FILED DALLAS COUNTY 12/12/2017 3:28 PM FELICIA PITRE DISTRICT CLERK Marissa Pittman CAUSE NO. DC-17-04958 ANNE LOONEY Petitioner, v. § § § § JOSIE CAMACHO § Intevenor § v. § § JMA PARTNERS, INC. d/b/a § GUARDIAN PHARMACY SERVICES, § Respondent, § § AND § § ANNE LOONEY § Plaintiff, § v. § § VAN VANDIVER and SUSIE VANDIVER § Intervenor-Plaintiffs, § § v. § § PROFESSIONAL COMPOUNDING § CENTERS OF AMERICA, INC. § Defendant. § IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 95th JUDICIAL DISTRICT VAN and SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE: Purusant to Texas Rule of Civil Procedure 60, Intervenor-Plaintiffs, Van Vandiver and Susie Vandiver, file this petition in intervention and request for disclosure complaining of Defendant Professional Compounding Centers of America, inc., and allege as follows: VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 1 P a g e I. PARTIES 1.01 Intervenor-Plaintiff, Van Vandiver, is an individual who resides in Hopkins County at 1376 Hideaway Lane W, Lindale, Texas 75771. The last three digits of intervenor’s driver’s license number are 303. The last three digits of intervenor’s Social Security number are 571. 1.02 Intervenor-Plaintiff, Susie Vandiver, is an individual who resides in Hopkins County at 1376 Hideaway Lane W, Lindale, Texas 75771. The last three digits of intervenor’s driver’s license number are 020. The last three digits of intervenor’s Social Security number are 411. 1.03 Plaintiff, Anne Looney, is an individual who resides in Dallas, Dallas County, Texas and her counsel of record is Andrew D. Sommerman. 1.04 Defendant, Professional Compounding Centers of America, Inc., (hereinafter “PCCA”), a domestic for-profit corporation, has appeared and answered, through their counsel of record, Thomas W. Fee. II. VENUE AND JURISDICTION 2.01 Venue in this case is proper in Dallas County, Texas, because the incident that forms the basis of this lawsuit occurred in Dallas County, Texas. 2.02 The amount in controversy, exclusive of interest and costs, is in excess of the minimum jurisdictional limits of this Court. Specifically, Plaintiff seeks monetary relief in excess of $1,000,000, and all other relief to which she may be justly entitled. III. THE ORIGINAL LAWSUIT 3.01 On July 24, 2017, Plaintiff, Anne Looney, sued Defendant, PCCA, for negligence, failure to warn and design defect. VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 2 P a g e 3.02 On August 22, 2017, Defendant filed an answer asserting, “[d]efendant denies each and every, all and singular, the material allegations contained within Plaintiff’s pleadings and demands strict proof thereof.” 3.03 On October 2, 2017, the Court signed a Scheduling and Level 3 Discovery Order; this case is currently set for trial, by jury, on August 13, 2018 at 8:30 AM. IV. INTERVENOR-PLAINTIFFS’ INTEREST IN LAWSUIT 4.01 Defendant, PCCA, is a distributor of formulas and ingredients for compounding pharmacies. Defendant, PCCA, is not a pharmacy, compounding pharmacy, health care provider or healthcare institution. 4.02 Defendant, PCCA, sent a formula, for an injection made of Triamcinolone/moxifloxacin with Pluronic, that caused permanent eye damage during the routine cataract surgery of Van Vandiver. 4.03 Mr. Vandiver’s claims arise out of the same set of facts and circumstances as Plaintiff Looney, thereby under Texas Rules of Civil Procedure 60, Mr. Vandiver wishes to exercise his right to intervene into this suit by Plaintiff Looney against PCCA. 4.04 Likewise, the Intervenor’s interest must be a “justiciable” one. A party has a justiciable interest in a lawsuit when its interests will be affected by the litigation. In re Union Carbide Corp., 273 S.W. 3d 152, 154-155 (Tex. 2008). A party may intervene in a suit if it could have brought all or part of the same suit in its own name. Id. 4.05 Under the standard promulgated by the Texas Supreme Court, Mr. Vandiver undeniablly maintains a sufficient justiciable interest in this matter because the injuries suffered by Mr. Vandiver are likend to those of Plaintiff, Looney, and involve the same procedure, product as Plaintiff, Looney and is against the same Defendant, PCCA. VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 3 P a g e 4.06 On February 2, 2017, Mr. Vandiver underwent a scheduled cataract surgery to remove a cataract in his left eye. Dr. Jeff Whitman, a medical doctor at Key Whitman Eye Center, performed the cataract surgery. As part of the surgery, an injection provided by Guardian Pharmacy Services (Guardian) was administered in his eye. Guardian obtained the formula and/or supplies from PCCA to aid with eye inflammation and irritation. 4.07 On February 16, 2017 Mr. Vandiver began to suffer from headaches and blurred vision, likened to, “swirly ceiling fans”. Mr. Vandiver confronted the Key Whitman doctor of these symptoms but they were dismissed as issues that would eventually clear up. 4.08 On February 23, 2017 Mr. Vandiver underwent another scheduled cataract surgery to remove a cataract in his right eye. This procedure was also performed at Key Whitman Eye Center. Like the first surgery, an injection provided by Guardian Pharmacy Services (Guardian) was administered in his eye. Guardian obtained the formula and/or supplies from PCCA to aid with eye inflammation and irritationvision. 4.09 On March 7, 2017 Mr. Vandiver went for a post-op appointment where it was determined he still had inflammation in his left eye and by March 21, 2017, he could not see the big “E” on the eye chart. 4.10 Mr. Vandiver can no longer drive, ride his bike on mountain trials or conduct his beloved hobby of woodwork. Guardian issued a product recall of injections using the formula, provided to them by Defendant PCCA. This included the injections used in both of Mr. Vandiver’s cataract surgeries. V. INTERVENOR-PLAINTIFFS’ CAUSES OF ACTION A. NEGLIGENCE 5.01 Defendant PCCA placed the formula into the stream of commerce. At all times VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 4 P a g e 4.06 On February 2, 2017, Mr. Vandiver underwent a scheduled cataract surgery to remove a cataract in his left eye. Dr. Jeff Whitman, a medical doctor at Key Whitman Eye Center, performed the cataract surgery. As part of the surgery, an injection provided by Guardian Pharmacy Services (Guardian) was administered in his eye. Guardian obtained the formula and/or supplies from PCCA to aid with eye inflammation and irritation. 4.07 On February 16, 2017 Mr. Vandiver began to suffer from headaches and blurred vision, likened to, “swirly ceiling fans”. Mr. Vandiver confronted the Key Whitman doctor of these symptoms but they were dismissed as issues that would eventually clear up. 4.08 On February 23, 2017 Mr. Vandiver underwent another scheduled cataract surgery to remove a cataract in his right eye. This procedure was also performed at Key Whitman Eye Center. Like the first surgery, an injection provided by Guardian Pharmacy Services (Guardian) was administered in his eye. Guardian obtained the formula and/or supplies from PCCA to aid with eye inflammation and irritationvision. 4.09 On March 7, 2017 Mr. Vandiver went for a post-op appointment where it was determined he still had inflammation in his left eye and by March 21, 2017, he could not see the big “E” on the eye chart. 4.10 Mr. Vandiver can no longer drive, ride his bike on mountain trials or conduct his beloved hobby of woodwork. Guardian issued a product recall of injections using the formula, provided to them by Defendant PCCA. This included the injections used in both of Mr. Vandiver’s cataract surgeries. V. INTERVENOR-PLAINTIFFS’ CAUSES OF ACTION A. NEGLIGENCE 5.01 Defendant PCCA placed the formula into the stream of commerce. At all times VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 4 P a g e relevant, Defendant PCCA was responsible for designing, testing, studying, inspecting, labeling, marketing, advertising, selling, promoting and/or distributing their formula, which was used by Guardian. 5.02 At all relevant times, Defendant PCCA had a duty to Mr. Vandiver and other consumers of the formula to exercise reasonable care in order to properly design, test, study, inspect, label, market, advertise, sell, promote, and distribute this product. That includes a duty to warn of side effects and to warn of the risks, dangers, and adverse events associated with the formula. Defendant had a similar duty to warn Mr. Vandiver’s physicians. 5.03 Intervenors would show this Court that the negligent acts and omissions of the Defendant, as set out herein, were a direct and proximate cause of the incident in question and the resulting injuries and damages sustained by Intervenors, Van Vandiver and Susie Vandiver. The violations, negligent acts and omissions are, among others, as follows: a. Failed to use due care in the design of the formula to prevent injury or risk of injury to those in whom the formula was used; b. Failed to conduct adequate pre-clinical testing and research to determine the safety of the formula; c. Failed to conduct adequate post-marketing surveillance to determine the safety of the formula; d. Failed to accompany their products with proper warnings regarding all possible adverse side effects and complications associated with the use of the formula and the comparative severity and duration of such adverse effects; e. Failed to adequately report adverse events associated with the injection of the formula; f. Failed to use due care in the inspection of the formula to prevent the injury and risk of injury to individuals when the formula was used; h. Failed to use due care in the marketing of the formula to prevent the injury and risk of injury to individuals when the formula was used; VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 5 P a g e 5.04 i. Failed to use due care in the labeling of the formula to prevent the injury and risk of injury to individuals when the formula was used; k. Failed to use due care in the promotion of the formula to prevent the injury and risk of injury to individuals when the formula was used; l. Failed to use due care in the selling of the formula to prevent the injury and risk of injury to individuals when the formula was used; m. Failed to provide adequate information to healthcare providers regarding the risks associated with the implementation of the formula; n. Failed to adequately warn about the health consequences, risks, and adverse events caused by the formula; and o. Were otherwise careless or negligent. Defendant PCCA knew or should have known that the formula caused unreasonable harm and dangerous side effects that many recipients would be unable to remedy by any means. Despite this, Defendant continued to promote and market the formula for use by consumers, including Mr. Vandiver. 5.05 It was foreseeable to Defendant PCCA that consumers, including Mr. Vandiver, would suffer injury as a result of Defendant’s failure to exercise ordinary care as described herein. 5.06 As a direct and proximate result of Defendant’s conduct, Mr. Vandiver suffered the injuries and damages specified herein. B. STRICT LIABILITY (FAILURE TO WARN) 5.07 Intervenor-Plaintiffs reallege all previous paragraphs. 5.08 Defendant PCCA supplied the formula described herein and at all material times was in the business of doing so. It placed this product in the stream of commerce. The formula was expected to and did, reach Mr. Vandiver without substantial change in its condition. 5.09 When Defendant PCCA placed the formula into the stream of commerce, it failed to accompany it with adequate warnings of the formula's dangerous propensities that were either known or reasonably scientifically knowable at the time of the design and distribution. VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 6 P a g e 5.10 Defendant PCCA failed to warn Mr. Vandiver’s physicians and by extension, Mr. Vandiver, of the true risks and dangers and of the symptoms, scope, and severity of the potential complications of the formula. 5.11 Due to the inadequate warnings as alleged herein, at the time the formula left Defendant’s hands, it was unreasonably dangerous and defective. Had Defendant PCCA provided adequate warnings and instructions, Mr. Vandiver would not have had the formula used in his surgery and would not have suffered the personal injuries he did. 5.12 The Defect in the product was a producing cause of the injuries and damages specified herein. C. STRICT LIABILITY (DESIGN DEFECT) 5.13 Intervenor-Plaintiffs reallege all previous paragraphs. 5.14 Defendant PCCA manufactured and/or supplied the formula described herein and at all material times was in the business of doing so. It placed the formula into the stream of commerce. The formula was expected to and did, reach Mr. Vandiver without substantial change in its condition. 5.15 At the time the formula left Defendant’s hands, it was in a condition not contemplated by Mr. Vandiver. Specifically, it was defectively designed and unreasonably dangerous as applicable law defines those terms. 5.16 The formula was dangerous to an extent beyond that which would be contemplated by the ordinary consumer. It was more dangerous than Mr. Vandiver contemplated. The risks associated with the use of the formula outweighed its utility. 5.17 At the time of manufacture, the likelihood the formula would cause Mr. Vandiver’s harm or similar harms coupled with the seriousness of those harms, outweighed Defendant’s VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 7 P a g e burden in designing a formula that would have prevented those harms. There were practicable and feasible safer alternatives Defendant PCCA could have produced and sold. The design defects in the formula were a producing cause of the injuries and damages specified herein. VI. DAMAGES TO INTERVENOR-PLAINTIFFS VAN AND SUSIE VANDIVER 6.01 Intervenor Mr. Vandiver has experienced mental anguish in the past as a result of his physical injuries and, in all reasonable probability, will sustain mental anguish in the future as a result of his physical injuries. 6.02 Intervenor Mr. Vandiver experienced physical pain and suffering in the past as a result of his physical injuries, and in all reasonable probability, will sustain physical pain and suffering in the future as a result of her physical injuries. 6.03 Intervenor Mr. Vandiver has experienced physical impairment or physical incapacity in the past as a result of the incident and, in all reasonable probability, will sustain physical impairment or physical incapacity in the future. 6.04 Intervenor Mr. Vandiver has suffered lost earning capacity in the future. 6.05 Intervenor Mr. Vandiver has suffered disfigurement in the past as a result of the incident and, in all reasonable probability, such disfigurement will continue in the future. 6.06 Susie Vandirver seeks to recover loss of contorium damages due to the injuries of Van Vandiver. VII. CLAIM FOR PREJUDGMENT AND POST-JUDGMENT INTEREST 7.01 Intervenor-Plaintiffs, Van and Susie Vandiver claim all lawful prejudgment and post-judgment interest on the damages suffered by them. VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 8 P a g e VIII. JURY DEMAND 8.01 Intervenor-Plaintiffs demands a jury trial and tenders the appropriate fee with this petition. IX. CONDITIONS PRECEDENT 9.01 All conditions precedent to intervenor’s claim for relief have been performed or have occurred. X. REQUEST FOR DISCLOSURE Pursuant to Texas Rules of Civil Procedure 194, Intervenor-Plaintiffs request that Defendant disclose, within fifty (50) days of the service of this Request, the information or material described in Rule 194.2. XI. PRAYER For these reasons, Intervenor-Plaintiffs ask that, after trial, they be awarded a judgment against Defendant for damages described herein, for cost of suit, interest from the date of the incident and for such other relief to which they may be justly entitled. W Respectfully submitted, CURTIS LAW GROUP __________________________ William B. Curtis State Bar No. 00783918 Kila Lynn Bobier State Bar No. 24099045 12225 Greenville Ave., Ste. 750 Dallas, Texas 75230 (214) 890-1000 Phone VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 9 P a g e CERTIFICATE OF SERVICE I certify that on December 12, 2017, a true and correct copy of Valerie and Donald Mullins Original Petition for Intervention and Request for Disclosure was served on the parties listed below by electronic filing pursuant to the Texas Rules of Civil Procedure. Andrew B. Sommerman State Bar No. 18842150 3811 Turtle Creek Boulevard, Suite 1400 Dallas, Texas 75219 Telephone: (214) 720-0720 Email: andrew@textrial.com ATTORNEYS FOR ANNE LOONNEY, PLAINTIFF C. Gregory Shamoun State Bar No. 18089650 1800 Valley View Ln., Suite. 200 Farmers Branch, Texas 75234 Telephone: (214) 987-1745 g@snlegal.com ATTORNEYS JOSIE CAMACHO, INTERVENOR PLAINTIFF THOMAS W. FEE State Bar No. 06873160 Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, Texas 75240 Telephone: (972) 934-9100 Email: tfee@feesmith.com ATTORNEYS FOR PROFESSIONAL COMPOUNDING CENTERS OF AMERICA, INC., DEFENDANT William J. Clay THE WILLIS LAW GROUP, PLLC 10440 N. Central Expy., Suite 520 Dallas, Texas 75231 Telephone: (214) 736-9433 Email: service@thewillislawgroup.com ATTORNEY FOR JMA PARTNERS, INC., DEFENDANT /s/ William Curtis William B. Curtis VAN AND SUSIE VANDIVER’S ORIGINAL PETITION IN INTERVENTION AND REQUEST FOR DISCLOSURE 11 P a g e