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THE ESTATE OF LAVERNE BURRELL, VS CYNTHIA PITRE. ETERNAL |
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CAUSE NO. E-168,700 IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 172ND JUDICIAL DISTRICT COURT FILED SEPT 22, 2003 |
The plaintiffs, the Estate of Laverne Burrell, by and through its Administrator, Duane Burrell, Duane Burrell, Individually, Diane Hampton, and Lindell Burrell, file this Seventh Amended Petition complaining of the following defendants: Cynthia Pitre, Eternal Health, Inc. d/b/a Years to Your Life Health Centers, Jimmy John Girouard, Colon Therapeutics, Inc.. Alice Coudrain, Tiller Mind and Body, Inc., the International Association for Colon Hydrotherapy, Candace L. Stowers, Colon Therapeutics Research Institute, Atlantis Plastics Company, and PFI Molding, Inc. For causes of action, the plaintiffs respectfully show the following.
A. Plaintiffs:
Duane Burrell, Diane Hampton, and Lindell Burrell are the surviving adult children of Laverne Burrell.
Duane Burrell, as the Administrator of the Estate of LavernJ Burrell, brings survival causes of action on behalf of the Estate of Laverne Burrell.
Defendants:
This is a wrongful death and survival case filed pursuant to § 71.001 et seq. of the Texas Civil Practice & Remedies Code. It is brought by the Estate of Laverne Burrell and her three surviving children.
This lawsuit is also based on violations of the Texas Deceptive Trade Practices Consumer Protection Act ("DTPA"), as set forth in Chapter 17 of the Texas Business & Commerce Code, and products liability law.
Venue is proper in Jefferson County, Texas because Jimmy John Girouard resides in Jefferson County, Texas, and because his company, Colon Therapeutics, Inc., is located in Jefferson County, Texas.
Venue is also proper in Jefferson County, Texas because a substantial part the events or omissions giving rise to this lawsuit occurred in Jefferson County, Texas.
Damages exceed the Court's minimum jurisdictional limits.
On August 14, 2002, Laverne Burrell died from complications of a punctured colon. Ms. Burrell's colon was punctured on April 20, 2002 when she received a "colonic" at Years to Your Life Health Centers. Ms. Burrell was in immediate severe pain, and she died a slow and painful death over the next 116 days.
On April 20, 2002, Ms. Burrell was an active 72-year old woman who had never had a "colonic" before. The procedure involved serious health risks, including the risk of death, and these risks were not disclosed to Ms. Burrell. In addition, no one told Ms. Burrell that "colonics" do not provide any medical benefits.
In addition, the "colonic" table and rectal nozzle that were used to administer the colonic to Ms. Burrell were prescription medical devices, which could only be possessed by, and used on the order of, a licensed physician. No one at Years to Your Life Health Centers had any medical training, and no one was a licensed healthcare professional. These facts were also not disclosed to Ms. Burrell.
When Laverne Burrell arrived at Years to Your Life Health Centers, Candace L. Stowers, an employee, took Ms. Burrell into a room where she was shown a video about proper nutrition. The video had nothing to do with the colonic procedure that Ms. Burrell was about to receive. When the video was over, Candace L. Stowers took Ms. Burrell into a second room which contained an inclined colon irrigation table. Ms. Burrell was briefly told how to administer the procedure to herself, which included disrobing from the waist down, climbing up on the table, and sliding down on the table until a plastic tube located in the middle of the table was pushed into her rectum. Ms. Burrell was told to then press a button which would start the flow of water into her colon. Ms. Burrell was left to do this alone.
At no time did anyone tell Laveme Burrell that colonics involve serious health risks, including death.
Ms. Burrell started the process as she had been instructed by Candace Stowers, but began suffering severe abdominal pain almost immediately. Unbeknownst to her, the plastic water nozzle from the irrigation table had punctured her colon, which began leaking and poisoning her internal organs. No one from Years to Your Life Health Centers offered Ms. Burrell assistance or called an ambulance.
Ms. Burrell's condition worsened, and she was hospitalized within two or three hours of receiving the colonic. That night, emergency surgery was required to resect Ms. Burrell's colon, wash out her abdominal cavity, and perform a colostomy. A few weeks later while still in the hospital, an intestinal obstruction developed which required a second surgery. During the second surgery, infection was found in Ms. Burrell's pelvis area. Ms. Burrell was discharged from the hospital approximately seven weeks later on June 1, 2002.
A few days later, on June 10, 2002, Ms. Burrell was hospitalized again because her liver was starting to shut down, as evidenced by the yellowing of her eyes and skin.
She was discharged ten days later because her condition could not be medically treated any further. Ms. Burrell was hospitalized once more, but was discharged within a few days because nothing could be done for her. In short, Ms. Burrell was sent home to die.
On August 14, 2002, Laverne Burrell died. She was survived by two sons, Lindell and Duane Burrell, and a daughter, Dianne Hampton.
All of the defendants in this case are responsible for Laverne Burrell's death. Three of the defendants in this case were directly involved in providing the colonic services to Ms. Burrell at Years to Your Life Health Centers. These defendants are:
These defendants are "sellers" of defective products, as defined by Section 82.001(3) of the Texas Civil Practice & Remedies Code.
Cynthia Pitre and her business, Years to Your Life Health Centers, advertised colonic irrigations as "painless" procedures which provided health benefits including an improved immune system and increased energy, as well as relief from indigestion, diarrhea, constipation, weight loss, body odor, candida, acne, mucus colitis, gas, food cravings, fatigue, obesity, diverticulosis, bad breath, parasitic infections, and premenstrual syndrome. Cynthia Pitre actually claimed that colonic irrigations were key to her successful battle with breast cancer.
Five other defendants in this lawsuit were involved in the design, manufacture, and sale of the unreasonably dangerous products that were used on Ms. Burrell. These defendants are:
Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain manufactured and sold the colon irrigation table that was used to administer the colonic to Laverne Burrell. Jimmy John Girouard and Colon Therapeutics, Inc. are "sellers" and "manufacturers" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. Alice Coudrain is a "seller" of defective products, as defined by Section 82.001(3) of the Texas Civil Practice & Remedies Code. These defendants' products were prescription medical devices which could only be possessed by, and used on the order of, a licensed physician. Despite these restrictions, Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain sold these products to anyone, regardless of their medical training.
Atlantis Plastics Company manufactured the rigid plastic tubing that was a component part of the rectal nozzle that Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain incorporated into their colon irrigation table. Therefore, Atlantis Plastics Company is a "seller" and a "manufacturer" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. On information and belief, Laverne Burrell was administered a colonic using a rectal nozzle that had been manufactured by Atlantis Plastics Company.
PFI Molding, Inc. manufactured the tip of the rectal nozzle. The rectal nozzles were a combination of nozzles from PFI Molding, Inc. attached to the plastic tubing from Atlantis Plastics Company. As such, the nozzle tips were component parts of the rectal nozzles that Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain incorporated into their colon irrigation table. Therefore, PFI Molding, Inc. is a "seller" and a "manufacturer" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. On information and belief, Laverne Burrell was administered a colonic using a rectal nozzle that had a tip on it that had been manufactured by PFI Molding, Inc.
In addition, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, and Colon Therapeutics Research Institute trained Cynthia Pitre regarding the administration of colonics, even though they had no college degrees or medical training. Upon the conclusion of the defendants' multi-day training course in a trailer located behind Jimmy John Girouard's house, Cynthia Pitre had no medical credentials whatsoever, and she had no authority to possess, prescribe, or use the prescription medical devices that were designed, manufactured, and sold by Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain. On behalf of the "Board of Examiners of Colon Therapeutics Research Institute," Jimmy John Girouard signed Cynthia Pitre training certificate as a "certified instructor," and Alice Coudrain signed the certificate as a "certified examiner." The defendants knew or should have known of these restrictions, yet their training course failed to inform Cynthia Pitre in this regard. This same training course also failed to inform Cynthia Pitre of the serious risks associated with colonics, even though these defendants knew or should have known of these risks.
Another defendant, Tiller Mind and Body, Inc., trained Candace L. Stowers, the "colonic technician" who assisted Ms. Burrell at Years to Your Life Health Centers on April 20, 2002. On information and belief, Tiller Mind and Body, Inc. failed to inform Mrs. Stowers regarding the serious risks associated with colonics, even though Tiller Mind and Body, Inc. knew or should have known of these risks. Also on information and belief, this same training program failed to inform Mrs. Stowers that prescription medical devices, such as those that were used at Years to Your Life Health Centers on Laverne Burrell, cannot be used to administer colonics unless a licensed physician prescribes the procedure, and possesses and supervises the use of the equipment. If Tiller Mind and Body, Inc. had properly trained Candace L. Stowers regarding colonics and prescription medical devices, Laverne Burrell would not have received a colonic because:
Finally, the International Association for Colon Hydrotherapy (which is abbreviated as "I-ACT") is an organization of colon hydrotherapists located in San Antonio. It has no government affiliation or sponsorship whatsoever. On information and belief, I-ACT created the curriculum that was used by Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, and Colon Therapeutics Research Institute to teach Cynthia Pitre and Candace L. Stowers about colonics.
It is believed this same curriculum was used to educate Alice Coudrain who, in turn, helped educate Cynthia Pitre. I-ACT knew or should have know of the serious risks associated with colonics, yet failed to incorporate any such wamings into its curriculum.
In addition, I-ACT knew or should have known that prescription medical devices cannot be used to administer colonics unless a licensed physician possesses the equipment, and prescribes and monitors the procedure. I-ACT also failed to incorporate this critical information into its teaching curriculum. I-ACT's faulty curriculum kept crucial information from those who were involved in providing colonic services to Laverne Burrell, which was a proximate cause of Ms. Burrell's injuries and resulting death.
In summary, Laverne Burrell was killed by snake oil salesmen. The defendants' products and services posed grave health risks to consumers and provided no medical benefits whatsoever. Each defendant knew or should have known this, yet none of them took any action that was calculated to inform customers, like Laverne Burrell, of this critical information.
Each defendant knew or should have known of the serious risks associated with colonics. Each defendant was in a position to warn Laveme Burrell about these risks, directly or indirectly, yet not one of them did.
Each defendant knew or should have known that colonics can only be prescribed by a licensed physician, yet not one of the defendants took any action that was intended to inform customers. like Laverne Burrell. of this fact.
Each defendant knew or should have known that the colonic table and rectal nozzle were prescription medical devices that could only be possessed by a licensed physician, yet not one of the defendants took any action that was intended to inform customers, like Laverne Burrell, of this fact.
These unscrupulous acts killed Laverne Burrell.
The plaintiffs incorporate by reference the allegations set forth above. The defendants engaged in negligent conduct which proximately caused Laverne Burrell's injuries and resulting death. Examples of negligence include the following:
The conduct of Etemal Health, Inc. d/b/a Years to Your Life Health Centers, Cynthia Pitre, Candace L. Stowers, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, Atlantis Plastics Company. and PFI Molding, Inc. constitutes negligence per sa because they designed, manufactured, sold, possessed and/or used FDA registered devices in contravention of the FDA regulations and guidelines governing these devices. These regulations were designed to protect the general public from serious injuries and death. If these defendants had followed FDA rules and regulations regarding the use of prescription medical devices, Laveme Burrell would not have received a colonic at Years to Your Life Health Centers, and she would not have suffered her fatal injuries.
The plaintiffs incorporate by reference the allegations set forth above.
The defendants made negligent misrepresentations. Specifically, they made representations in the course of their business or in a transaction in which they had a pecuniary interest, the representations supplied false information for the guidance of others in their business, and they did not exercise reasonable care or competence in obtaining or communicating the information. These negligent misrepresentations proximately caused Laverne Burrell's injuries and resulting death.
The plaintiffs incorporate by reference the allegations set forth above. Laverne Burrell was an individual consumer who sought or acquired the defendants' goods and services. The defendants are "persons" who can be sued under, the DTPA. See Tex. Bus. & Com. Code Ann. § 17.50(a)(1).
The defendants committed the following violations of the DTPA:
This conduct entitles the plaintiffs to recover actual damages, economic damages, attorneys' fees, and court costs. See § 17.50(b)(1) & (d).
In addition, the defendants knowingly engaged in the above-referenced conduct, thereby entitling the plaintiffs to awards of mental anguish and treble economic damages. See § 17.50(b)(1).
Alternatively, the defendants intentionally engaged in the above-referenced conduct, thereby entitling the plaintiffs to treble mental anguish and economic damages. See § 17.50(b)(1).
The plaintiffs incorporate by reference the allegations set forth above.
The colonic irrigation devices described above were unreasonably dangerous, and were designed, manufactured, produced, sold and/or marketed by Cynthia Pitre, Eternal Health, Inc. d/b/a Years to Your Life Health Centers, Candace L. Stowers, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, Atlantis Plastics Company, and PFI Molding, Inc. The dangers of these devices, when in the hands of untrained medical personnel, went beyond that which would have been contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the products' characteristics.
Further, these defendants failed to give adequate warnings of the products' dangers which were known by them, or by the application of reasonably developed human skill and foresight should have been known by them, or failed to give adequate instructions to avoid such dangers, which failure rendered the products unreasonably dangerous.
These failures were proximate causes of Laverne Burrell's injuries and death.
The plaintiffs incorporate by reference the allegations set forth above.
The defendants committed common law fraud because they failed to disclose material facts concerning their products and services. Specifically:
The plaintiffs seek recovery of all actual and exemplary damages proximately caused by this fraudulent conduct.
The defendants' conduct was grossly negligent and malicious, as those terms are defined in Tex. Civ. Prac. & Rem. Code § 41.001(7)(B). See Tex. Civ. Prac. & Rem. Code § 41.003(a)(3) (in wrongful death cases, "gross neglect" and "malice" share the same definition under § 41.001 (7)(B)).
The defendants' deceptive conduct (as described above) was also fraudulent, as described above. Therefore, the plaintiffs are entitled to exemplary damages in an amount to be determined by a jury.
The defendants are liable for the death of Laverne Burrell under the Texas Wrongful Death and Survival Statutes.
Under the Survival Statute, the defendants are liable for all injuries sustained and damages incurred by Laverne Burrell, including but not limited to conscious pain and suffering, mental anguish, medical expenses, and funeral expenses.
Under the Wrongful Death Statute, the defendants are liable to Duane Burrell, Dianne Hampton, and Lindell Burrell for their damages proximately caused by the defendants' conduct, including mental anguish and suffering, loss of companionship and society, medical expenses, and funeral expenses.
Laverne Burrell died a slow and painful death because the defendants participated in a deceptive scheme to provide "colonics" to the unsuspecting public.
The procedure appeared to have medical sponsorship, and it was supposed to be completely safe and make Ms. Burrell feel better. Nothing could have been farther from the truth.
When Laverne Burrell's colon was punctured on April 20, 2002, she immediately experienced severe abdominal pain. Ms. Burrell required immediate emergency medical attention, and she underwent surgery that evening to resect her colon, wash out her abdominal cavity, and perform a colostomy. Several days later, an intestinal obstruction developed which required a second surgery.
On June 1, 2002, Ms. Burrell was discharged from the hospital. She was cared for by family members in the home of Ms. Burrell's daughter, Dianne Hampton.
On June 10, 2002, Ms. Burrell was hospitalized again because she was experiencing liver failure as evidenced by the yellowing of her eyes and skin. On June 20, 2002, Ms. Burrell was discharged because doctors could not help her.
On July 22, 2002, Ms. Burrell was taken by ambulance to the hospital for a third time. On July 26, 2002, Ms. Burrell was sent home again because doctors could not help her. She was sent home to die.
From the day her colon was punctured, Laverne Burrell never returned to her own home - she spent her remaining days either agonizing in the hospital or in her daughter's home because she required constant assistance with her daily activities and bodily functions.
On August 14, 2002, Laverne Burrell died.
Ms. Burrell's children have suffered extreme mental anguish due to the loss of their beloved mother, and will continue to suffer these damages for many years into the future.
Although it pales in comparison to the tremendous pain and mental anguish suffered by her, Laverne Burrell also incurred substantial medical expenses relating to the many medical treatments which were rendered.
Upon her death, Laverne Burrell's children incurred funeral expenses to bury their mother.
Pursuant to Section 17.50 of the Texas Deceptive Trade Practices Act, the plaintiffs are entitled to their reasonable and necessary attorneys' fees.
Exemplary damages will not be capped by Section 41.008(b) of the Texas Civil Practice & Remedies Code because the defendants' conduct constitutes a knowing violation of Section 22.04 of the Texas Penal Code, Injury to an Elderly or Disabled
Individual, because Laverne Burrell was 72 years old when she suffered her fatal injuries. Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c)(7).
All conditions precedent have been performed or have occurred as required by Texas Rule of Civil Procedure 54.
The plaintiffs have previously requested a trial by jury on all issues and tendered the requisite jury fee.
WHEREFORE, the plaintiffs, the Estate of Laverne Burrell, by and through its Administrator, Duane Burrell, Duane Burrell, Individually, Diane Hampton, and Lindell Burrell, respectfully pray that PFI Molding, Inc. be cited to appear and answer herein, and that upon final consideration, they be awarded judgment for those actual, treble, and exemplary damages described above in an amount to be determined by the jury, attorneys' fees, prejudgment and post judgment interest as allowed by law, costs of court, and such other and further relief, at law or in equity, to which they may be justly entitled.
Respectfully submitted
RUSTY HARDIN & ASSOCIATES.P.C
Rusty Hardin
State Bar No.: 08972800 Bob Galatas
State Bar No.: 00787509
1201 Louisiana, Suite 3300
Houston, Texas 77002
(713) 652-9000 Telephone
(713) 652-9800 Facsimile
RIENSTRA, DOWELL & FLATTEN
Gerald R. Flatten
State Bar No.: 07112500
595 Orleans Street, Suite 1007
Beaumont, Texas 77701-3020
(409) 833-6317 Telephone
(409) 833-9530 Facsimile
I hereby certify that a true and correct copy of the foregoing document was served on all counsel of record and unrepresented parties, on September 19, 2003, pursuant to Rule 21a.
Dana Timaeus Timaeus & Rose, L.L.P.
1612 Interstate 10
South Beaumont, Texas 77007
Michael McGown
Benckenstein, Norvell & Nathan, L.L.P.
550 Fannin Suite 200
P.O. Box 551
Beaumont, Texas 77704-0551
John Strawn
Cruse, Scott, Henderson & Allen, L.L.P.
2777 Allen Parkway I 7th Floor
Houston, Texas 77019-2133
Nick Baldo
Stevens, Baldo & Freeman, L.L.P.
550 Fannin, Suite 400 Beaumont, Texas 77701
Bill Wilson
Beirne, Maynard & Parsons, L.L.P.
Wells Fargo Bank Tower, 25th Floor 1300 Post Oak Boulevard
Houston, Texas 77056-3000
Troy A. Williams
Hays, McConn, Rice & Pickering 1
200 Smith Street
400 Two Houston Center Houston, Texas 77002
Susan E. Potts
Potts & Reilly, L.L.P.
401 West 15th Street, Suite 850
Austin, Texas 78701-1665
PFI Molding, Inc. c/o David Aguilar
8777 Tallyho Road # 200
Houston, Texas 77061
Colon Therapeutics Research Institute
c/o Jimmy John Girouard
2909 Main Avenue
Groves, Texas 77619
Gerald R. Flatten
Rienstra, Dowell & Flatten
595 Orleans Street, Suite 1007
Beaumont, Texas 77701-3020