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FILED
1/27/2023 1:59 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lafonda Sims DEPUTY
CAUSE NO. DC-22-02879
DALLAS COUNTY HOSPITAL IN THE DISTRICT COURT
DISTRICT d/b/a PARKLAND HEALTH,
Plaintiff,
DALLAS COUNTY, TEXAS
MORGAN MCANELLY, VANESSA
SANCHEZ, DIANA GARCIA, SYDNEY
RUSSELL, SAMANTHA MCKEOWN,
BRITTANY WASHINGTON, JACOB
ROCHESTER, DORMEL THOMPSON,
HANNAH JOHNSON, ESMERELDA
ORDONEZ, STEPHANIE SISK,
COURTNEY KERCHER, AND
MEAGAN HLAVENKA,
Defendants. 44TH JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANT DIANA GARCIA’S
OBJECTIONS AND MOTION TO STRIKE
Plaintiff Dallas County Hospital District d/b/a Parkland Health (“Parkland”) files this
Response to Diana Garcia’s Objections to and Motion to Strike, Plaintiff’ s Summary Judgement
Evidence and would respectfully show this Court the following:
I. ALLEN KIRBY’S AFFIDAVIT MEETS THE REQUIREMENTS OF THE TEXAS
RULES OF CIVIL PROCEDURE FOR PERSONAL KNOWLEDGE.
Defendant Garcia first argues that Allen Kirby’s affidavit was not based on personal
knowledge by blatantly misquoting his affidavit testimony. Mr. Kirby’s affidavit clearly states:
“[t]he facts stated herein are based upon my personal knowledge, information I obtained from
my predecessors and supervisors at Dallas County Hospital District d/b/a Parkland Health
(“Parkland”), as well as my review of Parkland’s records.” The bolded portions of the
quotation were entirely left out of Defendant Garcia’s recitation.
The reality is that Mr. Kirby’s testimony is based on his personal knowledge, as well as
the documents that Mr. Kirby authenticated, proved up under the business records exception to
the hearsay rule, and included with his affidavit, as required by Tex. R. Civ. P. l66a(t) and Tex.
R. EVid. 602. There is no admission by Mr. Kirby that his testimony is entirely based on
improper hearsay. To the contrary, he states the opposite.
Statements by an affiant that they have “personal knowledge” of facts stated in their
affidavits and that they were “fully competent” to make the affidavits are not improper legal
conclusions, and, thus, the affidavits were admissible as summary judgment evidence. Choctaw
Properties, L.L. C. v. Aledo I.S.D. (App. 10 Dist. 2003) 127 S.W.3d 235.
Despite Mr. Kirby stating that he was testifying from personal knowledge, summary
judgment affidavits do not need to specifically state that they were made on personal knowledge
where statements in the affidavit clearly show that the affiant was speaking from personal
knowledge. Krueger v. Gol (App. l4 Dist. 1990) 787 S.W.2d 138. Mr. Kirby states that he
serves as the Clinical Education Manager, Program Director for the Parkland Bridge Transition
Program and a custodian of records for Parkland. Additionally, Mr. Kirby testified that he has
reviewed the documents attached to the to the affidavit, and the copies are true and correct
copies.
Further, Mr. Kirby had been designated as an expert in this matter and can rely upon
hearsay statements in providing his testimony. Texas Rule of Civil Procedure 195.5; Jurgens v.
Martin, 631 S.W.3d 385, 415 (Tex. App.—Eastland 2021, no pet).
As such, it is clear that Mr. Kirby has personal knowledge on which he has based his
affidavit testimony and Defendant Garcia’s motion to strike Paragraphs 4-10, 15, 16, 20, 23-27
and 35 based on lack personal knowledge should be denied.
II. MR. KIRBY’S AFFIDAVIT DOES NOT CONTAIN IMPROPER CONCLUSORY
STATEMENTS.
A “conclusory statement” in a summary judgment affidavit is one that does not provide
the underlying facts to support the conclusion. Winchek v. American Exp. Travel Related
Services C0., Inc. (App. 1 Dist. 2007) 232 S.W.3d 197. A summary judgment affidavit may be
found substantively defective when the absence of the referenced papers from the summary
judgment evidence leaves the affidavit conclusory. Paragon General Contractors, Inc. v. Larco
Const, Inc. (App. 5 Dist. 2007) 227 S.W.3d 876. However, in the affidavit being challenged, Mr.
Kirby references the supporting documentation on which his assessments were based, and those
documents are attached to the affidavit.
Additionally, statements that are made based on an affiant’s personal knowledge related
to their employment are not conclusory. See 8920 Corp. v. AliefAlamo Bank (App. 14 Dist.
1986) 722 S.W.2d 718; Green v. Industrial Specialty Contractors, Inc. (App. 1 Dist. 1999) l
S.W.3d 126; Robinson v. Bank One Nat. Ass 'n (App. 4 Dist. 2004) 2004 WL 28367.
Further, Mr. Kirby had been designated as an expert in this matter and can testify
regarding information obtained from others and compilations of documents in providing his
testimony. Texas Rule of Civil Procedure 195.5; Jurgens v. Martin, 631 S.W.3d 385, 415 (Tex.
App.—East1and 2021, no pet.).
Paragraphs 4, 5, 20 and 27 are based on Mr. Kirby’s personal knowledge gained though
his position at Parkland, as well as his review of the documents attached to his affidavit. As such,
they cannot be found to be conclusory.
III. DEFENDANT’S OBJECTIONS SHOULD BE OVERRULED AND HER
MOTION TO STRIKE SHOULD BE DENIED.
Based on the facts and legal authority provided above, Mr. Kirby’s affidavit testimony is
admissible evidence under Tex. R. CiV. P. 166a(f) and Tex. R. EVid. 602. Therefore Defendant’s
objections should be overruled and the Motion to Strike should be denied.
WHEREFORE PREMISES CONSIDERED, Dallas Count Hospital District d/b/a
Parkland Health respectfully requests that this Court:
l. Deny Defendant Garcia’s motion to strike in its entirety;
2. Overrule Defendant Garcia’s objections to the Kirby Affidavit; and
3. grant Parkland such further and other relief to which it is entitled.
Respectfully submitted,
THE TUREK LAW FIRM, PC
By: /s/ Douglas Turek
Douglas D. Turek
State Bar No. 00792882
dturek@tureklawf1rm.com
Emily Marr
State Bar No. 24102595
emarr@tureklawf1rm.com
9595 Six Pines Drive, Suite 8210
The Woodlands, Texas 77380
Telephone (281) 296-6920
Facsimile (281) 296-0733
ATTORNEYS FOR PLAINTIFF DALLAS
COUNTY HOSPITAL DISTRICT D/B/A
PARKLAND HEALTH
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above was served on each attorney of
record or party in accordance with the Texas Rules of Civil Procedure on this 27th day of
January, 2023.
Carmen Artaza Jerry J. Jarzombek
TREMAIN ARTAZA PLLC THE LAW OFFICE 0F JERRY JARZOMBEK, PLLC
4925 GreenVille Ave., Suite 200 6300 Ridglea Place., Suite 610
Dallas, Texas 75206 Fort Worth, Texas 761 16
Via Electronic Service Via Electronic Service
Michael J. Wagner James Bo Brown
ATTORNEY & COUNSELOR AT LAW ATTORNEY AT LAW
4110 Watersedge Ct., Suite 200 1909 Central Drive, Suite 301
Rowlett, Texas 75088 Bedford, TX 76021
Via Electronic Service Via Electronic Service
/s/ Douglas Turek
Douglas Turek
DTzEH/pam
httpsz/ltureklawfirm.sharepoinLcom/Shared Documents/OPERATIONS/CLIENTS/LITIGATION/PARKLAND - NURSE
RESIDENCY COLLECTIONS.2123.00/2022 NURSE
MATTERS/NURSE CONTRACT SUIT_3 (DALLAS).2l23.100/DEFENDANTS/GARCIA, DIANA.2123.103/MSJ/GARCIA'S MSJ/xResp_Motion to Suike Evidencedocx
January 27, 2023
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Patricia McCulloch on behalf of Douglas Turek
Bar No. 792882
pmcculloch@tureklawfirm.com
Envelope ID: 72222799
Status as of 1/27/2023 3:17 PM CST
Associated Case Party: DALLAS COUNTY HOSPITAL DISTRICT
Name BarNumber Email TimestampSubmitted Status
DOUGLAS TUREK dturek@tureklawfirm.com 1/27/2023 1:59:01 PM SENT
EMILY MARR emarr@tureklawfirm.com 1/27/2023 1:59:01 PM SENT
Associated Case Party: DIANA GARCIA
Name BarNumber Email TimestampSubmitted Status
Carmen Artaza carmen@tremainartaza.com 1/27/2023 1:59:01 PM SENT
Ashley Tremain ashley@tremainartaza.com 1/27/2023 1:59:01 PM SENT
Associated Case Party: ESMERALDA ORDONEZ
Name BarNumber Email Timestam pSubmitted Status
James Brown jbbimmigration@yahoo.com 1/27/2023 1:59:01 PM SENT
Associated Case Party: STEPHANIE SISK
Name BarNumber Email TimestampSubmitted Status
Admin Jarzombek 855texas@gmail.com 1/27/2023 1:59:01 PM SENT
Jerry Jarzombek jerryjj@airmail.net 1/27/2023 1:59:01 PM SENT
Associated Case Party: COURTNEY KERCHER
Name BarNumber Email TimestampSubmitted Status
Michael Wagner mjwagner@mjwagnerlaw.com 1/27/2023 1:59:01 PM SENT
Case Contacts
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Patricia McCulloch on behalf of Douglas Turek
Bar No. 792882
pmcculloch@tureklawfirm.com
Envelope ID: 72222799
Status as of 1/27/2023 3:17 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Patricia McCulloch pmcculloch@tureklawfirm.com 1/27/2023 1:59:01 PM SENT
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FILED 1/27/2023 1:59 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lafonda Sims DEPUTY CAUSE NO. DC-22-02879 DALLAS COUNTY HOSPITAL IN THE DISTRICT COURT DISTRICT d/b/a PARKLAND HEALTH, Plaintiff, DALLAS COUNTY, TEXAS MORGAN MCANELLY, VANESSA SANCHEZ, DIANA GARCIA, SYDNEY RUSSELL, SAMANTHA MCKEOWN, BRITTANY WASHINGTON, JACOB ROCHESTER, DORMEL THOMPSON, HANNAH JOHNSON, ESMERELDA ORDONEZ, STEPHANIE SISK, COURTNEY KERCHER, AND MEAGAN HLAVENKA, Defendants. 44TH JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANT DIANA GARCIA’S OBJECTIONS AND MOTION TO STRIKE Plaintiff Dallas County Hospital District d/b/a Parkland Health (“Parkland”) files this Response to Diana Garcia’s Objections to and Motion to Strike, Plaintiff’ s Summary Judgement Evidence and would respectfully show this Court the following: I. ALLEN KIRBY’S AFFIDAVIT MEETS THE REQUIREMENTS OF THE TEXAS RULES OF CIVIL PROCEDURE FOR PERSONAL KNOWLEDGE. Defendant Garcia first argues that Allen Kirby’s affidavit was not based on personal knowledge by blatantly misquoting his affidavit testimony. Mr. Kirby’s affidavit clearly states: “[t]he facts stated herein are based upon my personal knowledge, information I obtained from my predecessors and supervisors at Dallas County Hospital District d/b/a Parkland Health (“Parkland”), as well as my review of Parkland’s records.” The bolded portions of the quotation were entirely left out of Defendant Garcia’s recitation. The reality is that Mr. Kirby’s testimony is based on his personal knowledge, as well as the documents that Mr. Kirby authenticated, proved up under the business records exception to the hearsay rule, and included with his affidavit, as required by Tex. R. Civ. P. l66a(t) and Tex. R. EVid. 602. There is no admission by Mr. Kirby that his testimony is entirely based on improper hearsay. To the contrary, he states the opposite. Statements by an affiant that they have “personal knowledge” of facts stated in their affidavits and that they were “fully competent” to make the affidavits are not improper legal conclusions, and, thus, the affidavits were admissible as summary judgment evidence. Choctaw Properties, L.L. C. v. Aledo I.S.D. (App. 10 Dist. 2003) 127 S.W.3d 235. Despite Mr. Kirby stating that he was testifying from personal knowledge, summary judgment affidavits do not need to specifically state that they were made on personal knowledge where statements in the affidavit clearly show that the affiant was speaking from personal knowledge. Krueger v. Gol (App. l4 Dist. 1990) 787 S.W.2d 138. Mr. Kirby states that he serves as the Clinical Education Manager, Program Director for the Parkland Bridge Transition Program and a custodian of records for Parkland. Additionally, Mr. Kirby testified that he has reviewed the documents attached to the to the affidavit, and the copies are true and correct copies. Further, Mr. Kirby had been designated as an expert in this matter and can rely upon hearsay statements in providing his testimony. Texas Rule of Civil Procedure 195.5; Jurgens v. Martin, 631 S.W.3d 385, 415 (Tex. App.—Eastland 2021, no pet). As such, it is clear that Mr. Kirby has personal knowledge on which he has based his affidavit testimony and Defendant Garcia’s motion to strike Paragraphs 4-10, 15, 16, 20, 23-27 and 35 based on lack personal knowledge should be denied. II. MR. KIRBY’S AFFIDAVIT DOES NOT CONTAIN IMPROPER CONCLUSORY STATEMENTS. A “conclusory statement” in a summary judgment affidavit is one that does not provide the underlying facts to support the conclusion. Winchek v. American Exp. Travel Related Services C0., Inc. (App. 1 Dist. 2007) 232 S.W.3d 197. A summary judgment affidavit may be found substantively defective when the absence of the referenced papers from the summary judgment evidence leaves the affidavit conclusory. Paragon General Contractors, Inc. v. Larco Const, Inc. (App. 5 Dist. 2007) 227 S.W.3d 876. However, in the affidavit being challenged, Mr. Kirby references the supporting documentation on which his assessments were based, and those documents are attached to the affidavit. Additionally, statements that are made based on an affiant’s personal knowledge related to their employment are not conclusory. See 8920 Corp. v. AliefAlamo Bank (App. 14 Dist. 1986) 722 S.W.2d 718; Green v. Industrial Specialty Contractors, Inc. (App. 1 Dist. 1999) l S.W.3d 126; Robinson v. Bank One Nat. Ass 'n (App. 4 Dist. 2004) 2004 WL 28367. Further, Mr. Kirby had been designated as an expert in this matter and can testify regarding information obtained from others and compilations of documents in providing his testimony. Texas Rule of Civil Procedure 195.5; Jurgens v. Martin, 631 S.W.3d 385, 415 (Tex. App.—East1and 2021, no pet.). Paragraphs 4, 5, 20 and 27 are based on Mr. Kirby’s personal knowledge gained though his position at Parkland, as well as his review of the documents attached to his affidavit. As such, they cannot be found to be conclusory. III. DEFENDANT’S OBJECTIONS SHOULD BE OVERRULED AND HER MOTION TO STRIKE SHOULD BE DENIED. Based on the facts and legal authority provided above, Mr. Kirby’s affidavit testimony is admissible evidence under Tex. R. CiV. P. 166a(f) and Tex. R. EVid. 602. Therefore Defendant’s objections should be overruled and the Motion to Strike should be denied. WHEREFORE PREMISES CONSIDERED, Dallas Count Hospital District d/b/a Parkland Health respectfully requests that this Court: l. Deny Defendant Garcia’s motion to strike in its entirety; 2. Overrule Defendant Garcia’s objections to the Kirby Affidavit; and 3. grant Parkland such further and other relief to which it is entitled. Respectfully submitted, THE TUREK LAW FIRM, PC By: /s/ Douglas Turek Douglas D. Turek State Bar No. 00792882 dturek@tureklawf1rm.com Emily Marr State Bar No. 24102595 emarr@tureklawf1rm.com 9595 Six Pines Drive, Suite 8210 The Woodlands, Texas 77380 Telephone (281) 296-6920 Facsimile (281) 296-0733 ATTORNEYS FOR PLAINTIFF DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on this 27th day of January, 2023. Carmen Artaza Jerry J. Jarzombek TREMAIN ARTAZA PLLC THE LAW OFFICE 0F JERRY JARZOMBEK, PLLC 4925 GreenVille Ave., Suite 200 6300 Ridglea Place., Suite 610 Dallas, Texas 75206 Fort Worth, Texas 761 16 Via Electronic Service Via Electronic Service Michael J. Wagner James Bo Brown ATTORNEY & COUNSELOR AT LAW ATTORNEY AT LAW 4110 Watersedge Ct., Suite 200 1909 Central Drive, Suite 301 Rowlett, Texas 75088 Bedford, TX 76021 Via Electronic Service Via Electronic Service /s/ Douglas Turek Douglas Turek DTzEH/pam httpsz/ltureklawfirm.sharepoinLcom/Shared Documents/OPERATIONS/CLIENTS/LITIGATION/PARKLAND - NURSE RESIDENCY COLLECTIONS.2123.00/2022 NURSE MATTERS/NURSE CONTRACT SUIT_3 (DALLAS).2l23.100/DEFENDANTS/GARCIA, DIANA.2123.103/MSJ/GARCIA'S MSJ/xResp_Motion to Suike Evidencedocx January 27, 2023 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Patricia McCulloch on behalf of Douglas Turek Bar No. 792882 pmcculloch@tureklawfirm.com Envelope ID: 72222799 Status as of 1/27/2023 3:17 PM CST Associated Case Party: DALLAS COUNTY HOSPITAL DISTRICT Name BarNumber Email TimestampSubmitted Status DOUGLAS TUREK dturek@tureklawfirm.com 1/27/2023 1:59:01 PM SENT EMILY MARR emarr@tureklawfirm.com 1/27/2023 1:59:01 PM SENT Associated Case Party: DIANA GARCIA Name BarNumber Email TimestampSubmitted Status Carmen Artaza carmen@tremainartaza.com 1/27/2023 1:59:01 PM SENT Ashley Tremain ashley@tremainartaza.com 1/27/2023 1:59:01 PM SENT Associated Case Party: ESMERALDA ORDONEZ Name BarNumber Email Timestam pSubmitted Status James Brown jbbimmigration@yahoo.com 1/27/2023 1:59:01 PM SENT Associated Case Party: STEPHANIE SISK Name BarNumber Email TimestampSubmitted Status Admin Jarzombek 855texas@gmail.com 1/27/2023 1:59:01 PM SENT Jerry Jarzombek jerryjj@airmail.net 1/27/2023 1:59:01 PM SENT Associated Case Party: COURTNEY KERCHER Name BarNumber Email TimestampSubmitted Status Michael Wagner mjwagner@mjwagnerlaw.com 1/27/2023 1:59:01 PM SENT Case Contacts Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Patricia McCulloch on behalf of Douglas Turek Bar No. 792882 pmcculloch@tureklawfirm.com Envelope ID: 72222799 Status as of 1/27/2023 3:17 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Patricia McCulloch pmcculloch@tureklawfirm.com 1/27/2023 1:59:01 PM SENT