Albert et al v. United States Department of the Army et al

Filing 80

REPORT AND RECOMMENDATIONS re 57 Motion to Amend Complaint, filed by Phylis Albert, Frankie D. Albert, be DISMISSED WITHTOUT PREJUDICE; 73 Motion for Summary Judgment, filed by Wounded Warrior Project, Inc. be DENIED; GRANTING 76 MOTION for Leave to File Plaintiffs' Motion for Leave to File Sur-Reply filed by Phylis Albert, Frankie D. Albert. Signed by Judge Elizabeth S. Chestney. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FRANKIE D. ALBERT, AS PARENTS
AND NEXT FRIEND OF JANE DOE, A
MINOR; AND PHYLIS ALBERT, AS
PARENTS AND NEXT FRIEND OF
JANE DOE, A MINOR;
Plaintiffs,
vs.
UNITED STATES DEPARTMENT OF
THE ARMY, WOUNDED WARRIOR
PROJECT, INC.,
Defendants.

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SA-17-CV-00703-JKP

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Jason K. Pulliam:
This Report and Recommendation concerns Plaintiffs’ Reurged Motion for Leave to File
Third Amended Complaint with Evidence in Support [#57] and Defendant Wounded Warrior
Project, Inc.’s Motion for Summary Judgment [#73]. Also before the Court are the following
responses and replies to the motions: United States’ Opposition to Motion for Leave to File
Third Amended Complaint [#67]; Plaintiffs’ Reply to Defendant United States’ Opposition to
Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint [#69]; Plaintiffs’
Response to Defendant Wounded Warrior Project, Inc.’s Motion for Summary Judgment [#74];
Defendant Wounded Warrior Project, Inc.’s Reply to Plaintiffs’ Response to Defendant’s Motion
for Summary Judgment [#75]. Plaintiffs have also moved to file a Sur-Reply to Defendant
Wounded Warrior Project, Inc.’s response [#76]. The undersigned will grant the motion and has
considered the sur-reply in making its recommendation to the District Court.

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All dispositive pretrial matters in this case have been referred to the undersigned for
disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#58]. The
undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, it is recommended that Plaintiffs’ motion for leave to amend
[#57] be dismissed without prejudice to being renewed at trial on a full evidentiary record and
the motion for summary judgment [#73] filed by Defendant Wounded Warrior, Inc. be denied.
I. Background
This case arises out of personal injuries sustained by Shyanna Albert on November 9,
2013, when she was 13 years old. According to the Second Amended Complaint before the
Court, Shyanna was injured while riding in a U.S. Army vehicle during a Veteran’s Day Parade
sponsored by the Wounded Warrior Project, Inc. (“WWP”) when a steel bar fell on her head and
knocked her unconscious. (Second Am. Compl. [#54] at ¶¶ 5–7.) Shyanna’s parents, Frankie
and Phylis, filed this action as parents and next friends of Shyanna, then a minor, against
Defendants United States Department of the Army (“U.S. Army”) and WWP, alleging that their
negligence caused Shyanna’s injuries. (Id. at ¶¶ 8–12.)
Plaintiffs allege that Defendants worked together in providing the truck as a parade
vehicle and were negligent in inviting Shyanna and her family to ride in the parade in an Army
truck with an unsecured heavy bar above the heads of the passengers. (Id. at ¶¶ 6–8.) According
to Plaintiffs, the steel bar at issue was a part of a frame intended to support a canvas-type cover
for the sides and top of the truck bed. (Id. at ¶ 6.) The canvas cover had been removed for the
parade; the frame could have been removed but was not. (Id.) The force of the impact of the
falling bar allegedly caused Shyanna to sustain severe and permanent head injuries. (Id. at ¶ 5.)

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Plaintiffs’ claim against the U.S. Army arises under the Federal Tort Claims Act, 28
U.S.C. § 2671, et seq. (Id. at ¶ 1.) On June 12, 2015, Plaintiffs filed an administrative claim
against the U.S. Army seeking $40,000 in damages. (Second Am. Compl. [#54] at ¶ 13; Admin.
Cl. [#41-1].) Two years later, Plaintiffs filed their Original Complaint, alleging that Shyanna’s
injuries were much more severe than originally known. (Orig. Compl. [#1] at ¶ 13.) After
Plaintiffs filed a First Amended Complaint as a matter of right, Plaintiffs moved for leave to file
a Second Amended Complaint to increase Shaynna’s damages as to the FTCA claim from
$40,000 to $3.75 million, among other amendments. (Mtn. for Leave [#39].) The District Court
granted the motion for leave as to various unopposed amendments, which included the addition
of Shyanna as a Plaintiff because she had reached the age of majority. (Order [#51].) The
District Court denied the motion for leave as to the increased damages, but the denial was
without prejudice to refiling the motion with evidence to support the amendment. (Id.)
Plaintiffs filed their Second Amended Complaint and renewed motion for leave to amend
their pleadings on the same day.

WWP subsequently moved for summary judgment on

Plaintiffs’ claim of negligence. The motions are ripe for the Court’s review.
II. Motion for Leave to Amend
Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint [#57] again asks
the Court for leave to file an amended pleading that increases the damages requested in this case
from the $40,000 contained in the FTCA administrative claim to $3.75 million.
The FTCA prohibits the filing of any civil action “in excess of the amount of the claim
presented to the federal agency, except where the increased amount is based upon newly
discovered evidence not reasonably discoverable at the time of presenting the claim to the federal
agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”

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28 U.S.C. § 2675(b). Accordingly, to obtain leave to amend their pleadings, Plaintiffs must meet
two standards. They must satisfy Rule 15 of the Federal Rule of Civil Procedure, which governs
the amendment of pleadings, and they must fit their case within the exception to the FTCA’s
prohibition set forth in Section 2675(b). Because the statutory standard is more stringent than
Rule 15, the Court first considers this standard.
The Fifth Circuit has adopted the worst-case prognosis test in evaluating whether a
plaintiff’s claim of increased damages falls within the statutory exception to the FTCA’s
damages cap. See Low v. United States, 795 F.2d 466 (5th Cir. 1986) (reversing judgment in part
and reducing damage award from $3.5 million to the $1.275 requested in plaintiff’s
administrative claim).

“Requiring the plaintiff to guard against a worst-case scenario in

preparing his claim gives the Government full notice of its maximum potential liability in the
case.” Lebron v. United States, 279 F.3d 321, 330 (5th Cir. 2002).
According to Low, the question of whether damages can be increased under Section
2675(b) presents a twofold issue. 795 F.2d at 470. A court must first subjectively evaluate
“whether the specific injuries were known at the time the administrative complaint was made.”
Dickerson ex re. Dickerson v. United States, 280 F.3d 470, 476 (5th Cir. 2002). The court then
must objectively evaluate “whether the plaintiff could have made out its worst-case scenario
based on the basic severity of the injuries that were known” at that time. Id. “[N]ew information
cannot surmount the bar created by § 2675(b) if the information merely concerns the precision
with which the nature, extent, or duration of a claimant’s condition can be known.” Lebron, 279
F.3d at 330. There is extensive case law interpreting these binding precedents, which was
surveyed in the District Court’s extensive 50-page order denying without prejudice Plaintiffs’
original motion for leave to amend [#51].

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As previously stated, the basis for the District Court denial of Plaintiff’s original motion
was a lack of evidence to support the requested amendment. Attached to Plaintiffs’ reurged
motion are hundreds of pages of affidavits, school and medical records, and other evidence, by
which Plaintiffs seek to convince the Court that the severity of Shyanna’s brain injury could not
have been known at the time of the filing of their administrative claim in 2014. Plaintiffs
contend that their evidence demonstrates that Shyanna’s school performance and attendance
declined significantly after June 2015 when the FTCA administrative claim was filed due to the
unexpected worsening of her medical condition. Plaintiffs further argue that the state of science
on traumatic brain injuries made Shyanna’s future problems associated with her injuries
unforeseeable in June 2015 when she filed her administrative claim. The U.S. Army opposes the
motion, arguing that all of Shyanna’s injuries were present, known, and documented when she
filed her administrative claim and urging the Court to deny the amendment.
The two-prong evaluation of Shyanna’s known injuries and her worst-case prognosis at
the time of the administrative complaint is necessarily a fact-sensitive inquiry. For this reason,
some courts have concluded that a motion for leave to amend to increase FTCA damages is most
appropriately considered at trial upon the development of a full evidentiary record and the
presentation of live testimony, particularly where the resolution of the motion hinges on disputed
facts, as here. See, e.g., Troilo v. Michner, No. CV 13-2012 (RMB/AMD), 2015 WL 12839014,
at *5 (D.N.J. Nov. 17, 2015); Zurba v. United States, 247 F. Supp. 2d 951, 957 (N.D. Ill. 2001);
Michels v. United States, 815 F. Supp. 1244, 1247 (S.D. Iowa 1993). Based on the record in this
case, this also appears to be the intent of the District Court, which explained—in permitting
Plaintiffs to file their renewed motion for leave—that “[w]hether or not the exceptions will apply
is reserved for resolution through summary judgment or bench trial at a later date if the

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government continues its opposition” to Plaintiffs’ amendment.

(Order [#53] at 2.)

The

undersigned agrees with the District Court that Plaintiffs’ motion should be raised at trial after all
of the evidence of Shyanna’s injuries has been presented to the factfinder, particularly in light of
the fact that this case will be tried as a bench trial.
Plaintiffs’ evidence indeed demonstrates a worsening of Shyanna’s symptoms since
2015. At the time Shyanna filed her administrative claim in 2015, she had been diagnosed with a
mild neurocognitive disorder due to changes in her concentration and attention, memory deficits,
issues with word retrieval, episodes of disorientation, increased fatigue, and difficulty in school.
(Med. Records [#57-4] at 44–46.) After she filed her claim, beginning in 2016, Shyanna began
experiencing nonepileptic seizures involving involuntary body movement, spasms, and memory
loss. (Med. Records [#57-3] at 69, 79.) Because the seizures could not be attributed to any
specific neurological activity, she was diagnosed with a conversion disorder, meaning the
seizures were related to psychological not physical issues. (Id. at 69, 79–80, 146.) By 2017,
Shyanna had developed severe anxiety and depression, fatigue and sleeplessness, nightmares,
social challenges, the inability to participate in previous activities such as sports, academic
issues, and had failed the twelfth grade. (Id. at 143.)
Several factors present in this case complicate the evaluation of whether the extent of
Shyanna’s injuries were known at the time of the filing of her administrative claim and make
Plaintiffs’ request for amendment ill-suited for a preliminary ruling. First, Shyanna’s claimed
injuries are neurocognitive and psychological, as opposed to physical, in nature. Her medical
records indicate that she has never had an abnormal neurological exam, CT scan, MRI, or EEG
of the brain. (Id. at 65, 91.) Yet in the intervening years since her brain injury, the records also
demonstrate that she has suffered from an array of emotional, psychological, and neurocognitive

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issues. The injuries are therefore to a certain extent invisible and amorphous, making them more
difficult to diagnose and to separate from other possible contributing causes, and making this
case readily distinguishable from many cases in which the extent of neurological damage is
much more defined and identifiable from the moment of injury. Cf., e.g., Low, 795 F.2d at 468
(infant diagnosed immediately post-birth with depressed skull fracture, cerebral palsy, seizure
disorder, blindness, deafness, and mental retardation); Dickerson, 280 F.3d at 473–74 (majority
of infant’s brain tissue destroyed from traumatic birth, resulting in identified high risk for spastic
quadriplegia, cerebral palsy, seizures, visual impairment, and mental retardation).
Additionally, the head injury underlying this suit was not the first or last head injury
sustained by Shyanna during the relevant time period.

The medical records attached to

Plaintiffs’ motion establish that Shyanna sustained her first concussion one week prior to the
Veteran’s Day parade while playing basketball when she hit her head on the floorboard of the
gym and briefly lost consciousness. (Med. Records [#57-3] at 62.) Approximately six months
after Shyanna filed her administrative claim, in January 2016, she sustained a third injury when
she fell while riding a skateboard and injured her right knee and hip. (Med. Records [#41-3] at
1–2.) Although a concussion was not confirmed, Shyanna’s medical records indicate that “she
fell forward onto outstretched hands, hit her head on the pavement and scraped her knee.” (Id.)
In August 2017, Shyanna fell off her skateboard again, and this time was diagnosed in the
emergency room with a “non-displaced right clavicle shaft fracture and concussion.” (Id. at 6–
7.) The factfinder will have to rely on the testimony of various fact and expert witnesses to make
an ultimate determination as to what part of Shyanna’s claimed injuries, if any, were caused by
the 2013 incident at the Veteran’s Day parade. Because a fact issue remains as to causation, the
Court is unable to conclusively determine at this time whether the extent of Shyanna’s symptoms

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fall within the worst-case prognosis of her head injury at the time of the filing of her
administrative claim.
Finally, the conflicting opinions of the parties’ designated expert witnesses demonstrate
that a wide range of theories exist as to the potential impact of concussive injuries, especially
repeated injuries like those sustained by Shyanna.

Plaintiffs’ designated experts, treating

neuropsychologist Dr. Robert Lowry and examining neuropsychologist Dr. Sean Connolly, both
believe that Shyanna suffered a significant “second-impact” injury to the brain in 2013 when the
metal rod knocked her unconscious at the parade and that this subsequent injury is the primary
cause of her lasting neuropsychological issues. (Lowry Report [#57-4] at 23, 26, 29; Connolly
Report [#57-4] at 46, 60–62.) The U.S. Army’s designated expert, neuropsychologist Dr. Kyle
Boone, opines that Shyanna “would have no cognitive or psychiatric residuals form the head
injuries/equivocal concussions in November of 2013” and that she is suffering from a
somatoform disorder or has been deliberately feigning symptoms. (Boone Expert Report [#57-5]
at 19.) The factfinder will be tasked with reconciling these opposing viewpoints at trial, and the
resolution thereof will necessarily inform the evaluation of whether Plaintiffs should have known
of the extent of Shyanna’s injuries based on the 2015 diagnosis of a mild neurocognitive disorder
due to the two head injuries she had sustained at that time.
The undersigned notes that in its response to Plaintiffs’ motion the United States requests
an evidentiary hearing to resolve the motion and has asked for the right to designate an additional
expert with a supplemental opinion no less than 14 days before the hearing. As previously
stated, the undersigned will not hold a hearing on Plaintiffs’ motion but rather will recommend
that the District Court resolve Plaintiffs’ motion in the context of the bench trial in this case. To
require the parties to separately litigate this issue in a full evidentiary hearing would be a waste

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of this Court’s resources given that the evidence underlying Plaintiff’s motion supporting her
argument to amend is the very same evidence that Plaintiffs will present at trial to prove
causation and damages. If the United States still believes it is entitled to a supplemental expert at
trial, it should file a separate motion requesting the same and explaining why it did not designate
the expert within the deadlines imposed by the Court’s scheduling order. Nothing prevents Dr.
Boone, the Government’s current designated expert, from issuing a supplemental report in
response to the opinions of Drs. Lowry and Connolly.
III. Motion for Summary Judgment
By its motion for summary judgment, Defendant Wounded Warrior Project (“WWP”)
asks the Court to grant it summary judgment on Plaintiffs’ claims of negligence because there is
no evidence in the record that WWP proximately caused Plaintiffs’ injuries. Because a fact issue
remains on causation, the Court should deny the motion.
A.

Legal Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure

only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the initial burden of “informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at

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323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish
the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th
Cir. 1995). The non-movant must respond to the motion by setting forth particular facts
indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering
depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable
to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
B.

Summary Judgment Record
The summary judgment record contains evidence of the following facts, which are

undisputed unless otherwise noted. WWP is a nonprofit corporation organized under the laws of
Virginia and registered in Texas to provide programs and services to wounded service members
and veterans. (Corporate Docs. [#73-1] at 1–7.) In 2013, WWP applied to participate in San
Antonio’s Veterans’ Day Parade. (Arredondo Dep. [#73-3] at 15:13–16:3.) The application
described the participation of a “Trailer with Wound Warriors” with individuals both riding in
and walking alongside the vehicle.

(Id.)

Juan Arredondo, Outreach Specialist for WWP,

coordinated the use of a light-weight tactical U.S. Army vehicle for the parade. (Id. at 23:2–20.)
Mr. Arredondo’s ex-wife Lieutenant Arredondo, a commander in the U.S. Army Reserves,
arranged for the signing, borrowing, and dispatch of the vehicle from the U.S. Army. (Orozco
Dep. [#73-3] at 41:4–9.) Sergeant Orozco, who was at the time was a member of the U.S. Army
Reserves, and two other soldiers were paid to drive the truck from Fort Sam Houston to
downtown San Antonio for use in the parade and to operate the vehicle at the parade.

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(Arredondo Dep. [#73-3] at 28:10–29:1; Orozco Dep. [#73-4] at 13:21–25, 16:5–18.) The
soldiers were under the command of Lieutenant Arredondo on the day of the parade. (Arredondo
Dep. [#75-2] at 26:14–16.) Sergeant Orozco was told that a number of Wounded Warriors and
their families would be walking in front of or behind the truck throughout the parade. (Orozco
Dep. [#73-4] at 12:5–14.) Mr. Arredondo and Mr. Horton were the two representatives of WWP
present on the day of the event when the soldiers and truck arrived. (Arredondo Dep. [#73-3] at
28:4–9.)
According to Sergeant Orozco, when he arrived with the truck, Mr. Arredondo changed
the plan and informed him that the Wounded Warriors and their families would ride in the back
of the truck instead of walking alongside it in the parade. (Orozco Dep. [#73-4] at 17:14–25,
18:12–17.) Sergeant Orozco maintains that he objected to the new plan due to the height and age
of the vehicle, the lack of seatbelts, and the potential for injury, but Mr. Arredondo loaded the
families into the truck over his objection. (Id. at 17:18–25, 19:1–20.) Shyanna and her family
were among the participants loaded into the truck.
According to Mr. Arredondo, he asked Sergeant Orozco and the soldiers to remove the
canvas cover on the vehicle due to the heat that day and to improve visibility for those riding on
the float during the parade and parade spectators. (Arredondo Dep. [#73-3] at 29:2–25; Orozco
Dep. [#73-4] at 20:4–9.) Sergeant Orozco testified in his deposition that he also verbally
objected to this plan because without the tarp, the frame would be loose and unstable, but Mr.
Arredondo chose to remove the cover anyway. (Orozco Dep. [#73-4] at 20:10–22.) There is a
dispute regarding who actually removed the cover. Mr. Arredondo claims that neither Mr.
Arredondo nor Mr. Horton assisted with the removal of the cover. (Arredondo Dep. [#73-3] at

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29:19–25.) Sergeant Orozco claims that he did not remove the cover either, and it was members
of WWP who did so. (Orozco Dep. [#73-4] at 22:1–13, 59:19–22.)
After the cover was removed, the metal frame holding the cover was exposed on the top
of the vehicle. According to Mr. Arredondo, he asked Sergeant Orozco if he intended to remove
the bars, and Orozco told him, “No.

It will give the warriors something to hold onto.”

(Arredondo Dep. [#73-3] at 31:5–10.)

Sergeant Orozco in contrast testified that he was

concerned about the safety of leaving the frame on the vehicle, as it typically would be removed
with the cover, and warned the participants to “be careful because [it] is a flimsy frame.”
(Orozco Dep. [#73-4] at 66:3–5.) It is undisputed, however, that neither Mr. Arredondo nor
Sergeant Orozco directed anyone to remove the metal frame bars beneath the canvas.
(Arredondo Dep. [#73-3] at 30:25–31:4; Orozco Dep. [#73-4] at 65:20–25.) According to
Sergeant Orozco, it would have been futile to do so anyway because Mr. Arredondo was not
listening to him anymore at this point. (Orozco Dep. [#73-4] at 65:17–22.) Sergeant Orozco
described Mr. Arredondo as “delegating everything” and “leading everything” regarding the
Wounded Warrior float throughout the event. (Id. at 33:13–16.) Shyanna also characterized the
chain of command on the day of the event this way, stating that Arredondo and Horton were
“directing National Guard or Army personnel” and that they told Army employees where to
place the vehicle before the parade started and provided other directions to them and the
passengers. (Shyanna Interog. Resps. [#73-5] at 5, 8.)
Shortly thereafter, the accident occurred, though it is unclear what actually caused the bar
to come loose, fall, and hit Shaynna in the head.

According to Shyanna, the WWP

representatives told the soldiers to move the truck; when it moved, it began vibrating, and one of
the bars of the metal frame became loose, fell, and hit Shyanna in the head, knocking her

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unconscious. (Orozco Dep. [#73-4] at 24:3–11, 24:22–25:11; F. Albert Dep. [#74-4] at 40:5–23;
Shyanna Interrog. Resps. [#73-5] at 5.) Sergeant Orozco posited that it could have been the
closing and rattling of the doors of the vehicle by the soldiers that caused the bar to fall off.
(Orozco Dep. [#73-4] at 34:5–9.)
Mr. Arredondo and Horton were not present at the precise time the bar fell onto
Shyanna’s head because they were helping other Wounded Warriors find their way to the parade.
(Arredondo Dep. [#73-3] at 35:15–22, 37:21–38:2.)

In response to the accident, Sergeant

Orozco jumped off the vehicle, directed someone to call EMS, and waited with Shyanna for the
emergency responders. (Orozco Dep. [#73-4] at 24:8–12.) Once EMS arrived, the entire frame
was removed from the truck, and the parade continued. (Id. at 24:12–16, 26:7–13.) Sergeant
Orozco testified that the WWP representatives told him they were going to take care of
everything with respect to the accident from there. (Id. at 69:7–10.) Mr. Arredondo prepared an
incident report regarding the accident on April 2, 2014, approximately six months later, to
submit to WWP’s primary office and its legal team. (Arredondo Dep. [#73-3] at 39:12–40:4,
42:6–14.) Neither Lt. Arredondo or Sergeant Orozco took any further action. (Orozco Dep.
[#73-4] at 69:7–10.)
C.

Analysis
WWP contends it is entitled to summary judgment on Plaintiffs’ claim of negligence

because there is no evidence that the acts of WWP caused Shyanna’s injuries. To prevail on
their negligence claims against WWP, Plaintiffs must prove the following: (1) WWP had a duty
to Shyanna; (2) WWP breached that duty;1 and (3) this breach proximately caused Shyanna’s

1

Although WWP also argues in its motion that there is no evidence that WWP owed
Shyanna a duty of reasonable care and engaged in any acts breaching that duty, these arguments
are not developed separate and apart from WWP’s challenge of proximate causation, which is
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injuries. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
Plaintiffs allege that WWP was negligent in failing to secure the metal bar; failing to remove the
metal frame at the time of the removal of the canvas cover; and failing to protect Shyanna
against an unreasonable risk of harm. (Shyanna Interog. Resps. [#73-5].) WWP argues that
because Plaintiffs’ evidence does not prove exactly what caused the bar to fall, there is no
genuine issue of material fact as to causation. Because the U.S. Army owned, operated, and
staged the vehicle, as well as its frame and canvas, WWP maintains it should be awarded
summary judgment and absolved of any possible liability for Shyanna’s injuries at this stage in
the proceedings. The undersigned disagrees.
Proximate cause consists of foreseeability and cause in fact. D. Houston, Inc. v. Love, 92
S.W.3d 450, 454 (Tex. 2002). Foreseeability inquires whether a person of ordinary intelligence
would have anticipated the danger his act created. See S.W. Key Program, Inc. v. Gil-Perez, 81
S.W.3d 269, 274 (Tex. 2002). As acknowledged by WWP in its motion, “cause in fact” is
“established when the act or omission was a substantial factor in bringing about the injuries, and
without it, the harm would not have occurred.” IHS Cedars Treatment Ctr. of DeSoto, Inc. v.
Mason, 143 S.W.3d 794, 799 (Tex. 2004). Under Texas law, there may be more than one
proximate cause of an event or injury. In re Air Crash at Dallas/Fort Worth Airport on Aug. 2,
1985, 919 F.2d 1079, 1086–87 (5th Cir. 1991).
The summary judgment evidence, viewed in the light most favorable to Plaintiffs
establishes that WWP requested the use of the U.S. Army vehicle for its float in the San Antonio
the primary basis of WWP’s motion. In any event, “[u]nder the common law, one person owes
another the duty to act as a reasonably prudent person would act under the same or similar
circumstances regarding any reasonably foreseeable risk.” Kelly v. Brown, 260 S.W.3d 212, 218
(Tex. App.—Dallas 2008, no pet.) (citing Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.
1984)). Accordingly, WWP owed a duty of reasonable care to the families it invited to
participate in the Veterans’ Day Parade.
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Veterans’ Day Parade; Mr. Arredondo, in representing WWP, directed the participants, U.S.
Army soldiers, and the vehicle on the morning of the parade; Mr. Arredondo changed the plan at
the last minute and ordered Wounded Warriors and their families, including children, to ride on
top of the vehicle over the protestations of Sergeant Orozco; Mr. Arredondo directed the removal
of the canvas cover from the vehicle’s frame and physically removed the cover himself over the
warnings of Sergeant Orozco; and immediately thereafter the frame loosened and a bar fell on
Shyanna’s head, knocking her unconscious. (Arredondo Dep. [#73-3] at 23:2–20, 29:2–25;
Orozco Dep. [#73-4] at 17:14–25, 18:12–17, 19:1–20, 20:4–22, 22:1–13, 33:13–16, 59:19–22,
66:3–5; Shyanna Interog. Resps. [#73-5] at 5, 8.) WWP attempts to argue that these acts of
WWP do not raise a fact issue as to the proximate cause of Shyanna’s injury because they are too
attenuated from the injury. The undersigned disagrees.
The Texas cases cited by WWP illustrating speculative causation involved injuries far
more attenuated from the acts of the defendants than the closely linked acts of WWP and
Shyanna’s injury. For example, Marthon Corp. v. Pitzner, one of the cases cited by WWP in its
reply brief, involved allegations of premises defects as a cause for the injuries sustained by an air
conditioning repairman who fell from the roof of a building occupied by the defendant that was
not compliant with Dallas city building and mechanical codes. 106 S.W.3d 724, 725–26 (Tex.
2003). The Texas Supreme Court reversed the court of appeals’ judgment affirming a jury
verdict in the repairman’s favor due to legally insufficient evidence to support a finding of
proximate causation. Id. at 726. The repairman’s expert posited that the repairman sustained an
electrical shock because the air conditioning units had been shut off inside the building and
therefore the repairman “reached into the access panel, came into contact with a high-voltage
wire, was shocked, stumbled back, and fell off of the building.” Id. at 729. Yet there was no

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proof or corroboration of the first premise introduced at trial—that the units had been shut off
inside the building. Id. Under these circumstances, all of the expert’s opinions were based on
speculation and only slight circumstantial evidence, which on its own was insufficient evidence
of causation. Id.
The factfinder is not asked to engage in this degree of speculation here, where the
evidence (resolved in Plaintiffs’ favor) establishes that certain acts were taken by Arredondo on
behalf of WWP; that these acts involved the alteration of the canvas cover and frame above
Shyanna’s head; and that directly following these acts, the frame came loose and injured
Shyanna. This case does not involve remote or speculative cause. The source of Shyanna’s
injury—a falling metal rod—is undisputed. There is no significant temporal distance between
the removal of the canvas cover from the float vehicle and the loosening of the metal frame. All
of the allegedly negligent acts in this case were observed by witnesses who will provide
testimony at trial. Accordingly, the facts, if resolved in Plaintiffs’ favor, are sufficient to support
a finding of proximate causation. See Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849–50
(Tex. 1939) (concluding evidence was sufficient to establish causation in negligence action
where defendants placed six-gallon oil can on side of truck without properly securing can; the
can came loose; and top of can struck plaintiff in the head when it fell off the truck).
Finally, the Court need not make a determination of Plaintiffs’ assertion in their response
that the doctrine of res ipsa loquitor applies to this case to resolve WWP’s motion for summary
judgment. To establish a claim by res ipsa loquitur, a plaintiff must prove (1) an accident of this
character does not ordinarily occur in the absence of negligence, and (2) the instrument that
caused the accident was under the exclusive management and control of the defendant.
Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982). Both factors must be present for

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the factfinder to infer that the defendant was negligent. See Bond v. Otis Elevator Co., 388
S.W.2d 681, 686 (Tex. 1965); Sanders v. Naes Cent., Inc., 498 S.W.3d 256, 258 (Tex. App.—
Houston [1st Dist.] 2016, no pet.). Plaintiffs have not moved for summary judgment on their
negligence claim based on res ispa loquitor, but may ask for a jury instruction to that effect at
trial. The Court only finds today that there is sufficient evidence of proximate causation to
survive summary judgment.
IV. Conclusion and Recommendation
Having considered Plaintiffs’ motion for leave to amend, the responsive filings, the
evidentiary record, and the governing case law, the undersigned recommends that Plaintiffs’
Reurged Motion for Leave to File Third Amended Complaint with Evidence in Support [#57] be
DISMISSED WITHOUT PREJUDICE to raising at trial on a full evidentiary record.
Having considered Defendant Wounded Warrior Project’s motion for summary
judgment, the response and reply thereto, the summary judgment record, and governing law, the
undersigned recommends that Defendant Wounded Warrior Project, Inc.’s Motion for Summary
Judgment [#73] be DENIED.
IT IS ALSO ORDERED that Plaintiffs’ Motion for Leave to File Sur-Reply [#76] is
GRANTED. The Clerk is directed to docket Plaintiffs’ Sur-Reply [#76 at 4–8].
V. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is

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modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the clerk of the court, and serve the objections on all other parties. A party
filing objections must specifically identify those findings, conclusions or recommendations to
which objections are being made and the basis for such objections; the district court need not
consider frivolous, conclusive or general objections. A party’s failure to file written objections
to the proposed findings, conclusions and recommendations contained in this report shall bar the
party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52
(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to
file timely written objections to the proposed findings, conclusions and recommendations
contained in this report and recommendation shall bar the aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 10th day of September, 2019.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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