Dr. Mark Nichols (“Dr. Nichols”) and Mark L. Nichols, M.D., P.A. (“Nichols, P.A.”) Plaintiffs, file this response to Defendants’ Motion for No Evidence Summary Judgment, and in support of Plaintiffs Request for the Court to deny Defendants’ Motion respectfully shows the Court as follows:
SUMMARY
JUDGMENT EVIDENCE
1.
Dr Nichols and Nichols, P.A., incorporate in this motion the affidavit of
Dr. Nichols, attached hereto as Exhibit “A”, and the attachments thereto.
The summary judgment evidence is offered for the purpose of showing that
sufficient fact issues exist such that Defendants are not entitled to judgment
as a matter of law.
2.
Attached hereto as Exhibit “B” are copies of records from
Defendants’ website showing that fact issues exist regarding her oral
publication of defamatory words concerning Dr. Nichols.
ARGUMENT
• Defamation.
3.
More than a scintilla of evidence exists regarding defamation. Dr.
Nichols’ affidavit shows that Defendant published a statement of fact (letters
from Harry Harrison to Unicare Life & Health Insurance Company, a letter by
Dottie Harrison, not a patient of Dr. Nichols, to the Texas State Board of
Medical Examiners, and a letter to the Houston Ear Research Foundation, a
charitable organization on whose board Dr. Nichols sits). Each of the letters
refer to Dr. Nichols. The statements are defamatory in that they allege that Dr.
Nichols was less than forthright and honest in the way he kept records for Mr.
Harrison. The affidavit shows that the statements made in the letter were false.
Finally, the affidavit shows damages suffered by Dr. Nichols.
4.
With respect to libel per se , evidence is sufficient to defeat Defendants’ motion
for no-evidence summary judgment. The affidavit of Dr. Nichols shows that the
statements made by Harry Harrison and Dottie Harrison in the letters attached to
the affidavit were false. The letters also suggest that because Dottie Harrison
was not a patient of Dr. Nichols, her referral to the Texas Board of Medical
Examiners was done maliciously, or negligently. Finally, the affidavit shows
that Dr. Nichols and Nichols, P.A., suffered injury because of Defendants’
libel.
5.
With respect to libel, libel per
se against Nichols, P.A., Dr.
Nichols’ affidavit states that he is the principal of his professional
association and that any damages suffered by him individually are likewise
suffered by his professional association, considering how the two
entities are
intertwined. Defendants are not entitled to summary judgment on any defense to
libel or libel perse against Nichols,
P.A.
6.
Dr. Nichols’ affidavit states that with respect to the business
disparagement claim, that the Defendants published disparaging words about Dr.
Nichols’ economic interests, which were false, published with malice, without
privilege and which caused special damages. Defendants’ motion for no evidence
summary judgment on the issue of business disparagement should be denied.
•
Slander and Slander Per Se
7.
The affidavit of Dr. Nichols and the documents attached thereto state
that Defendant spoke on more than one occasion through persons or parties
regarding the Plaintiff and that the statements were statements of fact, that
referred to the Plaintiff, were defamatory, were false and were made with actual
malice, negligence or strict liability and that as a result, Dr. Nichols and
Nichols, P.A., suffered injury.
• Damages.
8.
Dr. Nichols’ affidavit shows how the sum $95,619.00 was computed. The
affidavit demonstrates that based on his experience and his company, that
Defendants’ libelous and defamatory statements caused or contributed to the
damages suffered by Dr. Nichols and Nichols, P.A.
• Liability for Punitive Damages
9.
Dr. Nichols’ affidavit shows that the Defendants’ actions were gross,
wanton or made with reckless disregard for the rights of Dr. Nichols and
Nichols, P.A. Exemplary damages are an amount that should be decided by the
trier of fact. Additionally, the amount of requested exemplary damages has been
changed and amended by virtue of Plaintiffs’ third amended petition.
OFFENSIVE
USE DOCTRINE
10.
Defendants’ no evidence motion for summary judgment must be denied
because Defendants refused to respond to discovery going to the heart of the
Plaintiffs’ claims against Defendants. Specifically, Dottie Harrison refused
to answer appropriate questions to her to explain the basis of her and her
husbands counterclaims and defenses to Plaintiffs’ lawsuit. Dottie
Harrison’s deposition transcript reads in relevant part:
Q: So, you’re going tot write to third
parties, the Houston Ear Research Foundation, making statements about my client;
and then here in this litigation not tell me the basis for your statement; is
that correct?
A: On anything that includes information
about my husband’s medical records, yes.
Q: Well, you agree with me that you made this statement “Dr. Nichols’ misleading and incomplete medical records were the direct cause of Harry being denied health coverage by my insurance company”?
A: Yes, I do.
Q: But you’re not going to tell me what
you are using as the basis for that statement that you sent to Houston Ear
Research Foundation?
A: As I said, we’re going to take that
up with the Court in camera.
(See
Deposition
Transcript Excerpts attached hereto as Exhibit C, page 11)
Dottie Harrison again refuses to answer questions
directed at a defamatory letter also made the basis of Plaintiffs’ lawsuit.
Q: Did you write Exhibit 4, the April
3,2002, Ietter to Unicare Life and Health Insurance Company?
A: This is privileged information. This
was supposed to have been returned by your office, the original and all copies1.
And I’m not going to say anything about this.
0:
Are you refusing to answer my question?
A: Yes, I am.
(See
Deposition
Transcript Excerpts attached hereto as Exhibit C, page 25.)
‘Ms. Harrison did not understand that the document
was properly discoverable and
had
no privilege as she erroneously claimed.
0:
Well, are you going to tell me what’s wrong with Dr. Nichols’ medical
records?
A: I told you that they are misleading,
inaccurate , and
incomplete, or they were at the time.
0:
Are you going to tell me how?
A: Not at this time.
(See
Deposition
Transcript Excerpts attached hereto as Exhibit C, page 37)
12.
The statements at issue in the above exchange are the basis of
Plaintiffs’ lawsuit. The questions directly relate to both liability of the
Defendants and damages asserted by the Defendants in their counterclaims.
Defendants refused to answer questions regarding the statements. Defendants may
not now offensively use their refusal to answer discovery as support for their
no evidence motion for summary judgment. A party may not “use one hand to seek
affirmative relief and with the other lower an iron curtain of silence” around
the facts of the case. Ginsberg v. 5th
Ct. of Appeals, 686 S.W.2d 105,108 (Tex. I 985)(the offensive use doctrine). The
affirmative relief that Defendants seek through their no evidence motion for
summary judgment, despite refusing to answer relevant and appropriate questions
at deposition, is exactly the type of conduct that the offensive use doctrine
preempts. Moreover, Defendants bald refusal to answer questions at deposition
forces Plaintiffs to seek another deposition. Plaintiffs have been unable to
obtain additional depositions.2 Defendants motion should be denied.
2The last depositions required Court order and
supervision by Judge Katie Kennedy. Unfortunately, Judge Kennedy left just
before Dottie Harrison decided to refuse to answer questions.
13.
Defendants have brought their motion for summary judgment as a no evidence
motion. In spite of such fact, they have attached affidavits and other summary
judgment evidence to the motion. Accordingly, the motion should be treated as a
traditional motion for summary judgment under Rule 166a and not as a no evidence
motion. In such regard, as a traditional motion for summary judgment, Defendants
carry the entire burden of proof and the Court must rely only on the summary
judgment evidence before it.
AMENDED
PLEADING
14.
Attached hereto as Exhibit “D” and incorporated herein by reference is a
copy of Plaintiffs’ Third Amended Petition. The petition asserts a different
damage amount than prior pleadings. As such, and in accordance with Sosa
v. Central Power & Light, 909 S.W.2d 893 (Tex. 1995), Defendants’
motion should be denied.
OBJECTIONS
TO SUMMARY JUDGMENT
EVIDENCE
• Affidavit
of Cohn Cody.
Objection
No. I. Dr.
Nichols and Nichols, P.A. object to the affidavit of Cohn Cody. The law in the
State of Texas is that unless authorized by statute, an affidavit is
insufficient unless the allegations contained therein are direct and unequivocal
and perjury can be assigned upon it. The Texas Supreme Court so held in Brownlee
v. Brownlee, 665 S.W.2d III (Tex. 1984). In that case, the Texas Supreme
Court considered the affidavit attached to a motion for summary judgment. The
affidavit in the Brownlee case was an
affidavit that did not positively and unqualiflably represent the “facts” as
disclosed in the affidavit. The Texas Supreme Court’s holding in support of
its conclusion was that because the affidavit did not represent the “facts”
as disclosed in the affidavit to be “true and within [affiant’s] personal
knowledge” that the affidavit was defective. 665 S.W.2d at 112. As such, the
affidavit of Cohn Cody is insufficient. Dr. Nichols and Nichols, P.A., object to
its inclusion in the summary judgment record.
Objection
No. 2. Dr.
Nichols and Nichols, P.A., object to the affidavit of Cohn Cody because it is
conclusory. The affidavit makes a conclusion regarding the “attached financial
documents” without attaching the documents themselves. As in Guthrie
v. Suites, 820, 824-25 (Tex. App. -
Houston [1st
Dist.] 1996 no writ)
the Court should exclude Mr. Cody’s affidavit because it does not include the
documents that he relied upon in reaching his opinion.
Objection
No. 3. Dr.
Nichols and Nichols, P.A., object to the affidavit of Cohn Cody under Rule I
66a(c), which states that summary judgment may be based on uncontraverted
testimonial evidence of an expert witness, so long as the evidence is clear,
positive and direct, otherwise credible and free from contradictions and
inconsistencies. Mr. Cody’s affidavit is not clear, positive and direct and
otherwise credible, free from contradiction and inconsistencies. The affidavit
states what he would need in order to ascertain whether a loss occurred. The
affidavit is not direct in refuting evidence that a loss has occurred. It simply
states what would be needed for him to be able to disprove a loss. As such, Dr.
Nichols and Nichols, P.A., object to the use of Cohn Cody’s affidavit.
Objection
No. 4. Dr.
Nichols and Nichols, P.A.., object to the affidavit of Cohn Cody because the
affidavit is not clear, positive and direct. Without foundation, Mr. Cody
speculates on what is needed to fully ascertain if a loss has occurred. There is
nothing in Cohn Cody’s affidavit to suggest that a loss has unequivocally not
occurred. He simply states what he needs to verify that one has not occurred.
Mr. Cody’s affidavit should be disregarded.
• Affidavit of
Harry Harrison.
15.
Dr. Nichols and Nichols, P.A. object to the affidavit of Harry A.
Harrison and request that the Court sustain the objections, in the following
particulars:
Objection
No. 5. In
the second quoted paragraph on page I of Harry Harrison’s affidavit, he states
that “when someone speaks at an AA meeting, the speaker must introduce himself
or herself by first name and then state, “I am an alcoholic.” Even young
kids who have been ordered by the Court to thirty (30) days’ AA meetings after
they have gotten in trouble for being drunk. Those are the rules.” Dr. Nichols
and Nichols, P.A. object to this statement as it is hearsay.
Objection
No. 6. Dr.
Nichols and Nichols, P.A. object to the first sentence in the first full
paragraph on page 2 of the affidavit of Harry Harrison. This statement is an
attempt to bolster Mr. Harrison’s testimony as being of great truth and
veracity, when his capacity for truth and veracity has not been called into
question. Tex.R.Evid. 608(a)(2). Plaintiff objects to its admissions.
Objection
No.7. Dr.
Nichols and Nichols, P.A. object to the second sentence contained within the
second full paragraph on page 2 of Harry Harrison’s affidavit regarding the
‘‘many horror stories told by other people in the meetings about their
problems caused by alcohol, problems that did not mirror my situation or my life
at all,” which Mr. Harrison said he heard. It is hearsay. Plaintiffs object to
its admission.
Objection No. 8. Dr. Nichols and Nichols, P.A. object to the second sentence of the
third full paragraph contained on page 2 of Mr. Harrison’s affidavit,
specifically that language which concerned the “the frightening stories I
heard people tell about the effects of alcohol in their lives, I decided that
there was simply no reason to have alcohol in my life.” The statement
regarding what Mr. Harrison heard in terms of “frightening stories” is
hearsay. Plaintiffs object to its admission.
Objection
No. 9. Dr.
Nichols and Nichols, P.A. object to the first full paragraph on page ~ of Mr.
Harrison’s affidavit, specifically the statements of Harry Harrison that he
“heard testimony in those few AA meetings sixteen year ago that abstaining
from alcohol was a difficult struggle for most alcoholics, a struggle that many
of them experienced every day of their lives, a struggle that many of the ‘old
timers’ said they had experienced every day, year after year.” The statement
is hearsay. Plaintiffs object to its admission.
Objection
No. 10. Dr.
Nichols and Nichols, P.A. object to the seventh paragraph beginning on page 3 of
Mr. Harrison’s affidavit. The fact that he is being sued, the fact that he
does not have a lawyer, the fact that he is doing his best to learn the
complicated process of defending himself without a lawyer has no tendency to
make the existence of any fact that is of consequence to the determination of
this action more probable or less probable than it would be without the
evidence. In short, the testimony is irrelevant. Plaintiffs object to the
admission of the affidavit.
Objection
No. 11. Dr.
Nichols and Nichols, P.A. object to the second paragraph beginning on page 3 of
Mr. Harrison’s affidavit, specifically where he states: “I do know with
absolute certainty that I am left-handed, and the manner of circling of the word
“alcoholism’ on Dr. Nichols’ form is inconsistent with the manner in which
the other words on the form are circled - the words that I did have reason to circle.” This statement is a
conclusion of fact not supported with any foundation or basis in fact.
Plaintiffs object to its admission.
Objection
No. 12. Dr.
Nichols and Nichols, P.A. object to the statements made in the second paragraph
contained on page 3 of Harry Harrison’s affidavit that “as an experiment, I
have tried to circle a word even somewhat like the manner in which the
word ‘alcoholism’ is circled on Dr. Nichols’ form --
and I was unable
to do so because of my left-handedness.” This statement is hearsay as it is an
out-of-court statement attempting to prove the truth of the matter asserted, is
not scientific, is irrelevant and is conclusory in nature. Plaintiffs object to
its admission.
Objection
No. 13. Dr.
Nichols and Nichols, P.A. object to the first full paragraph contained on page 4
of Harry Harrison’s affidavit. The statement is hearsay and is not supported
by evidence in the record. It should be excluded from the summary judgment
record.
Objection
No. 14. Dr.
Nichols and Nichols, P.A. object to the second full paragraph on page 4 of Harry
Harrison’s affidavit. The statements regarding Mr. Harrison are irrelevant to
this case.
Objection
No. 15. Dr.
Nichols and Nichols, P.A. object to the fourth full paragraph on page 4 of Harry
Harrison’s affidavit, specifically that sentence which states “[un
addition, it is
my belief that the manner in which Dr. Nichols wrote about me in reference to
alcohol leads people to conclude that I have a current or recent problem with
alcohol.” This statement is conclusory and is hearsay. The statement calls for
speculation. Plaintiffs object to the evidence.
Objection
No. 16. Dr.
Nichols and Nichols, P.A. object to the rhetorical question and hypothetical
antecedent consequent phrases (i.e, if/then)
contained in the last paragraph of Harry Harrison’s affidavit as not being
clear, direct and free of contradiction as required for affidavits under
Tex.R.Civ.P. 166a. The paragraph should be stricken and disallowed from the
summary judgment record.
• Affidavit of Pamela Erickson.
Objection
No. 17. Dr.
Nichols and Nichols, P.A., object to the affidavit of Pamela Erickson. The law
in the State of Texas is that unless authorized by statute, an affidavit is
insufficient unless the allegations contained therein are direct and unequivocal
and perjury can be assigned upon it. The Texas Supreme Court so held in Brownlee
v. Brownlee, 665 S.W.2d 111 (Tex. 1984). In that case, the Texas Supreme
Court considered the affidavit attached to a motion for summary judgment. The
affidavit in the Brownlee case was an
affidavit that did not positively and unqualifiably represent the “facts” as
disclosed in the affidavit. The Texas Supreme Court’s holding in support of
its conclusion was that because the affidavit did not represent the “facts”
as disclosed in the affidavit to be “true and within [affiant’s] personal
knowledge” that the affidavit was defective. 665 S.W.2d at 112. As such, the
affidavit of Pamela Erickson is insufficient. Dr. Nichols and Nichols, P.A.,
object to its inclusion in the summary judgment record.
Objection
No. 18. Dr.
Nichols and Nichols, P.A., object to the affidavit of Pamela Erickson as it
purports to attach a document which is without foundation and which is hearsay.
Objection No. 19. Dr. Nichols and Nichols, P.A., object to the affidavit of Pamela Erickson as it is not clear, positive, direct and free of contradiction as required by Tex. R.Civ. P.1 66a(c).
Objection
No. 20.
Should the Court consider the report of February 22, 2003, submitted by Pamela
Erickson, Dr. Nichols and Nichols, P.A., object to the report. It does not
provide clear, positive and direct testimony and only creates a further fact
issue as to whether Harry Harrison circled the word “alcoholism.” The
affidavit only poses more fact questions. Dr. Nichols and Nichols, P.A., object
to the affidavit.
Objection
No. 21. Dr.
Nichols and Nichols, P.A., object to the references made in Defendants’ motion
to the affidavit of Dottie Harrison. No such affidavit has been attached to
Defendants’ motion. Additionally, from their motion, it appears that Dottie
Harrison’s affidavit my have been filed under separate cover. In such regard,
Dr. Nichols and Nichols, P.A., request that the Court notice its file and recall
comments made to the parties at its last hearing regarding the extent and width
of the file. To expect Dr. Nichols and Nichols, P.A., to comb through such a
voluminous case searching for Ms. Harrison’s March 18, 2003, affidavit is
unreasonable. Dr. Nichols and Nichols, P.A., object to any reference to Dottie
Harrison’s affidavit.
CONCLUSION
16. More than a scintilla of evidence to raise issues of material fact and evidence on the elements challenged by Defendants in their motion for no-evidence summary judgment has been satisfied. The Court should deny Defendants’ motion. Dr. Nichols and Nichols, P.A., request that the Court deny Defendants’ motion and grant Dr. Nichols and Nichols, P.A., all other relief to which they are entitled.
Respectfully
submitted,
K1LLEEN
& WHEAT, PLC
Texas Bar
No. 1407000
8 Greenway Plaza, Suite 614
Houston, Texas 77046
713/626-5100 Telephone
713/626-4545 Facsimile
ATTORNEY
FOR PLAINT1FF, DR. MARK NICHOLS AND MARK LYNN NICHOLS, M.D., P.A.
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