung
8. Liberally retain tissues in your stock jar (do not prepare any histology
cassettes at this time; this case will be "cut in" at our labs in San Diego)
If you find any acute injuries, you will likely need to do full body soft tissue
dissections (chest and abdomen, back, extremities).
-We understand this to be a case of "fall" vs. "collapse".
Pa1e2of3
1.
We have flown our Chief Forensic Pathology Technician Ms. Lisa Hang to
Lubbock to provide you with assistance, as required . Lisa is there to help you,
and to represent the Lab, since she will be assisting the NP team in processing
the specimens you retain.
If you have any questions or concerns, please do not hesitate to reach out and
contact me. You should also feel free to speak with Kristii Johnson or Lisa Hang
directly.
With kind regards ,
NAAG PATHOLOGY LABS P.C.

per
Sam Andrews BSc MD FRCPC FCAP D-ABP

Lubbock County Chief Medical Examiner
CC: Lisa Hang

Kristii Johnson
Pa1e3 of3
Exhibit 4
NAME POSITION PAPER
National Association of Medical Examiners Position Paper:

Recommendations for the Postmortem Assessment of
Suspected Head Trauma in Infants and Young Children
James R. Gill MD, Thomas Andrew MD, M.G.F. Gilliland MD, Jennifer Love PhD,
Evan Matshes MD, R. Ross Reichard MD
ABSTRACT: The National Association of Medical Examiners convened a panel to create a

position paper for recommendations for the investigation of infant deaths due to inflicted head
trauma. The correct certification of both the cause and manner of death is dependent upon
an evaluation of all available data including information derived from the investigation, scene,
postmortem examination, and ancillary studies. This paper provides recommendations for the
forensic pathologist on what constitutes the dataset to be produced during the postmortem
James R. Gill MD is the Chief examination of infants who have died of, or have apparently died of, inflicted head trauma.
Medical Examiner for the State of Specifically, this paper describes 1) procedures, 2) ancillary laboratory tests, and 3) forms
Connecticut. of documentation that are important in the investigation of these deaths. The evaluation and
Author Affiliations: New Hampshire documentation of such infant deaths involves the production of a detail oriented and thor-
Office of Chief Medical Examiner, oughly documented examination that is independently reviewable to support the multitude of
Concord, NH (TA), Brody School of inquiries that may follow from the public and the criminal justice system.
Medicine at East Carolina University,
Department of Pathology and
Laboratory Medicine, Greenville, KEYWORDS: Forensic pathology, Head trauma, Infant, Homicide
NC (MG), Harris County Institute
of Forensic Sciences, Houston,
TX (JL), New Mexico Office of the
Medical Investigator, Albuquerque, INTRODUCTION prosecution, dissolution of families, and putting
NM (EM), Mayo Clinic - Anatomical other children at risk. As such, NAME convened
Pathology, Rochester, MN (RR). The National Association of Medical Examiners a panel to generate recommendations for the in-
Contact Dr. Gill at: (NAME) was founded with “the dual purposes vestigation of these deaths. Complementary to a
jgill@ocme.org. of fostering the professional growth of physician thorough death investigation, the goal of the au-
Acad Forensic Pathol death investigators and disseminating the profes- topsy is not only to aid in the determination of the
2013 4 (2): 206-213 sional and technical information vital to the con- cause and manner of death, but also to produce an
https://doi.org/10 23907/2014.032
tinuing improvement of the medical investigation independently reviewable dataset that allows the
of violent, suspicious and unusual deaths” (1). original forensic pathologist (and others who fol-
© 2014 One method of fulfilling this mission is the pub- low) the best opportunity to review primary data
National Association of Medical Examiners lication of autopsy standards and position papers and potentially answer unanticipated future ques-
(2-5). NAME has previously published position tions. As Moritz stated, “If a negative or positive
papers on recommendations for the investigation postmortem finding is so important that it may
and certification of cocaine, heat-related, and make the difference between the freedom or im-
opioid deaths (3-5). prisonment, or the life and death of someone, ev-
ery attempt should be made to protect, preserve,
Fatalities due to traumatic brain injury (TBI) and record it for others to see and evaluate” (6).
among infants/young children, particularly ho-
micides, are among the most challenging in- Autopsy protocols have been developed for car-
vestigations for a forensic pathologist for many diac, metabolic, and sudden infant deaths (7-13)
reasons: any death in this age group may elicit to ensure consistency and comprehensive exami-
passionate responses even by trained profession- nations that look for a broad range of diseases.
als, the decedent may have been seen recently by Similarly, this paper’s aim is to describe an
a physician, a caregiver may be the perpetrator, autopsy protocol to facilitate a thorough, inde-
and the wrong diagnosis may result in a wrongful pendently reviewable investigation of pediatric
Table 1: Specific Autopsy Reporting and Procedures for Suspected Pediatric Head Injury Deaths
1. Photography including overall full body external color images with close-ups of specific findings and pertinent
negative findings.
2. A radiological skeletal survey with, as indicated, an internal examination of the musculoskeletal system to document
and/or exclude soft tissue or bone injury.

3. Description (color, size, location) and photographic documentation of intracranial hemorrhage (epidural [EDH]),
subdural [SDH], or subarachnoid [SAH]).
4. Examination of the formalin-fixed brain, cranial dura, and spinal cord and the ability to consult with a board-certified
neuropathologist.
5. Description of the eyes and optic nerves both grossly (with photographic documentation) and microscopically:
A. Optic nerve sheath: describe the extent and location (subdural, subarachnoid, intradural, extraocular, orbital
fat) of any hemorrhage.
B. Retina: describe any hemorrhage/injury including the layers involved (preretinal, retinal, subretinal), extent
(few, numerous, extensive), and distribution (posterior pole, equatorial, and peripherally, including whether
they abut the ora serrata).
C. A neuropathologist or ophthalmic pathologist consultation may be useful.
6. Describe injury and hemorrhage of the anterior and posterior neck.
7. Medical record review as available for correlation with the history and autopsy findings.
head injury deaths. NAME has already published importance of the detection and documentation
general autopsy standards that are applicable to of other disease processes and injuries involving
infants/children with apparent head trauma. This the torso and extremities is vital.
traumatic brain injury protocol is not meant to
replace those preexisting standards but to pro- DISCUSSION
vide detailed techniques, procedures, and other
recommendations for these investigations. Each Initial Autopsy Investigation
case is unique, and this protocol is not meant as a
substitute for professional judgment. The follow- The initial autopsy investigation includes digital
ing protocol, however, may be considered prac- photography and full body radiologic imaging
tice recommendations for these investigations performed prior to the internal examination.
endorsed by the NAME Board of Directors.
Digital Photography
Infants die suddenly and unexpectedly for a
myriad of reasons that span the spectrum from Integral to the development of a dataset that fa-
natural disease to inflicted injury. Infant/child- cilitates independent case review is high qual-
hood deaths due to TBI may have no history or ity, color photography. Unlike film photography,
external evidence of trauma; therefore, unexpect- digital imaging allows the prosector to know
ed and unexplained infant/childhood deaths are immediately if the image is properly captured
thoroughly evaluated at the outset as they may (14). Therefore, digital photography is the pre-
be homicides or due to rare natural disease. As ferred method for photographic documentation
such, these deaths undergo a uniformly thorough for these investigations. A core list of recom-
investigation and documentation through the ini- mended photographs is included in Table 2. In
tial stages of the evaluation, documentation, and general, all external surfaces of the body are pho-
evisceration. As pathologic findings emerge dur- tographed with close-up photographs of specific
ing the course of the examination and prosection, findings. Important internal images of injury and
the necessity and/or utility of ancillary dissec- pertinent negative findings include subscalpular
tions and studies will become apparent, and their views, subdural/epidural/subarachnoid hemor-
selection can be tailored by the forensic patholo- rhage, skull, brain (external and representative
gist. cross sections), and eyes, including the optic
nerves, and subcutaneous and skeletal injury.
The subsequent protocol describes a progression
of relevant examinations and processes for the Plain Film Radiography
thorough description and documentation of per-
tinent findings (Table 1). Although the focus of As skeletal injury may not be detected during a
the paper is on the central nervous system, the standard autopsy, healed and healing fractures
Table 2: Core Photographs to be Obtained in Cases with Head Trauma or Suspected Head Trauma*
1. Identification photo (face)
NAME POSITION PAPER
2. Both sides of the face
3. Extended anterior neck
4. Chest, abdomen, and back
5. Genitals and perianal region
6. Arms and legs including wrists, ankles, and hands
7. Layered soft tissue plane dissections (chest and abdomen, scalp)
8. Exposed pericranial surfaces following usual reflection of the scalp
9. Exposed ectocranial surfaces following pericranial membrane removal
10. Epidural, subdural, and subarachnoid hemorrhages
11. Exterior surfaces of the brain and spinal cord
12. Representative cross sections of the brain and spinal cord
13. The cervical spine and/or cervical nerve roots, as indicated
14. External and internal surfaces of the eyes
*A case number should be visible in each photograph and a reference scale included in at least one photograph of major
wounds and injury to allow for 1:1 reproduction (15).
may be missed (16). Therefore, full body radio-

graphs, which may aid in the detection of these Table 3: Pediatric Radiologic Skeletal Survey
lesions, are indicated when investigating a death 1. Three views of the skull
with potential inflicted trauma. A radiologic skel- a. Anterior-Posterior (AP)
etal survey is necessary for the evaluation of b. Towne’s (30% angle view of the mandibular
condyles and the midfacial skeleton)
unexplained infant/childhood deaths that come c. Lateral
to the attention of the medical examiner/coroner
(ME/C) (16, 17). A pediatric skeletal survey pro- 2. Two views of the cervical spine
a. AP
tocol is provided in Table 3 (if board-certified ra- b. Lateral
diologists are not available to define the pediatric
skeletal survey). Forensic pathologists are trained 3. Two views of the trunk / torso
a. AP
to examine plain film radiographs. As some pe- b. Lateral
diatric fractures may be subtle and disease may
simulate fractures, consultation with a pediatric 4. Two views of the ribs
radiologist may be useful in some instances. a. LPO (Left posterior oblique)
b. RPO (Right posterior oblique)
Advanced Radiologic Techniques 5. Four views of the upper extremities

a. Left upper extremity
b. Right upper extremity
Postmortem computed tomography (CT) and c. Left hand
magnetic resonance imaging (MRI) offer the d. Right hand
ability to provide unobstructed and three-di-
6. Four views of the lower extremities
mensional visualization of body lesions. Some a. Left lower extremity
offices have in-house scanners or have arranged b. Right lower extremity
access with local hospitals. While these proce- c. Left foot
d. Right foot
dures likely provide superior results for certain
injuries over plain films, at the current time, the
strengths and weaknesses of each modality have MRI remains at the discretion of the forensic pa-
yet to be fully defined in the forensic autopsy thologist and subject to the availability of facili-
setting. In addition, plain film radiographs con- ties and funding for such modalities (18). While
tinue to be the choice for the clinical evaluation postmortem CT/MRI currently may be a useful
for most fractures in children. The use of CT/ adjunct, the external and internal autopsy exami-
nation remains the best method for the postmor- Skull: documentation of the location, dimension,
tem diagnosis of injury (19). Since some infants type (e.g., linear, depressed, comminuted, dia-
or children who ultimately die from injuries may static) of fracture(s) is achieved through the nar-
have a survival period in the hospital, antemor- rative report, digital photography, and radiologic
tem advanced imaging often has been obtained. images; some forensic pathologists may choose
Admission imaging and other hospital CT and to supplement their reports with diagrams. Skull
MR scans may provide valuable information and fractures may be subtle in the young pediatric

should be sought and reviewed. population and therefore removal of the pericra-
nial membranous soft tissues along with the cra-
External and Internal Examination nial dura allow them to be better identified and
examined in detail. Microscopic sections help
Depending on the age of the infant/young child, confirm and document gross findings and may be
certain body measurements (e.g., head circum- useful for assessment of the stage of healing.
ference) in addition to length and weight may
be useful. A search for trace evidence and sexual Hemorrhage: the type [epidural (EDH), subdural
assault evidence collection, if indicated, is done (SDH), or subarachnoid (SAH)], location, size,
prior to washing the body to better visualize inju- color, and adherence are documented through ap-
ries. An external and internal examination is per- propriate use of narrative description and digital
formed per the NAME Forensic Autopsy Perfor- photography. The size of SDH and EDH, for ex-
mance Standards which also are followed when ample, may be documented by volume, weight,
describing an injury (e.g., type, location size, or three-dimensional measurements. The effects
shape, pattern) (15). of the hemorrhage on the brain (e.g., compres-
sion, herniation, shift) are noted in the autopsy
Specialized Autopsy Investigations When report. Microscopic sections help confirm and
Suspicious Findings are Encountered document gross findings and may be useful for
assessment of the stage of healing (21, 22).
As the autopsy progresses, findings suspicious
for inflicted traumatic brain injury (iTBI) may Brain: for optimal results, the brain and cranial
be detected. If so, the following specific exami- dura should be fixed in formalin (usually for a
nations and documentation of particular findings minimum of 10-14 days). Forensic pathologists
are recommended. These are described by body are trained to diagnose and describe traumatic
region. brain injuries. As some neuropathologic diseas-
es may be subtle or mimic trauma, consultation
Head with a board-certified neuropathologist may be
warranted. Express mail delivery services, gross
Scalp/subscalpular: the number, location, and photography, tissue retention, and microscopic
size of scalpular and subscalpular hemorrhages slides allow for consultation even after the initial
are best documented through a combination of brain dissection. Pertinent positive and negative
the photograph(s) and narrative description(s). gross and microscopic findings include: hypox-
Correlation should be made between sites of ia-ischemia, contusion, contusion hematomas,
hemorrhage and medical intervention (i.e., prior diffuse axonal injury, presence/absence of brain
surgery). Other discrete areas of hemorrhage swelling and herniation (type and extent), intra-
may occur, such as along cranial sutures from di- cerebral hemorrhage (location and extent), vas-
astasis due to marked brain swelling. The docu- cular malformations, congenital anomalies, and
mentation should convey the information neces- other focal lesions. Examination of the cerebral
sary for users of the autopsy report to determine dura includes description of any pathology (e.g.,
when hemorrhage is either due to a secondary subdural blood, surgical defects) and evaluation
process or a direct result of trauma. If there is (opening) of the sinuses (e.g., thrombosis). Mi-
concern for facial injury not apparent externally, croscopic examination of the dural sinus may
a formal face dissection is possible (20). Detec- help distinguish thrombus from postmortem con-
tion of otherwise unknown or underappreciated gealed blood.
impact sites of the face may change the context
of the infant death from one of non-impact to Microscopic sections for suspected inflicted trau-
one with demonstrable impact. Intraoral exami- matic brain injury include evaluations of pathol-
nations may reveal frenulum, inner cheek, and ogy identified grossly and sampling that allows
tongue injuries. Shaving of hair allows for better assessment of possible natural disease processes,
evaluation and documentation of scalp injuries. hypoxic-ischemic brain injury, and traumatic
Careful examination of the ears includes looking axonal injury. Hypoxic-ischemic brain injury in
inside and behind the ears. infants/children has a characteristic distribution
of injury, and those regions should be included
Table 4: Histologic Sampling for Hypoxic-Ischemic
in the evaluation in addition to regions typically
Brain Injury
involved in adults. A list of locations for his-
NAME POSITION PAPER
tologic sampling is included in Table 4. Diag- 1. Border zone (i.e., frontoparietal region)
nosis of diffuse traumatic axonal injury (dTAI)
requires traumatic axonal injury in multiple lo- 2. Deep gray structures (basal ganglia/thalamus)
cations including the corpus callosum, cerebral 3. Hippocampi (including subiculum)
hemispheric white matter, and brainstem. Infants
have been reported to have traumatic axonal in- 4. Midbrain (inferior colliculus)
jury isolated within the brainstem (23). Histo-
logic sampling for dTAI in infants and children 5. Pons
includes routine hematoxylin and eosin (H&E) 6. Cerebellum
sections. If available, examination with amyloid
precursor protein (APP) immunostain may be
useful in select instances. A list of locations for Table 5: Histologic Sampling for Diffuse Traumatic
histologic sampling for dTAI is included in Ta- Axonal Injury (dTAI)
ble 5. Limited sampling has been demonstrated 1. Posterior corpus callosum (near splenium)
to preclude the diagnosis of dTAI; therefore, if
traumatic axonal injury is present but insufficient 2. Parasagittal white matter
to diagnose dTAI, additional (bilateral) histolog-
3. Posterior limb of the internal capsule
ic sections should be evaluated. Assessment of
APP immunostaining patterns due to trauma and 4. Midbrain, pons, and medulla
a variety of other processes has previously been
reported (23-25). Microscopic evaluation for
natural disease processes includes examination Ocular examination: monocular indirect ophthal-
of neocortex, deep gray structures, brainstem, moscopy is a noninvasive and nondestructive
and cerebellum. Histologic sampling and use of technique to view the retina prior to autopsy and
special stains, however, may vary depending on the equipment is less expensive than that needed
the clinical history and gross pathology identified for ophthalmic endoscopy (27), however, it does
at autopsy. Marked non-perfused brain changes require additional equipment and training. A
(so-called “respirator brains”), for example, may gross dissection and microscopic examination of
dramatically affect the gross evaluation and hin- the eyes also is possible at autopsy. The interpre-
der histologic sampling and diagnosis. tation of retinal hemorrhages is beyond the scope
of this paper. Forensic pathologists, however,
Histologic evaluation of the cerebral dura is use- have a duty not only to diagnose and interpret,
ful to assess gross pathology and evaluate for but also to document and preserve findings. As
more subtle processes. Evaluation for intracel- an autopsy is often the best and sometimes only
lular iron deposition may facilitate assessment of chance to diagnose, confirm, or exclude certain
the stage of healing in SDH and EDH. The in- findings, pathologists, as the independent docu-
terface between sub/epidural blood and ongoing menters of facts, are best to err on the side of doc-
tissue healing is the best site for histologic evalu- umentation. A recent prospective clinical study
ation. Although there are criteria for the stages indicated that the assessment of retinal hemor-
of healing of a SDH, many variables affect this rhages may be useful as a predictor of iTBI (28).
process (e.g., size of hematoma, source of blood, Pending the publication of additional research, at
age of the individual), resulting in a somewhat a minimum, the ocular examination serves as a
predictable but potentially variable course (22). quality assurance measure that may confirm or
Retention of representative cortical regions, deep refute clinically diagnosed retinal hemorrhages.
gray structures, brainstem, and cerebellum may Therefore, the removal and examination of the
prove useful. In addition, samples from contra- eyes in instances of inflicted or suspected-inflict-
lateral white matter regions (e.g., parasagittal ed traumatic brain injury is recommended.
white, posterior limb of internal capsule) may be
necessary to diagnose or exclude dTAI. A technique for removal and examination of the
eyes has previously been published (29). After
Spinal cord: the spinal cord is examined at all removal, the eyes and periocular soft tissues are
three levels (cervical, thoracic, and lumbar). fixed in formalin prior to microscopic examina-
Some have recommended removal of the brain tion. For optic nerve sheath hemorrhage, the lo-
with the spinal cord still attached (26), but it is cation (subdural, subarachnoid, intradural, extra-
unclear if this technically difficult dissection ocular, orbital fat) is documented in the autopsy
yields any diagnostic value. report. For retinal hemorrhages, the involved lay-
ers (preretinal, retinal, subretinal), extent (few, description of the stage of healing (i.e., bone cal-
numerous, extensive), and distribution (poste- lus formation) is included in the autopsy report.
rior pole, equatorial, and peripherally, including Forensic pathologists are trained to examine
whether they abut the ora serrata) are described. plain film radiographs and bones. As some os-
Special stains, such as Prussian blue to identify seous findings may be unusual normal anatomic
hemosiderin, may be useful in some instances. variants, consulting with a board-certified foren-
Collection of vitreous will disturb the retina and sic anthropologist may be useful. Other useful

should be postponed until adequate examination techniques and examinations include: stripping
of the retina, the optic nerve, and brain is done the parietal pleural lining to better visualize rib
and the value of the vitreous analysis for the spe- fractures, resecting the spinal column with the
cific case is considered. Photography with appro- medial ribs for further evaluation for posterior
priate lighting can aid in the documentation of rib fractures, and histologic sections of cutane-
ocular findings. ous/subcutaneous injuries (Prussian blue can
identify hemosiderin).
Neck
Ancillary Studies
Infants and children who die of inflicted injuries
may have injuries of the anterior and posterior Depending upon the circumstances and autopsy
neck. In addition to the standard anterior neck findings, ancillary studies for infectious (e.g., vi-
dissection, a posterior neck dissection also may ral, bacterial cultures), hereditary, metabolic, or
reveal internal injury. Injuries of the neck have thrombophilic diseases may be indicated.
been proposed to explain potential mechanisms
of death and techniques have been described for Records
the examination of the anterior and posterior
neck intrinsic spine structures/nerve roots (30- Review of the medical records including ante-
37). If the prosector is concerned for intrinsic mortem CT/MRI reports should be done as they
structural spinal/nerve root injury, then these may provide relevant clinical information. Re-
structures may be evaluated by various methods. view of reports generated by other agencies such
One method is an en bloc dissection of the cervi- as child protective services and law enforcement
cal osseous and neural structures with formalin investigation findings also may guide the foren-
fixation (37). Another is an in situ method that re- sic pathologist’s investigation and therefore these
moves the spinal cord and attached ganglia with- should be requested.
out the surrounding bone and soft tissues (38). In
this technique, the laminae are cut and the spi- CONCLUSION
nous processes removed. The lateral aspects of
the neural arches are then removed by cutting the The investigative value of each of the described
articulating facets and pedicles of the vertebrae. studies is often unknown at the onset of the au-
The freed sections of bone are removed and the topsy. Many procedures performed during an au-
spinal cord is removed with the ganglia attached. topsy create irreversible changes to tissues and
thus proactive documentation is critical. Ulti-
Trunk and Upper and Lower Extremities mately, the forensic pathologist must use medical
judgment on how to conduct each autopsy exam-
The NAME autopsy performance standards in- ination but would be wise to heed the admonition
clude procedures and descriptions for trunk in- that “I would rather explain why I did an exami-
juries. A subcutaneous examination of the arms, nation than why I did not.” In these instances, it
legs, and back and buttocks may improve detec- may be stated that the examination was done in
tion of occult subcutaneous and deep hemor- accordance with recommendations endorsed by
rhage (39). the Board of Directors of the National Associa-
tion of Medical Examiners.
Of particular importance in pediatric iTBI are
the identification and description of rib and other DISCLOSURES
skeletal fractures. In addition to radiographs, an
in situ skeletal examination may be useful to The opinions and conclusions of this paper have
further document or exclude injury. An in situ been reviewed and approved by the National As-
examination may include exposure of the shaft sociation of Medical Examiners Board of Direc-
and epiphyseal cartilages of the ribs, clavicles, tors and as such are endorsed by NAME. These
long bones, and scapulae (40). Traumatized or opinions and positions are based on a consensus
abnormal structures may be removed for addi- of the current literature, knowledge, and prevail-
tional analysis including gross (i.e., dry bone) or ing theories on this topic. As Scientific knowl-
histologic examination (41-43). When possible, a edge and experience grow, NAME reserves the
right to revise or update these opinions. The 12) Bove KE. Practice guidelines for autopsy pathology:
process by which NAME position papers are the perinatal and pediatric autopsy. Autopsy Commit-
tee of the College of American Pathologists. Arch
initiated, written, reviewed, and approved is Pathol Lab Med. 1997 Apr; 121(4):368-76.
NAME POSITION PAPER
publically available at https://netforum.avectra. 13) Ackerman MJ, Tester DJ, Driscoll DJ. Molecular
com/temp/ClientImages/NAME/2c26a527-f992- autopsy of sudden unexplained death in the young. Am
4f70-9d03-7941bff5319d.pdf. All scientific posi- J Forensic Med Pathol. 2001 Jun; 22(2):105-11.
tion papers endorsed by the National Association 14) Oliver WR. Considerations for gross autopsy photogra-
of Medical Examiners automatically expire five phy. Acad Forensic Pathol. 2011 Jul; 1(1):52-81.
years after publication unless reaffirmed, revised, 15) Peterson GF, Clark SC. Forensic autopsy performance
or retired at or before that time. This work is a standards. Marceline (MO): National Association of
product of NAME and as such, was not subjected Medical Examiners; 2006. 27 p.
to Academic Forensic Pathology Journal edito- 16) McGraw EP, Pless JE, Pennington DJ, White SJ. Post-
mortem radiography after unexpected death in neonates,
rial review. infants, and children: should imaging be routine? AJR
Am J Roentgenol. 2002 Jun; 178(6):1517-21.
The editors and publication staff do not report 17) Adamsbaum C, Mejean N, Merzoug V, Rey-Salmon
any relevant conflicts of interest. C. How to explore and report children with suspected
non-accidental trauma. Pediatr Radiol. 2010 Jun;
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7) Basso C, Burke M, Fornes P, et al. Guidelines for
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autopsy investigation of sudden cardiac death. Virchows
Technical communication: rationale and technique for
Arch. 2008 Jan; 452(1):11-8.
examination of nervous system in suspected infant
8) Lee AH, Gallagher PJ. Post-mortem examination after victims of abuse. Am J Forensic Med Pathol. 2004 Mar;
cardiac surgery. Histopathology. 1998 Nov; 33(5):399- 25(1):29-32.
405.
27) Lantz PE, Adams GG. Postmortem monocular indirect
9) Rinaldo P, Yoon HR, Yu C, et al. Sudden and unexpected ophthalmoscopy. J Forensic Sci. 2005 Nov; 50(6) 1450-2.
neonatal death: a protocol for the postmortem diagnosis
28) Minns RA, Jones PA, Tandon A, et al. Prediction of
of fatty acid oxidation disorders. Semin Perinatol. 1999
inflicted brain injury in infants and children using reti-
Apr; 23(2):204-10.
nal imaging. Pediatrics. 2012 Nov; 130(5):e1227-34.
10) Byard RW, Krous H. Sudden infant death syndrome
29) Gilliland MG, Levin AV, Enzenauer RW, et al. Guide-
problems, progress, and possibilities. London: Arnold;
lines for postmortem protocol for ocular investigation of
c2001. Appendix I, International standardized autopsy
sudden unexplained infant death and suspected physical
protocol for sudden unexpected infant death; p. 319-33.
child abuse. Am J Forensic Med Pathol. 2007 Dec;
11) Sadler DW. The value of a thorough protocol in the 28(4):323-9.
investigation of sudden infant deaths. J Clin Pathol.
30) Matshes EW, Evans RM, Pinckard JK, et al. Shaken
1998 Sep; 51(9):689-94.
infants die of neck trauma, not brain trauma. Acad
Forensic Pathol. 2011 Jul; 1(1):82-91.

31) Geddes JF, Vowles GH, Hackshaw AK, et al. Neuropa- 38) Peterson JEG, Love JC, Wolf DA, et al. Proceedings
thology of inflicted head injury in children. II. of the American Academy of Forensic Sciences 66th
Microscopic brain injury in infants. Brain. 2001 Jul; annual scientific meeting. Colorado Springs: American
124(Pt 7):1299-306. Academy of Forensic Sciences; c2014. G51, Ganglia
32) Hadley MN, Sonntag VK, Rekate HL, Murphy A. The and nerve root hemorrhage in cases of pediatric blunt
infant whiplash-shake injury syndrome: a clinical and head injury; p. 346.
pathological study. Neurosurgery. 1989 Apr; 24(4): 39) Spitz W, Spitz D. Investigation of deaths in childhood.

536-40. In: Spitz W, Spitz D, editors. Spitz and Fisher’s medico-
33) Shannon P, Smith CR, Deck J, et al. Axonal injury and legal investigation of death. 4th ed. Springfield (IL):
the neuropathology of shaken baby syndrome. Acta Charles C Thomas; 2006. p. 1325.
Neuropathol. 1998 Jun; 95(6):625-31. 40) Love JC, Sanchez LA. Recognition of skeletal fractures
34) Geddes JF, Hackshaw AK, Vowles GH, et al. Neuro- in infants: an autopsy technique. J Forensic Sci. 2009
pathology of inflicted head injury in children. I. Patterns Nov; 54(6):1443-6.
of brain damage. Brain. 2001 Jul; 124(Pt 7):1290-8. 41) Love JC, Derrick SM, Wiersema JW. Skeletal atlas of
35) Adams VI. Autopsy technique for neck examination. I. child abuse. New York: Humana Press; 2011. 136 p.
Anterior and lateral compartments and tongue. Pathol 42) Kleinman PK, Marks SC, Blackbourne B. The metaphy-
Annu. 1990; 25 Pt 2:331-49. seal lesion in abused infants: a radiologic-histopatho-
36) Adams VI. Autopsy technique for neck examination. II. logic study. AJR Am J Roentgenol. 1986 May;
Vertebral column and posterior compartment. Pathol 146(5):895-905.
Annu. 1991; 26 Pt 1:211-26. 43) Lonergan GJ, Baker AM, Morey MK, Boos SC. From
37) Matshes EW, Joseph J. Pathologic evaluation of the the archives of the AFIP. Child abuse: radiologic-patho-
cervical spine following surgical and chiropractic inter- logic correlation. Radiographics. 2003 Jul-Aug;
ventions. J Forensic Sci. 2012 Jan; 57(1):113-9. 23(4):811-45.

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."

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."

Further affiant sayeth not.
..-
1s-+
Sworn to and subscribed before me on this _ _ _ day of May 20 19.
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JO ANN GUTIERREZ CARDENAS
l~otary Pu bile, State of Taxes
Comm. Expires 04-07-2022
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Exhibit D

Filed 3/4/2019 3:46 PM
Barbara Sucsy
District Clerk
2019534421 ag
CAUSE NO. _ _ _ _ _ __
REBECCA VILLARREAL ORTIZ § IN THE DISTRICT COURT

§
§
§
§
V. §
§ _ _ _ JUDICIAL DISTRICT
EVAL-... MATSHES, MD, §
SAM ANDREWS, MD, §
NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND §
NAAG PATHOLOGY LABS, PC § LUBBOCK COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION FOR

MISHANDLING OF HUMAN REMAINS AND
INTERFERENCE WITH FINAL DISPOSITION RIGHTS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Rebecca Villarreal Ortiz, Plaintiff, and files this her
Original Petition for Mishandling of Human Remains and Interference with
Final Disposition Rights, complaining of Evan Matshes, MD, Sam Andrews,
JVID, National Autopsy Assay Group, LLC, and NAAG Pathology Labs, PC,
Defendants. For cause of action, Plaintiff would show this Court as follows:
A.
DISCOVERY CONTROL PLAN
l, Plaintiff intends to conduct discovery under a Level 2 discovery control
control plan and pleads that she seeks monetary relief of $100,000 or more.
Ortiz v. Matshes, et al. - Page 1 of 19

.Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
----~--==c==========2c==--===-------------------+
B.
PARTIES AND SERVICE
2. Plaintiff is Rebecca Villarreal Ortiz, an individual residing in Lubbock
County, Texas.
3. Defendant Evan Matshes, MD is an individual residing either in the
State of California or in the State of Texas and he may be served with process
at his regular place of work at 4434 S. Loop 289, Lubbock, Texas 79414, or at
6540 Lusk Blvd., Suite C262, San Diego, California 92121.
4. Defendant Sam Andrews, MD is an individual residing in the State of
Texas, and he may be served with process at 4434 S. Loop 289, Lubbock,
Texas 79414.
5. Defendant National Autopsy Assay Group, LLC (hereinafter "NAAG")
is a Texas limited liability company and may be served with process by
service on its registered agent for service, Capitol Corporate Services, Inc., at
206 E 9th Street, Suite 1300, Austin, Texas 78701.
6. Defendant NAAG Pathology Labs, PC (hereinafter "NAAG Labs"), is a
foreign entity registered with the Texas Secretary of State to conduct
business in the State of Texas and process may be served on its registered
agent for service, Capitol Corporate Services, Inc., at 206 E 9th Street, Suite
1300, Austin, Texas 78701.

Plaintiffs Original Petition for Mishandling of Human Remains and
------================'.:":'.:".'.==="'-------------
C.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction over this matter because
Plaintiff seeks monetary relief within the Court's jurisdictional limits.
Further, this suit is not brought against any governmental unit or political
subdivision of the state, i.e., Lubbock County or the Lubbock County Medical
Examiner's Office, or any employee thereof. Rather, it is brought against (a)
NAAG and NAAG Labs, private entities with independent contractor status,
and (b) Evan l\1atshes and Sam Andrews, neither of whom are connty
employees and both of whom are sued in their individual capacities.
8. This Court has personal jurisdiction over the following defendants for
the following reasons:
a. Evan Matshes - because he has regular, systematic presence in
this state and the Court has general personal jurisdiction over him.
Furthermore, the acts or omissions complained of herein were
committed by Evan Matshes within the geographic boundaries of this
state and, therefore, the Court has specific personal jurisdiction over
him.
b. Sam Andrews- because he is a resident of the State of Texas
and has regular, systematic presence in this state and the Court has
general personal jurisdiction over him. Furthermore, the acts or

_ _ _ _ __:I':n':t:'.e~rf=e=r='e=n=c=e~w~it':'h:=F:'i:=n::a::l~D=i=s=p=o=s=it::'i:"o:=ne'R~ige'h::t~s'-----------------·----+~
omissions complained of herein were committed by Sam Andrews
within the geographic boundaries of this state and, therefore, the Court
has specific personal jurisdiction over him.
c. NAAG - because it is a Texas Limited Liability Corporation.
Furthermore, the acts or omissions complained of herein were
committed by NAA.G within the geographic boundaries of this state
and, therefore, the Court has specific persbnal jurisdiction over it.
d. NAAG Labs - because it is a foreign entity that has registered
with the Texas Secretary of State to conduct business in the State of
Texas. This Court has general personal jurisdiction over NAAG Labs
because it engages regular, systematic business in this state and the
acts or omissions complained of herein were committed by NAAG Labs
within the geographic boundaries of this state.
D.
BACKGROUND FACTS
NAAG
9. NA.4_G Lahs and NAAG are independent contractors providing forensic
pathology services in Lubbock, Texas.

-----~--------·---··--------~·--·-----.. -----
10. Evan Matshes and Sam Andrews have an ownership interest in NAAG
Labs and NA.AG.
Ortiz v. 1.vlatshes, et al. - Page 4 of 19

______'.I~n~t':".e=r=fe'.:'r':'e'.:'n::c'.:e'.::~wi":th~F'::'i:':'n~a~!'::'D:':i':'.s=p=o=s=it:'i::o':n:::R:=ig~h::t:'s'....._________________ _
11. NAAG Labs provides laboratory testing and analysis and provides
:management and operational oversight of its employees, agents,
representatives, and contract laborers.
Elaina Castilleja
12. In approximately 2010, when Elaina was a young child, one of the
biological parents of Elaina Castilleja (hereinafter "Elaina") caused Elaina
traumatic brain injury (hereinafter TEI).
13. The rotational TBI caused by Anthony Castilleja or Valerie Villarreal,
the biological parents of Elaina, resulted in their prosecution and
punishment, in late 2010 or early 2011, in Sedgwick County, Kans_as.
11. Plaintiff is the adoptive parent of Elaina, an adoption order having
been entered on or about JVIarch 1, 2011.
15. Elaina suffered life-long, severe disabilities as a result of the TBI
caused to her in 2010.
16. Elaina was ten years of age in September 2018.
Elaina's last illness
17. On or about September 15, 2018, Elaina's health rapidly declined, and
she was admitted to the hospital.
18. On or about September 15, 2018, after pulmonary and infection
complications, Elaina suffered multiple respiratory arrests. After it was clear
Ortiz v. Matshes, et al. - Page S of 19

Plaintiff's Original Petition for Mishandling of Human Remains and
that Elaina was never going to recover from the acute, life-threatening
medical complications, and that the multitude of resuscitations were only
prolonging her suffering, the decision was made to permit Elaina to pass
away.
19. On or about September 15, 2018, Elaina passed away in the hospital.
Events following Elaina's passing
20. Elaina's remains were taken into the custody of NAAG, its agents,
employees, independent contractors, or representatives.
21. As is relevant here, a medical examiner is statutorily authorized, and
required, to hold inquests in cases of deaths from unknown or unnatural
causes to accurately determine the cause (and often manner) of death.
However, Defendants, had a duty to, but failed to exercise ordinary care to
ensure that the collection and retention of tissue was limited to those proper
purposes.
22. On or about September 19, 2019, on NAAG Labs letterhead, citing a
"particular administrative interest," Sam Andrews provided the following
instructions to Dr. Stephen Pustilnik, an independent contractor, for the

---================':":':::=====-------------
Z018.fl46&
We understand thfs case to be a possible delayed abusive head trauma death.

Based on the avaifabla history. we are unaware of any "acute• injuries. In
1. Preserve the dura mater and brain in 20% fonnalin. suspended by a string
under tha basilar artery

fonnalin


5. Remove and preserve (in 20% formalin) the remaining portions: of the
thoracofumbar spinal cord

e. Remove, flush, hang and preserve the heart In 10% fonnalin
7. Remove, perfuso (through the bronchial tree) and preserve each lung
8. Uberally retain tissues In your stock Jar (do not prepare any histology
cassettes at this time; this case will be ·cut in· at our labs in San Diego)
If you find eny acute Injuries, you wlU likely need to do full body sell tissue
dissections (chest and abdomen, back, extremitie~)-
23. Sam Andrews signed these instructions.
24. Upon information and belief, Evan Matshes assisted in preparing or
was otherwise responsible for these instructions.
25. Thee:ie instructions from Andrews and/a r M a t s h es were earned

. out.
26. Sam Andrews1 directions for the autopsy of Elaina were forensically
unjustified and excessive, considering (a) the history of h er 1nJury

. . and death
'
Ort!z ~- Matshes, et al . . Page 7 of 19

Plaintiffs Original Petition for Misha d .
_ _ _ __,I~n;!t'c"e~rc!'fe~r,!e~n~c~e~wgil!tghc!Fi~·~n~aglJD~i~·s~p~o~s~·t·~~¥~?~~l~mLg:o:f:H:u:m:a:n:::'.R:e~m:a~i~n~s~a~n~d~---
- lil 1gts
(b) the prior prosecution and conviction of Anthony Castilleja or Valerie
Villarreal, and (c) the intervening nine-year period between Elaina's TBI and
her death.
27. The removal, retention, and shipment to NAAG Labs' facility in San
Diego of the following tissue from Elaina's remains was not forensically
justified, was not solely to determine cause or manner of death, and went
well beyond the statutorily authorized "complete autopsy":
a. Entire brain and dura matter - Because the identification of
gliosis, axonal swelling Or distended nerve cells, etc. does not require
the entire brain and dura matter to be retained.
b. Cervical spinal column - Because identification of remote
pathologic lesions would not add to the proper certification of Elaina's
cause and manner of death.
c. Entire eyes and periocular structures - While Elaina's
retinas may have shown resolving remote hemorrhages, which would
be relevant to Elaina's TB!, this would not add insight into the cause
and manner of her death. Defendants caused Elaina's entire eyes and
p·eriocurar-·str--iictures to be removed, ~Which constifUt8cf excessive tissue
collection.

----=============~------------
d. Thoracolumbar spinal cord - Because nothing about Elaina's
TBI could be expected to be learned from the removal of her
thoracolumbar spinal cord. No TB! pathology would be present in that
structure.
e. Heart - Because nothing about Elaina's TEI could be expected to
be learned from the removal of her heart. No TB! pathology would be
present in that structure. Exemplary tissue for microscopic
examination would have been sufficient.
f. Lungs - Because nothing about Elaina's TB] could be expected
to be learned from the removal of her lungs. No TBI pathology would
be present in those structures. Exemplary tissue for microscopic
examination would have been sufficient.
28. Plaintiff did not consent to said actions.
29. A reasonably prudent forensic pathologist would not have taken the
same actions in the same or si_milar circumstances.
30. In cases of a known decedent, the collection and retention of tissue not
required for certification of the cause and manner of death is• not statutorily
authorized.
I
___...c!O'=r=t~iz~v.=M=a=ts=h'=e=s=,
Interference with=et==al.~·=P=a=g~e 9'f"o=f=1=9=='~'e-------------------J-·•,.
Final Disposition
2 Rights
-.
E.
COUNT 1- MISHANDLING OF REMAINS
(Brain and Dura Matter)
31. There is a special relationship between a decedent's next-of-kin and a
person who takes custody of the remains.
32. Defendants owed Plaintiff, as Elaina's next-of-kin, a duty to exercise
ordinary care in the handling of Elaina's remains.
33. With respect to Elaina's entire brain and dura matter, Defendants
breached that duty by:
a. Removing and retaining excessive tissue;
b. Failing to return to Elaina's body those portions of said tissue not
required for determining cause and manner of death; and
c. Failing to implement policies and procedures that would ensure
that only tissue required for identifying the cause and manner of death
were removed and retained.
34. Defendants' breach of said duty of care, proximately caused Plaintiff
lnJury.
same actions in the same or similar circumstances. The collection and
:retention of tissue not required for certification of the cause ancl manner of
death is not statutorily authorized.

----'=--~=================~------------
F.
COUNT 2 MISHANDLING OF REMAINS
(Cervical Spinal column)
38. With respect to Elaina's cervical spinal column, Defendants breached
that dut:y b:y:
lilJllry.
retention of tissue not required for certification of the cause and manner of
Ortiz v . .1.lfatshes, et al. - Page 11 of 19

Plaintiff's Original Petition for Mishandling of Human Remains and j
______I'en'!ct~e~ro"£~e!ccre'=n~'=ce~w"i~t"'h"F'=<•~·n"'a"'l"D~ise!p~o2s~i~ti~o~n~R~i;;g"'h~t"-s----------------~-
G.
COUNT 3 - MISHANDLING OF REMAINS
(Eyes and Periocular Structures)
42. Defendants owed Plaintiff, -as Elaina's next-of-kin, a duty to exercise
43. With respect to Elaina's entire eyes and periocular structures,
Defendants breached that duty by:
a. Remqving and retaining excessive tissue;
44. Defendants' breach of said duty of care 1 proximately caused Plaintiff
lllJUry.
same actions in the same 01· similar circumstances. The collection and

----=============~==:'::::===--------------
H.
(Spinal Cord)
46. There is a special relationship between a decedent's nextvofvkin and a
47. Defendants owed Plaintiff, as Elaina's nextvof-kin, a duty to exercise
48. With respect to Elaina's entire thoracolumbar spinal cord, Defendants
breached that duty by:
lnJury.

Plaintiff's Original Petition for Mishandling of Human Remains and !
______I:':'n':':t':'e~r~£:':'e~re':':n':':c':':e':':::':w:'i':':t~hF'::i':':n::a::I::'D~is'::'p::o:':s'::'i':':ti':'o':'n'.::"'R':':i~g:':'h':':ts~-------------------t--
I.
(Heart)
51. There is a special relationship between a decedent's next*of*kin and a
52. Defendants owed Plaintiff, as Elaina's nextRof*kin, a duty to exercise
53. With respect to Elaina's heart, Defendants breached that duty by:
lllJlITy.
same actions in the sarne or similar circumstances. The collection and
Ortiz v. Matshes, et al. ~ Page 14 of 19

J.
(Lungs)
58. With respect to Elaina's lungs, Defendants breached that duty by:
lll)ill'Y-
Ortiz v. Matshes, et al. -Page 15 of 19

-----==::::'::'==========="-·------------ I
,-
!
K.
COUNT 7 - INTERFERENCE WITH RIGHT TO
POSSESSION FOR FINAL DISPOSITION
61. As Elaina's next-of-kin, Plaintiff had the right to possession of Elaina's
remains-brain, neck, spinal cord, eyes, heart, _and lungs included. This is a
right recognized by the common law and by statute (Texas Health & Safety
Code section 711.002(a)) for final disposition.
62. Defendants, by negligent act or omission, violated Plaintiffs right to
possession for final disposition.by causing Elaina's brain and dur'a matter,
neck, spinal cord, eyes, heart, and lungs to be removed and retained.
63. Defendants' acts or omissions proximately caused Plaintiff injury.
L.
DAMAGES
65. Plaintiff seeks money damages within the Court's jurisdictional limits
for: (a) Mental anguish damages sustained in the past; and (b) Jvlental
anguish damages that Plaintiff will, in all probability, sustain in the future.

----======='=''='=========='---------------
66. Plaintiff seeks exemplary damages from Defendants and allege that
Defendants were grossly negligent. Defendants were aware of a substantial
and unjustifiable risk of harm to Plaintiff but disregarded same.
M.
CIVIL CONSPIRACY
67. Defendants Matshes, Andrews, NAAG, and NAAG Labs were members
of a combination to accomplish an unlawful purpose or a lawful purpose by
unlawful means; Defendants had a meeting of the mind_s on the object or
course of action; one or more of the Defendants committed an unlawful, overt
act to further the, object or course of action; and Plaintiff suffered an injury as
a result of the unlawful act.
N.
RESPONDEATSUPERIOR
6'8. At all relevant times, Evan Matshes and Sam Andrews were employees
of NAAG and NAAG Labs. The torts complained of herein were committed
during the course and scope of their employment with NAAG and NAAG
Labs. As such, NAAG and NAAG Labs are vicariously liable for same.
o.
PIERCING THE CORPORATE VEIL
69. Tbe corporate form of NAAG and NAAG Labs should be disregarded
under the alter ego doctrine or because there are inadequately capitalized
with the effect of creating an injustice. NAAG and NAAG Labs were

----~I=n=t=e=r=£e=r=e=n=c=•=~wi=th==F=i=n=a=l=D=i=s=p~o=s=U=i=o=n=R°'=ig~h~t=s'----------------·----t
I
organized and operated as a mere tool or business conduit, as to each other
and for Defendant Evan Matshes. Therefore, the corporate form of NAAG
and NAAG Labs _should be disregarded.
70. NAAG and NAAG Labs are inadequately capitalized to conduct the
I
business it was conducting. Therefor¢, the corporate form of NAAG and
NAAG Labs should be disregarded.
P.
JOINT AND SEVERAL LIABILITY
71. Defendants are jointly and severally liable for the torts complained of
he.rein.
Q.
CONDITIONS PRECEDENT
72. All conditions precedent have been performed or have occurred.
R.
REQUEST FOR DISCLOSURE
73. Plaintiff requests that Defendants disclose, within fifty (50) days of the
service of this request 1 the information or materials described in Rule 194.2
of the Texas Rules of Civil Procedure.
s.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the
Court enter judgment against Defendants, jointly and severally, for Plaintiffs

-----========='====~'=='=====-------------~
actual damages, exemplmy damages, pre-judgment interest, post-judgment
interest, an\i costs of Court. Plaintiff further prays for such other relief to
which she may be entitled under law or equity.
WARE & GARCIA, PLLC
~Ware
SEN: 20864500
Benjamin P. Garcia
SEN: 24073120
Crystal A. Link
SEN: 24098349
1915 Broadway
(v) (806) 763-5044
(f) (806) 763- 7536
office@waregarciala w .com
COUNSEL FOR PLAINTIFF

flaintiffs Origin~LPetition for Mishandling of Human Remains and

Exhibit E

Filed 3/29/2019 9:56 AM
Barbara Sucsy
District Clerk
dm
CAUSE NO. 2019534421

§
Plaintiff §
§
vs. §
§ IN AND FOR
LABS, PC, §
§
DEFENDANTS’ ORIGINAL ANSWER
Comes now, EVAN MATSHES, MD; SAM ANDREWS, MD; NATIONAL AUTOPSY
ASSAY GROUP, LLC; and NAAG PATHOLOGY LABS, PC (“Defendants”) and answer
Plaintiff’s Original Petition as follows:
I.
DISCOVERY
Defendants allege that discovery in this case should be conducted at Level 3 under a
discovery control plan tailored to the circumstances of this lawsuit under TEX. R. CIV. P. 190.4.
II.
SPECIAL EXCEPTION
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.
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.
DEFENDANTS’ ORIGINAL ANSWER - PAGE 1 147074V1

IV.
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 Chief Medical
Examiner services including administrative functions. 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. Ortiz.
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
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 determine whether an
autopsy is necessary.
C. The sole proximate cause of any injuries or damages to Plaintiff are the acts or
omissions of Dr. Stephen Pustilnik. Dr. Pustilnik performed the autopsy in question. Dr. Pustilnik
performed all significant portions of the autopsy, even technical tasks normally delegated to a
technician. Dr. Pustilnik was an independent contractor of Lubbock County and has no affiliation
with Defendants. Because of problems in Dr. Pustilnik’s past, relayed by Lubbock County officials,
and the unique nature of the case, Dr. Andrews gave a list of suggestions to Dr. Pustilnik before the
autopsy. The suggestions were in accordance with standard autopsy techniques of qualified forensic

pathologists. As a licensed medical doctor, Dr. Pustilnik was obligated to exercise his own
independent professional judgment and to act ethically. If Dr. Pustilnik did anything inappropriate
during the autopsy (and Defendants are unaware of anything he did inappropriately), that act or
omission was the result of Dr. Pustilnik exercising his own independent professional judgment and
Defendants have no liability for his acts or omissions. Plaintiff’s claims of mishandling of remains
and interference of right to possession for final disposition are based on the acts or omissions of Dr.
Pustilnik.
D. Plaintiff’s allegation that the manner in which the autopsy was performed is not
“statutorily authorized” is false. No Texas statute directs a medical examiner how to perform an
autopsy.
E. Plaintiff’s claims are based upon an alleged “special relationship” between Plaintiff
and Defendants. There is no relationship at all between Plaintiff and Defendants, and Defendants
owe no legal duties to Plaintiff. Any connection of any Defendant to the autopsy in question was in
the performance of the duties of the Medical Examiner’s office and duties owed to Lubbock County
and the State of Texas. Because this case involved potential criminal activity, it would be illegal for
the Medical Examiner to follow the wishes of a family member that conflicted with the Medical
Examiner’s duties to Lubbock County or the State of Texas.
F. Defendants contracted with Lubbock County to perform the governmental duties of
the operation of the Medical Examiner’s office. Any connection of any Defendant to the autopsy in
question 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.

G. Any connection of Defendants with the autopsy in question 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).
H. 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.

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.
I. 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.
J. 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 their costs, and for such other and
further relief to which they may show themselves justly entitled, either at law or in equity.

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 EVAN MATSHES, MD;

SAM ANDREWS, MD; NATIONAL AUTOPSY ASSAY
GROUP, LLC; AND NAAG PATHOLOGY, PC

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:
Travis S. Ware VIA ELECTRONIC FILING

Benjamin P. Garcia
Crystal A. Link
office@waregarcialaw.com
WARE & GARCIA, PLLC
1915 Broadway
ATTORNEYS FOR PLAINTIFF
__________/s/Thomas C. Riney_____________
Thomas C. Riney

2019-05-07 Motion To Dismiss - Ortiz

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2019-05-07 Motion To Dismiss - Ortiz

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Filed 5/7/2019 4:09 PM

CAUSE NO. 2019534421

DEFENDANTS’ MOTION TO DISMISS

TO THE HONORABLE DISTRICT COURT:

Come now, EVAN MATSHES, M.D.; SAM ANDREWS, M.D.;

NATIONAL AUTOPSY ASSAY GROUP, LLC; and NAAG PATHOLOGY

DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147437V1

this Court the following:

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

DEFENDANTS’ MOTION TO DISMISS – PAGE 2 147437V1

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

In particular, Ortiz cannot establish by clear and specific evidence a prima

defendants’ alleged mishandling of remains, she cannot demonstrate that there is a

since she cannot establish any underlying tort.

DEFENDANTS’ MOTION TO DISMISS – PAGE 3 147437V1

legal action is required.

A. NAAG provides medical examiner services to Lubbock County.

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

NAAG. Ex. A, Matshes Affidavit, ¶ 3; Ex. B, Andrews Affidavit, ¶ 2.

Pursuant to a contract with Lubbock County, NAAG agreed to provide the

services of a Chief Medical Examiner, including death investigation services as

required by the Texas Code of Criminal Procedure. Ex. A, Matshes Affidavit, ¶¶ 4-

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

provide comprehensive “full spectrum” death investigation services, including

DEFENDANTS’ MOTION TO DISMISS – PAGE 4 147437V1

administrative functions typical of the Chief Administrative Officer and Department

Examiner of Lubbock County at all relevant times).

B. Death of Elaina Castilleja

According to Ortiz’s petition, Elaina Castilleja suffered traumatic brain injury

as a young child as a result of abuse by her parents, resulting in their prosecution

an email from a senior forensic technician at the Medical Examiner’s office

employed by Lubbock County. Ex. A, Matshes Affidavit, ¶ 6; Ex. B, Andrews

DEFENDANTS’ MOTION TO DISMISS – PAGE 5 147437V1

¶ 6; Ex. B, Andrews Affidavit, ¶ 5. Ortiz reported to a representative of the Medical

B, Andrews Affidavit, ¶ 5. Under these circumstances, and in his role as Lubbock

B, Andrews Affidavit, ¶ 5; Ex. A, Matshes Affidavit, ¶ 6; see also, Tex. Code of

examiner under circumstances when a person dies within 24 hours of admission to

Andrews Affidavit, ¶ 6; Ex. A, Matshes Affidavit, ¶ 7. Prior to the NAAG contract

DEFENDANTS’ MOTION TO DISMISS – PAGE 6 147437V1

Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. As a part of its contract,

performed by Dr. Pustilnik, including a determination of the cases to which he was

Affidavit, ¶ 4. Representatives of Lubbock County informed Dr. Andrews and Dr.

deaths. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. But, because

the autopsy. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

perform a standard, complete pediatric forensic autopsy and to preserve certain

DEFENDANTS’ MOTION TO DISMISS – PAGE 7 147437V1

Affidavit, Ex. 1; Ex. B, Andrews Affidavit, Ex. 3. NAAG provided in-person,

technical support by flying a NAAG Forensic Autopsy Technician to Lubbock. Ex.

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

The removal and preservation of organs during an autopsy is often necessary

Affidavit, ¶ 10 and Ex. 2 (recommending in cases of suspected head trauma in infants

DEFENDANTS’ MOTION TO DISMISS – PAGE 8 147437V1

Examiner. Ex. B, Andrews Affidavit, ¶ 7. Likewise, the only connection NAAG or

services to Lubbock County. Ex. A, Matshes Affidavit, ¶ 9. Neither Dr. Andrews

Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶7.

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

employment duties with NAAG. Ex. A, Matshes Affidavit, ¶ 3. The only

Medical Examiner. Ex. B, Andrews Affidavit, ¶ 10.

DEFENDANTS’ MOTION TO DISMISS – PAGE 9 147437V1

Examiner’s office pursuant to NAAG’s contract to perform those services. Ex. A,

Matshes Affidavit, ¶ 12.

submit the following for the Court’s consideration:

A Affidavit of Dr. Evan Matshes, with attached exhibits