DEFENDANTS’ FIRST AMENDED ANSWER

 AND ORIGINAL AFFIRMATIVE DEFENSES

 

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Harry A. Harrison (“Harry Harrison”) and Dottie Harrison, (collectively “defendants”) proceeding pro se for their First Amended Answer and Original Affirmative Defenses to the First Amended Petition of Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A.(collectively “plaintiffs”), and respectfully show the court as follows:

FIRST AMENDED ANSWER

PARTIES

1.     Defendants Harry and Dottie Harrison are without knowledge or belief as to the truth or falsity of the averment of residence of the plaintiff Dr. Mark Nichols.

2.     Defendants Harry and Dottie Harrison are without knowledge or belief regarding the alleged professional status of plaintiff Mark Lynn Nichols, M.D., P.A., and therefore deny such statement.

3.     Defendants Harry and Dottie Harrison admit that they are natural persons residing in Brazoria County, Texas; and that they have answered and appeared in this suit.

JURISDICTION AND VENUE

4.    (a) Defendants Harry and Dottie Harrison are without knowledge or belief as to the truth or falsity of the averment that the amount in controversy in this cause, exclusive of interest and costs, exceeds the minimum jurisdictional limits of this court. (b) defendants deny that venue is proper in Harris County, Texas because they deny plaintiffs’ allegation that all or any part of the alleged actions complained of by plaintiffs accrued in Harris County, Texas (indeed, none of the alleged actions of complaint occurred in Harris County); however, defendants failed to move for a change of venue in their original answer and therefore cannot object to the venue.

DISCOVERY

5.     Defendants Harry and Dottie Harrison are without knowledge or belief as to whether Level II discovery is proper in this cause but do not challenge the level of discovery at this time.

CONDITIONS PRECEDENT

6.     Defendants Harry and Dottie Harrison are without knowledge or belief regarding the truth of plaintiffs’ claim that all conditions precedent to the filing of this suit and request for relief have been expressly complied with.

FACTS

7.     Defendants admit that Harry Harrison first consulted Dr. Mark Nichols on January 17, 2001. However, defendants Harry and Dottie Harrison are without knowledge or information sufficient to form beliefs as to the truth of the allegations that (a) Mark Lynn Nichols M.D., P.A. is a partner in Houston ENT Clinic, L.L.P., and (b) that after obtaining the history from Mr. Harrison, Dr Nichols provided treatment and surgical repair for obstructive sleep apnea, nasoseptal deviation, and bilateral inferior turbinate hypertrophy, and therefore deny these statements. (c) Defendants further deny plaintiffs’ allegation, “It is undisputed that the treatment and surgery were successful.”

8.     Defendants Harry Harrison and Dottie Harrison deny the allegations in this entire paragraph, except to affirm that in March of 2002 defendant Dottie Harrison did publish a truthful account on her web page of problems caused by Dr. Nichols negligence regarding his medical records on her husband, Harry Harrison, and that in July of 2002 defendant Dottie Harrison did send truthful letters of complaint to Dr. Nichols’ licencing boards and other organizations that are advertised on Dr. Nichols’ web page, of which he is a member, and/or of which he claims to be a member. Defendants aver that they have never said or written anything but the truth about plaintiff Dr. Mark Nichols; and aver that they have never said or written anything at all about plaintiff Mark Lynn Nichols, M.D., P.A.

CAUSES OF ACTION

Libel

9.      Defendants deny that all of the above referenced paragraphs are factual.

10.    Defendants deny the allegations in the entire paragraph and aver that they have never said or written anything but the truth about plaintiff Dr. Mark Nichols; and aver that they have never said or written anything at all about plaintiff Mark Lynn Nichols, M.D., P.A.

Slander

11.    Defendants deny that any of the above referenced paragraphs are factual.

12.       (a) Defendants deny the allegations that they made any defamatory or slanderous or untruthful statements about plaintiff Dr. Mark Nichols and aver that they have made no statements whatsoever about plaintiff Mark Lynn Nichols, M.D., P.A.; (b) defendants aver that any and all communications made by either of them regarding plaintiff Dr. Mark Nichols were privileged;  and (c) further, defendants deny that Harry Harrison published anything at all about plaintiff or plaintiffs on the internet; and that the completely truthful statements published on the internet by defendant Dottie Harrison about Dr. Mark Nichols were not intended to damage Dr. Nichols’ reputation and/or to inflict injury on Dr. Nichols’ medical practice, but merely to help other people avoid potentially serious problems which can be created by misleading and/or incorrect medical records.

Business Disparagement

13.  Defendants deny that the above referenced paragraphs are factual.

14.  (a) Defendants Harry and Dottie Harrison deny that they have made any false or misleading statements about plaintiff Dr. Mark Nichols, and deny that they have made any statements at all about plaintiff Mark Lynn Nichols, M.D., P.A. (b) Further, neither did defendant Harry Harrison nor defendant Dottie Harrison ever have any intent of harming plaintiff Dr. Mark Nichols or his economic interests of his professional practice; but instead, defendant Dottie Harrison’s intent in publishing the true story of serious problems caused by Dr. Nichols’ misleading and incorrect medical records on her husband, defendant Harry Harrison, was with the intent of helping other people avoid those kinds of problems. (c) Further, defendant Dottie Harrison’s communications regarding plaintiff Dr. Mark Nichols are protected by either or both an absolute privilege or a qualified privilege. (d) Lastly, defendants Harry and Dottie Harrison deny that plaintiffs are entitled to any damages whatsoever, and deny that they have engaged in any malicious conduct whatsoever regarding plaintiffs.

 Damages

15.         Defendants Harry and Dottie Harrison deny that they have made any false and defamatory statements about plaintiff Dr. Mark Nichols, and deny that they have made any statements at all about plaintiff Mark Lynn Nichols, M.D., P.A. Defendants aver that any statements either of them made about plaintiff Dr. Mark Nichols have been absolutely truthful, and they deny that plaintiffs are entitled to any damages whatsoever.

AFFIRMATIVE DEFENSES 

Facts 

This is a suit arising from the plaintiffs’  misuse of legal process and other harassment of the defendants, all in retaliation for defendant Dottie Harrison having exercised her protected rights in publically and truthfully complaining about plaintiff Dr. Mark Nichols’ neglect to keep accurate and complete medical records on her husband, Harry Harrison, causing Harry Harrison to be denied health insurance under Dottie Harrison’s policy, and plaintiffs’ intentional refusal to clarify his records after polite requests to do so by defendant Dottie Harrison.

To each cause of action in complaint by plaintiffs, defendants allege and aver the following:

FIRST AFFIRMATIVE DEFENSE

        Plaintiffs’ unverified complaints fail to allege facts sufficient to constitute a cause of action against defendants.

SECOND AFFIRMATIVE DEFENSE

Plaintiffs’ unverified complaints are barred because any or all of statements made by defendant Harry Harrison or defendant Dottie Harrison are privileged under the constitutional right of freedom of speech as guaranteed by the First Amendment to the U.S Constitution and by the Texas Constitution, Article 1, Section 8.

THIRD AFFIRMATIVE DEFENSE

    At all times relevant to this action, defendants Harry Harrison and Dottie Harrison acted in the good faith belief that their actions were protected under the First Amendment.

FOURTH AFFIRMATIVE DEFENSE

Defendants Harry Harrison and Dottie Harrison made no statements, false or otherwise, about plaintiff Mark Lynn Nichols, M.D., P.A. Further, regarding plaintiff Dr. Mark Nichols, any statements made by defendants Harry Harrison and/or  Dottie Harrison orally, on the internet, and/or in letters or other communications, are absolutely and/or qualifiedly privileged, and in addition, are absolutely truthful.

FIFTH AFFIRMATIVE DEFENSE

Under Texas Civil Practice & Remedies Code, § 73.002, Privileged Matters, states that (a) The publication by a newspaper or other periodical of a matter covered by this section is privileged and is not a ground for a libel action and (b) This section applies to: (1) a fair, true, and impartial account of (2) reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information. (Italics are mine.) Defendant Dottie Harrison avers that her truthful report on the internet about plaintiff Dr. Mark  Nichols and the problems that he caused and that can be caused by inaccurate or incomplete medical records is definitely a serious matter of public concern.

SIXTH AFFIRMATIVE DEFENSE

Defendant Dottie Harrison’s web site referenced by plaintiffs does not create an income, nor is it a marketing or commercial entity. It is strictly an information portal designed as a public service.

SEVENTH AFFIRMATIVE DEFENSE

Defendant Dottie Harrison’s creation and publication of the web site referenced by plaintiffs is used to speak out about consumer rights and remedies, which is an important public issue. Defendant Dottie Harrison’s goal is to inform the public regarding these issues. Statements made on defendant Dottie Harrison’s web site are a furtherance of her rights, protected under the constitutional right of freedom of speech as guaranteed by the First Amendment to the U.S. Constitution and by the Texas Constitution, Article 1, Section 8.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs’ own web site lists the Boards and Associations of which he is a member, and/or  those of which he claims to be a member, for the general public to view, and thus invites the public to contact the Boards and Associations listed therein. (Plaintiff Dr. Mark Nichols’ web site is at http://www.houstonent.com/index02.htm, then click on “Table of Contents,” then “Physician Profiles,” then “Mark L. Nichols, MD.”) Defendants Harry and Dottie Harrison aver that any communications by them regarding plaintiff or plaintiffs have been privileged. Further, doing a search on Google for “Dr. Mark Nichols” or “Mark Lynn Nichols, M.D., P.A.” does not give a link to defendant Dottie Harrison’s web page, indicating the information about Dr. Mark Nichols to the public at large from her web site in question is quite limited.

NINTH AFFIRMATIVE DEFENSE

Defendants have immunity from civil prosecution by plaintiffs under Sec. 160.010 of the Texas Occupations Code, which specifies that a person who, in good faith, reports or furnishes information to a medical peer review committee or the board; (my italics) is immune from civil liability.

TENTH AFFIRMATIVE DEFENSE

Plaintiffs are barred from maintaining or recovering on the purported causes of action in the unverified complaints on the grounds that any alleged conduct by the defendants was privileged.

 ELEVENTH AFFIRMATIVE DEFENSE

    Absolute privilege is one of only two total defenses to claim of slander; the other one is truth. Defendants aver that they have said nothing but the truth about plaintiff Dr. Mark Nichols and that they have said nothing at all about plaintiff Mark Lynn Nichols, M.D., P.A.

TWELFTH AFFIRMATIVE DEFENSE

“The truth of the statement in the publication on which an action for libel is based is a defense to the action,”  Texas Civil Practice & Remedies, §73.005. There is no recourse for truthful remarks, even if the remarks "hurt, are embarrassing, or subject one to ridicule.” Defendants aver that they have never said or written anything but the truth about plaintiff Dr. Mark Nichols and that they have said or written nothing at all about plaintiff Mark Lynn Nichols, M.D., P.A.

 THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiffs  in a defamation action must prove falsity, unprivileged communication, fault, and damages.

FOURTEENTH AFFIRMATIVE DEFENSE

        Defendants had an honest belief and supporting evidence that any and all of their

statements are true, and defendants aver that their statements were not made recklessly or maliciously or in bad faith.

FIFTEENTH AFFIRMATIVE DEFENSE

The defendants deny that plaintiffs have sustained any damage or loss by reason of any act or omission on the part of the defendants.     

SIXTEENTH AFFIRMATIVE DEFENSE

Truth is an absolute defense to an action for defamation, regardless of the existence of malice or bad faith, which malice or bad faith is expressly denied by defendants Harry Harrison and/or Dottie Harrison.

SEVENTEENTH AFFIRMATIVE DEFENSE

Plaintiff is barred from maintaining or recovering on any of the purported causes of action alleged in the unverified complaints on the grounds of plaintiffs’ unclean hands.

EIGHTEENTH AFFIRMATIVE DEFENSE

        Plaintiffs’ claims are barred by the plaintiffs’ breaches of the covenant of good faith and fair dealing.

NINETEENTH AFFIRMATIVE DEFENSE

        Defendants’ conduct was not intentional, malicious, oppressive, or done with the intent to vex, injure, or annoy plaintiffs.

TWENTIETH AFFIRMATIVE DEFENSE

        To each cause of action set forth in plaintiffs’ complaint, defendants allege and aver that  plaintiffs have failed to mitigate their damages, if any have in fact been suffered. 

TWENTY FIRST AFFIRMATIVE DEFENSE

To each cause of action set forth in plaintiffs’ complaint, defendants allege and aver that plaintiffs’ damages, if any, were proximately and solely caused by plaintiffs.

TWENTY SECOND AFFIRMATIVE DEFENSE

        Defendants allege that plaintiffs were negligent, and otherwise at fault, with regard to the events alleged in the complaint, and that such negligence and fault is the proximate cause of any liabilities or damages plaintiff may have or will incur. Accordingly, plaintiffs’ recovery should be precluded; or to the extent plaintiffs have any claims for damages, which claim is expressly denied, defendants are entitled to an offset against plaintiffs in the amount of damages incurred by defendant as a result of plaintiffs’ beaches of duty.

TWENTY THIRD AFFIRMATIVE DEFENSE

Defendants allege and aver that plaintiffs’ complaint is barred in whole or in part by the negligent and/or other wrongful conduct of plaintiffs and/or their agents.

TWENTY FOURTH AFFIRMATIVE DEFENSE

    Defendants allege that the relief requested by plaintiff would constitute a restraint on

freedom of speech in violation of the United States Constitution and the Texas State Constitution and should thereby be denied.

TWENTY FIFTH AFFIRMATIVE DEFENSE

To each cause of action set forth therein, defendants allege and aver that defendants are entitled to their reasonable attorney's fees already paid or will be paid and costs incurred herein, plus consequential, punitive, and exemplary damages because plaintiffs’ claims against defendants are frivolous, were filed in bad faith, and are without merit.