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FILED

1/31/2018 3:44 PM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY

CC-18-00585-A
CAUSE NO. _________________

KOLBY LISTENBEE, § IN THE COUNTY COURT


Plaintiff, §
§
VS. §
§
TEXAS CHRISTIAN UNIVERSITY; §
TEXAS CHRISTIAN UNIVERSITY §
BOARD OF TRUSTEES; BIG XII § AT LAW NO. _______ OF
CONFERENCE, INC.; GARY §
PATTERSON; CHRIS DEL CONTE; §
DAVID GABLE; ZACH LACROSS; §
DILLON SMITH; JAMES RUSSELL §
“RUSTY” BURNS; DOUGLAS §
MEACHAM; and JOHN AND JANE §
DOES 1-10, §
Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE

Plaintiff, Kolby Listenbee, files this original petition against Defendants TEXAS

CHRISTIAN UNIVERSITY; TEXAS CHRISTIAN UNIVERSITY BOARD OF TRUSTEES;

BIG 12 CONFERENCE, INC.; DAVID GABLE; ZACH LACROSS; DILLON SMITH; CHRIS

DEL CONTE; GARY PATTERSON; JAMES RUSSELL “RUSTY” BURNS; DOUGLAS

MEACHAM; and JOHN AND JANE DOES 1-10, and alleges as follows:

DISCOVERY-CONTROL PLAN

1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions

process in Texas Rule of Civil Procedure 169 because Plaintiff requests injunctive relief, Plaintiff

seeks monetary relief over $100,000.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 1


CLAIM FOR RELIEF

2. Pursuant to Texas Rule of Civil Procedure 47, Plaintiff seeks monetary relief over

$1,000,000.

PARTIES

3. Plaintiff is Kolby Listenbee. Plaintiff resides in Dallas, Dallas County, Texas.

4. Defendant Texas Christian University (“TCU”), is a Texas corporation whose

registered office is located in Tarrant County, Texas. Defendant TCU may be served with process

by serving its registered agent for service of process, Victor Boschini Jr., 2800 South University

Dr., Fort Worth, Texas 76129.

5. Defendant Texas Christian University Board of Trustees (“TCU Board”), is a Texas

business that does business in Tarrant County, Texas. Defendant TCU Board may be served with

process by serving its chairman, Mark L. Johnson, at 2800 South University Dr., Fort Worth, Texas

76129.

6. Defendant Big 12 Conference, Inc. (“Big 12”), is a Texas corporation whose

registered office is located in Dallas County, Texas. Defendant Big 12 may be served with process

by serving its Commissioner, Bob Bowlsby, at 400 East John Carpenter Freeway, Irving, Texas

75062.

7. Defendant David Gable (“Gable”) is an individual who resides in Aledo, Parker

County, Texas. Gable may be served with process at TCU, 2900 Stadium Dr., Fort Worth, TX

76129.

8. Defendant Zach LaCross (“LaCross”) is an individual who resides in Fort Worth,

Tarrant County, Texas. LaCross may be served with process at TCU, 2900 Stadium Dr., Fort

Worth, TX 76129.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 2


9. Defendant Dillon Smith (“Smith”) is an individual who resides in Fort Worth,

Tarrant County, Texas. Smith may be served with process at TCU, 2900 Stadium Dr., Fort Worth,

TX 76129.

10. Defendant Chris Del Conte (“Del Conte”) is an individual who resides in Fort

Worth, Tarrant County, Texas. Smith may be served with process at TCU, 2900 Stadium Dr., Fort

Worth, TX 76129.

11. Defendant Gary Patterson (“Patterson”) is an individual who resides in Fort Worth,

Tarrant County, Texas. Patterson may be served with process at TCU, 2900 Stadium Dr., Fort

Worth, TX 76129.

12. Defendant James Russell “Rusty” Burns (“Burns”) is an individual who resides in

Fort Worth, Tarrant County, Texas. Burns may be served with process at TCU, 2900 Stadium Dr.,

Fort Worth, TX 76129.

13. Defendant Douglas Meacham (“Meacham”) is an individual who resides in

Lawrence, Douglas County, Kansas. Burns may be served with process at Kansas University,

Anderson Family Football Complex, 1146 Maine St., Lawrence, Kansas 66045.

14. Defendant John and Jane Does 1 – 10 are unknown Defendants who may be

identified at a later date as relevant and indispensable parties to this lawsuit.

JURISDICTION

15. The Court has subject matter jurisdiction over the lawsuit because the amount in

controversy exceeds this Court’s minimum jurisdictional requirements. This case cannot be

removed to federal court pursuant to 28 U.S.C. § 1441(b) because multiple defendants are forum

defendants.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 3


VENUE

16. Venue is proper in Dallas County pursuant to Texas Civil Practices & Remedies

Code Section 15 because Dallas County is the county of Defendant Big 12’s principal office in

this state as well as the place of residence of Plaintiff Kolby Listenbee.

FACTS

A. Background on Defendants

17. Upon information and belief, the following is known about the named Defendants

in this action:

a. Defendant Texas Christian University is a private university in the Division


1 level of the NCAA;

b. Defendant Big 12 is the collegiate conference of which Defendant TCU is


a member;

c. At the time of the incident in question, Defendant TCU employed the


following Defendants:

i. Dr. Karen Michele Kirk (head team physician for TCU


football)

ii. Dr. Jason Mogonye (assistant team physician for TCU


football)

iii. David Gable (head Athletic Trainer for TCU football)

iv. Zach LaCross (assistant Athletic Trainer for TCU football)

v. Dillon Smith (assistant Athletic Trainer for TCU football)

vi. Chris Del Conte (Athletic Director for TCU)

vii. Gary Patterson (Head Coach for TCU Football)

viii. James Russell “Rusty” Burns (Assistant Coach for TCU


Football)

ix. Douglas Meacham (former Offensive Coordinator for TCU


Football)

x. John and Jane Does 1-10

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 4


B. Background on Kolby Listenbee

18. Plaintiff Kolby Listenbee, born on January 25, 1994, is a life-long resident of

Tarrant County. Kolby attended Bowie High School in Arlington, Texas where he played

quarterback for the high school football team. In or around 2011, Kolby committed to Defendant

Texas Christian University to play college football. Kolby received a full scholarship to attend

TCU for college football starting in the Fall of 2012.

19. In his freshman year, 2012, Kolby transferred from the quarterback position to wide

receiver. Kolby struggled to learn the new position that required learning new skills like running

routes and catching the ball. Kolby was unable to contribute to the team greatly because of this

position. His struggled continued into his sophomore year in 2013 as well.

20. Kolby then joined TCU’s Track and Field team his sophomore year. Kolby

competed in numerous track events, specializing in the 60m, 100m, and 200m races. Mr.

Listenbee’s speed garnered him many accolades and championships. This includes running a 6.67s

60m in 2015, a 10.04s 100m in 2015, and a 20.60s 200m in 2015. These times cemented Kolby’s

“reputation as one of the nation’s fastest collegians.”1

21. With the help of his track successes, Kolby became more comfortable and confident

on the football field. In his junior year, 2014, Kolby finished with 41 receptions for 753 years and

four touchdowns. Twelve of those receptions were for 30 or more yards – a feat surpassed by only

one other college wide receiver that year.2 Kolby averaged 18.4 yards per reception which was

26th best in all of college football for 2014.

1
Chatmon, Brandon, Track triumphs spark TCU's Kolby Listenbee to gridiron success, September 2, 2015;
http://www.espn.com/blog/big12/post/_/id/102836/track-triumphs-spark-tcus-kolby-listenbee-to-gridiron-success
2
Id.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 5


22. After his junior year, Kolby’s rise in productivity on the football field was noticed

on a national level. Several articles3 were written on Kolby and his potential to be a huge star in

his senior year as well as in the National Football League.

23. In his senior year, Kolby played the first two games of the season and picked up

right where he left off his junior year. He caught 7 passes for 151 yards and 1 touchdown

contributing in wins against the University of Minnesota and Stephen F. Austin University. 4

C. Game that Created the Incident(s) in Question

24. On September 19, 2015, the TCU football team played the Southern Methodist

University football team in Fort Worth, Texas. Kolby started the game, as he had done in the two

previous games. Kolby played the entire first half of the game and started the third quarter.

25. At the 13-minute mark in the third quarter, TCU began a long drive downfield. The

score was 28-17 with TCU prevailing. TCU’s offense was on SMU’s 31 yard line and looked to

score. Defendant Patterson called for a passing play on 1st down and 10 yards to go. TCU’s

quarterback passed the ball to Kolby who caught the ball in the end zone. See, Figure 1. Kolby

landed awkwardly while still holding on to the ball. See, Figure 2 and 3. This catch gave TCU

six more points to add to their lead.

3
Id; http://www.star-telegram.com/sports/college/big-12/texas-christian-university/article30618720.html
4
Individual Receiving Statistics for 2015 TCU Football Season; http://www.gofrogs.com/sports/m-footbl/stats/2015-
2016/indgbg.html

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 6


Figure 1 - Kolby's catch

Figure 2 - Awkward fall after catch

Figure 3 - Awkward Fall after catch


26. After the catch, Kolby stood up with a noticeable limp. As he walked over to the

sideline, the pain in Kolby’s pelvic area caused him to fall to the ground. See, Figure 4.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 7


Figure 4 - Kolby falls to the ground on sideline due to pain
27. The TCU football staff immediately began treating Kolby with massage therapy on

his lower back. See, Figure 5. Kolby was in too much pain to return to the game.

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Figure 5 - Kolby receiving massage therapy

D. Kolby’s Initial Diagnosis

28. After the SMU game, Kolby was seen by Dr. Michelle Kirk at the TCU Sports

Medicine facility on TCU campus. Dr. Kirk diagnosed Kolby with osteitis pubis, pain in right

groin, and status post football injury on September 19, 2015. Dr. Kirk referred Kolby for a pelvic

MRI without contrast to confirm the diagnosis.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 8


29. On or about September 23, 2015, Kolby underwent a pelvic MRI without contrast

at Touchstone Imaging in Fort Worth, Texas. Dr. Naveed Khan interpreted the study and stated

that Kolby suffered osteitis pubis with marrow edema and possible grade 1 strain of his obturator

muscles bilaterally.

30. Prior to September 19, 2015, Kolby had never sustained injuries to his pelvic

region.

E. Osteitis Pubis and Standard Treatment

31. Osteitis Pubis is an inflammation of the pubic symphysis (the cartilage that unites

the two pubic bones) and surrounding muscles. 5 See, Figure 6.

Pubic symphysis

Pun": 5°” Inflammation

Figure 6 - Osteitis Pubis


32. The standard of care in treating osteitis pubis for an athlete is rest for eight to twelve

weeks until the athlete is pain-free, or has minimal pain and then light rehabilitation. If rest and

rehabilitation do not ameliorate the athlete’s condition, then corticosteroid therapy may be

considered.

5
http://emedicine.medscape.com/article/87420-overview

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 9


33. The use of corticosteroids and/or numbing agent should be limited because they

can result in atrophy of the surrounding tissues especially with frequent administration or excessive

doses. This atrophy can result in further musculoskeletal injury.

34. In fact, the NCAA Sports Medicine Handbook 6 specifically recommends that:

a. Injectable corticosteroids should be administered only after more


conservative treatments, including nonsteroidal anti-inflammatory
agents, rest, ice, ultrasound and various treatment modalities, have
been exhausted.

b. Repeated corticosteroid injections at a specific site should be done


only after the consequences and benefits of the injections have been
thoroughly evaluated.

c. Corticosteroid injections only should be done if a therapeutic effect


is medically warranted and the student-athlete is not subject to either
short- or long-term significant risk.

d. These agents should only be administered when medically justified,


when the risk of administration is fully explained to the student-
athlete, when the use is not harmful to continued athletics activity
and when there is no enhancement of a risk of injury.

35. Local anesthetics are also commonly used to treat athletes with osteitis pubis for

the pain the condition exudes. The NCAA Sports Medicine Handbook 7 specifically recommends

that:

a. These agents should only be administered when medically justified,


when the risk of administration is fully explained to the patient,
when the use is not harmful to continued athletics activity and when
there is no enhancement of a risk of injury.

36. The Handbook specifically does not recommend the following:

a. The use of local anesthetic injections if they jeopardize the ability


of the student-athlete to protect himself or herself from injury.

6
2014-2015 NCAA Sports Medicine Handbook, Guideline 2N, Injectable Corticosteroids in Sports Injuries
7
2014-2015 NCAA Sports Medicine Handbook, Guideline 2M, The Use of Local Anesthetics

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 10


F. Kolby’s Treatment

37. After his diagnosis of osteitis pubis, Kolby was instructed by Athletic Trainer David

Gable to immediately begin rehabilitation. Kolby relied on Defendant Gable’s expertise in the

field and began his rehabilitation of his hip the day after his injury.

38. On September 26, 2015, TCU football played a game against Texas Tech

University. Kolby did not play in the game. The next week, on October 3, 2015, TCU football

played a game against The University of Texas. Kolby also did not play in this game. TCU won

both games. Before and after the Texas Tech game, TCU football was ranked fourth in the nation.

After the University of Texas game, TCU football jumped up to second in the nation.

39. Between September 19, 2015 and October 3, 2015, a span of 14 days, Kolby

refrained from playing football games but was forced to practice and undergo rehabilitation.

40. On or around October 4, 2015, Kolby was examined by Dr. Kirk, Dr. Jason

Mogonye (another team doctor), Gable, LaCross, and Smith to determine his ability to return to

play. Kolby informed Defendants that he was still in pain. Despite his assertions, Kolby was

cleared by Defendants to practice with the team. Final clearance to return to play was given by

Defendant Patterson – the head coach of the TCU football team, Defendant Meacham – the

Offensive Coordinator, and Defendant Burns – the assistant coach.

41. On October 10, 2015, Kolby played in his first game since the injury against Kansas

State University. Kolby, still in immense pain and with limited mobility, had zero catches for zero

yards and zero touchdowns. Defendant Patterson called Kolby’s performance “average.” 8

8
http://dev.rotoworld.com/recent/cfb/133231/kolby-listenbee

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 11


42. Kolby continued to practice and play in every game for the 2015 football season

for Defendant TCU. It was evident that Kolby’s production suffered due to his injury. The chart

below illustrates Kolby’s statistics for each game following his injury on September 19, 2015.

Date Opponent Catches Yards Touchdowns


October 17, 2015 Iowa State 6 101 1
October 29, 2015 West Virginia 4 86 0
November 7, 2015 Oklahoma State 3 58 1
November 14, 2015 Kansas 2 48 0
November 21, 2015 Oklahoma 4 98 1
November 27, 2015 Baylor 1 5 0
January 2, 2016 Oregon 1 1 0

43. Throughout the remainder of the season, Kolby received injections of local

anesthetics and corticosteroids from Drs. Kirk and/or Mogonye – TCU football’s team physicians.

These injections were given before the games and sometimes at halftime depending on Kolby’s

pain level. Kolby received an average of three injections per game before kickoff. Defendants

Gable, LaCross, and Smith (the Athletic Trainers) and Defendants Patterson, Meacham, and Burns

(the coaches) knew, supervised, and/or approved of the injections.

G. Pressure on Kolby to Return to Play

44. Between September 19, 2015 and October 3, 2015, Kolby faced tremendous

pressure to return to play despite his pain and his condition. These pressures came directly and

indirectly from Defendants Patterson, Gable, LaCross, Smith, Meacham, and Burns.

45. The first time Kolby was pressured was during the game Kolby was originally

injured in. Kolby landed awkwardly, limped off the field, and was then subsequently carried on

the sidelines by teammates to the Athletic Trainers’ table. As he was carried off, Defendant

Patterson congratulated Kolby on the touchdown. Defendant Gable stood near Kolby while he

received a massage on the table. Defendant Gable informed Defendants Patterson, Meacham, and

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 12


Burns that Kolby was in significant pain. Despite this knowledge and seeing Kolby being carried

by teammates, Defendants Patterson, Meacham, and Burns personally told Kolby “to get back out

on the field.” Kolby refused as he was barely able to walk. Defendant Patterson was visibly upset

by Kolby’s decision.

46. After the game and for the next two weeks, Defendants Patterson, Meacham, and

Burns continually harassed, humiliated, pressured, and threatened Kolby to return to play. On

numerous occasions, the aforementioned Defendants made fun of Kolby’s injury by telling him,

in front of the entire TCU football team, that Kolby was “faking it” and that he was “soft.” The

coaching Defendants would tell Kolby’s teammates who were also injured that Kolby is only

“saying he was injured because ‘misery loves company.’” The Defendants would also verbally

contrast Kolby to other injured teammates who were playing through their injury during practices,

film sessions, and team meetings.

47. On the way to the September 26, 2015 game against Texas Tech University,

Defendant Patterson forced Kolby to sit in a different airplane seat than the one Kolby typically

sits. The football team allowed starting seniors to sit in the first class section while the remainder

of the team had to sit in coach class. Defendant Patterson forced Kolby to switch seats with the

third string quarterback and sit in coach class. The humiliating incident occurred in front of the

entire team.

48. A few days prior to the October 3, 2015 game versus the University of Texas

Longhorns, Defendant Patterson told Kolby that if TCU was to lose to Texas then Kolby would

not only be dismissed from the TCU football team, but also from TCU itself.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 13


33. The use of corticosteroids and/or numbing agent should be limited because they

can result in atrophy of the surrounding tissues especially with frequent administration or excessive

doses. This atrophy can result in further musculoskeletal injury.

34. In fact, the NCAA Sports Medicine Handbook 6 specifically recommends that:

a. Injectable corticosteroids should be administered only after more


conservative treatments, including nonsteroidal anti-inflammatory
agents, rest, ice, ultrasound and various treatment modalities, have
been exhausted.

b. Repeated corticosteroid injections at a specific site should be done


only after the consequences and benefits of the injections have been
thoroughly evaluated.

c. Corticosteroid injections only should be done if a therapeutic effect


is medically warranted and the student-athlete is not subject to either
short- or long-term significant risk.

d. These agents should only be administered when medically justified,


when the risk of administration is fully explained to the student-
athlete, when the use is not harmful to continued athletics activity
and when there is no enhancement of a risk of injury.

35. Local anesthetics are also commonly used to treat athletes with osteitis pubis for

the pain the condition exudes. The NCAA Sports Medicine Handbook 7 specifically recommends

that:

a. These agents should only be administered when medically justified,


when the risk of administration is fully explained to the patient,
when the use is not harmful to continued athletics activity and when
there is no enhancement of a risk of injury.

36. The Handbook specifically does not recommend the following:

a. The use of local anesthetic injections if they jeopardize the ability


of the student-athlete to protect himself or herself from injury.

6
2014-2015 NCAA Sports Medicine Handbook, Guideline 2N, Injectable Corticosteroids in Sports Injuries
7
2014-2015 NCAA Sports Medicine Handbook, Guideline 2M, The Use of Local Anesthetics

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 10


F. Kolby’s Treatment

37. After his diagnosis of osteitis pubis, Kolby was instructed by Athletic Trainer David

Gable to immediately begin rehabilitation. Kolby relied on Defendant Gable’s expertise in the

field and began his rehabilitation of his hip the day after his injury.

38. On September 26, 2015, TCU football played a game against Texas Tech

University. Kolby did not play in the game. The next week, on October 3, 2015, TCU football

played a game against The University of Texas. Kolby also did not play in this game. TCU won

both games. Before and after the Texas Tech game, TCU football was ranked fourth in the nation.

After the University of Texas game, TCU football jumped up to second in the nation.

39. Between September 19, 2015 and October 3, 2015, a span of 14 days, Kolby

refrained from playing football games but was forced to practice and undergo rehabilitation.

40. On or around October 4, 2015, Kolby was examined by Dr. Kirk, Dr. Jason

Mogonye (another team doctor), Gable, LaCross, and Smith to determine his ability to return to

play. Kolby informed Defendants that he was still in pain. Despite his assertions, Kolby was

cleared by Defendants to practice with the team. Final clearance to return to play was given by

Defendant Patterson – the head coach of the TCU football team, Defendant Meacham – the

Offensive Coordinator, and Defendant Burns – the assistant coach.

41. On October 10, 2015, Kolby played in his first game since the injury against Kansas

State University. Kolby, still in immense pain and with limited mobility, had zero catches for zero

yards and zero touchdowns. Defendant Patterson called Kolby’s performance “average.” 8

8
http://dev.rotoworld.com/recent/cfb/133231/kolby-listenbee

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 11


42. Kolby continued to practice and play in every game for the 2015 football season

for Defendant TCU. It was evident that Kolby’s production suffered due to his injury. The chart

below illustrates Kolby’s statistics for each game following his injury on September 19, 2015.

Date Opponent Catches Yards Touchdowns


October 17, 2015 Iowa State 6 101 1
October 29, 2015 West Virginia 4 86 0
November 7, 2015 Oklahoma State 3 58 1
November 14, 2015 Kansas 2 48 0
November 21, 2015 Oklahoma 4 98 1
November 27, 2015 Baylor 1 5 0
January 2, 2016 Oregon 1 1 0

43. Throughout the remainder of the season, Kolby received injections of local

anesthetics and corticosteroids from Drs. Kirk and/or Mogonye – TCU football’s team physicians.

These injections were given before the games and sometimes at halftime depending on Kolby’s

pain level. Kolby received an average of three injections per game before kickoff. Defendants

Gable, LaCross, and Smith (the Athletic Trainers) and Defendants Patterson, Meacham, and Burns

(the coaches) knew, supervised, and/or approved of the injections.

G. Pressure on Kolby to Return to Play

44. Between September 19, 2015 and October 3, 2015, Kolby faced tremendous

pressure to return to play despite his pain and his condition. These pressures came directly and

indirectly from Defendants Patterson, Gable, LaCross, Smith, Meacham, and Burns.

45. The first time Kolby was pressured was during the game Kolby was originally

injured in. Kolby landed awkwardly, limped off the field, and was then subsequently carried on

the sidelines by teammates to the Athletic Trainers’ table. As he was carried off, Defendant

Patterson congratulated Kolby on the touchdown. Defendant Gable stood near Kolby while he

received a massage on the table. Defendant Gable informed Defendants Patterson, Meacham, and

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 12


Burns that Kolby was in significant pain. Despite this knowledge and seeing Kolby being carried

by teammates, Defendants Patterson, Meacham, and Burns personally told Kolby “to get back out

on the field.” Kolby refused as he was barely able to walk. Defendant Patterson was visibly upset

by Kolby’s decision.

46. After the game and for the next two weeks, Defendants Patterson, Meacham, and

Burns continually harassed, humiliated, pressured, and threatened Kolby to return to play. On

numerous occasions, the aforementioned Defendants made fun of Kolby’s injury by telling him,

in front of the entire TCU football team, that Kolby was “faking it” and that he was “soft.” The

coaching Defendants would tell Kolby’s teammates who were also injured that Kolby is only

“saying he was injured because ‘misery loves company.’” The Defendants would also verbally

contrast Kolby to other injured teammates who were playing through their injury during practices,

film sessions, and team meetings.

47. On the way to the September 26, 2015 game against Texas Tech University,

Defendant Patterson forced Kolby to sit in a different airplane seat than the one Kolby typically

sits. The football team allowed starting seniors to sit in the first class section while the remainder

of the team had to sit in coach class. Defendant Patterson forced Kolby to switch seats with the

third string quarterback and sit in coach class. The humiliating incident occurred in front of the

entire team.

48. A few days prior to the October 3, 2015 game versus the University of Texas

Longhorns, Defendant Patterson told Kolby that if TCU was to lose to Texas then Kolby would

not only be dismissed from the TCU football team, but also from TCU itself.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 13


49. Kolby was told on numerous occasions that if he did not return to play it would be

“next man up” and that his position as wide receiver would be given to the next player on the

roster.

50. On October 8, 2015, Defendant Patterson purposely told news reporters that he

believed the football team was actually better when Kolby was not playing. 9 Kolby took this as

an affront to his abilities and even more pressure to attempt to return to play despite not being

ready.

51. Most importantly to Kolby, Defendants Patterson, Meacham, and Burns informed

Kolby that if he did not return to play soon then they would begin to tell NFL scouts that he was

not tough enough for the professional level and/or he was faking his injury.

52. At the young and impressionable age of 21, Kolby believed that his college career

was at risk. Consequently, Kolby also believed his professional career would be at risk if he was

unable to continue playing at TCU.

53. Due to this pressure and relying on Defendants Patterson, Gable, LaCross, Smith,

Meacham, and Burns’ assurances that he was clear to play, Kolby returned to the football field

before he was fully healed.

54. The continuous injections numbed Kolby’s pain in his pelvic area allowing him to

practice with the team and take the field each Saturday for games. Without his knowledge, the

injections, specifically the corticosteroids, were deteriorating Kolby’s cartilage, muscles, and the

entire infrastructure of his pelvis.

9
http://www.foxsports.com/college-football/story/tcu-horned-frogs-gary-patterson-kobly-listenbee-better-without-
100815

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 14


H. TCU and Big 12’s Lack of Policies, Procedures, and Protocols

55. Defendant TCU is a Division 1 NCAA university. Its football team is a perennial

powerhouse that strives for the national championship each year.

56. Defendant Big 12 is one of the top major collegiate conferences whose members

are always competing in the College Football Playoffs.

57. Upon information and belief, despite being on higher education’s biggest stage,

Defendants TCU and Big 12 lack policies, procedures, and protocols that are crucial for the health

and safety of its student athletes.

58. Upon information and belief, these policies, procedures, and protocols include

safeguards against the immense pressure the student athletes receive from their team’s coaching

staff about return to play. The athletes are unable to voice their opposition to returning to play

despite their pain for fear of retribution or retaliation.

59. Upon information and belief, in addition, Defendants TCU and Big 12 lack policies,

procedures, and protocols regarding the medical clearance to return to play as it relates to

orthopedic injuries such as osteitis pubis.

60. Upon information and belief, all policies, procedures, and protocols are called for

and approved by Defendants Big 12, TCU, TCU Board, and Athletic Director Chris Del Conte.

I. Kolby’s Post College Path to the Professional Level

61. After the 2015 football season, Kolby graduated from TCU in December 2015.

62. Kolby attempted to pursue his dream of becoming a professional football player in

the National Football League.

63. In February 2016, Kolby attended the NFL Combine in Indianapolis, Indiana. He

participated in the 40 yard dash where he posted the second fastest time that year at 4.39 seconds.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 15


64. In March 2016, Kolby underwent surgery to repair two sports hernias he developed

due to the injections administered to him after his September 19, 2015 injury.

65. In April 2016, Kolby was selected in the 6th Round by the Buffalo Bills – a

professional football team located in Buffalo, New York.

66. In May 2016, Kolby signed a four-year rookie contract with the Bills for

$2,472,932.

67. Despite practicing with the Bills, the team placed Kolby on the non-football injury

list in August 2016.

68. Kolby was never able to play in the NFL due to his pelvic instability. In December

2016, Kolby underwent surgery to repair his pubic symphysis. A metal plate was placed in the

area to fuse his pelvic bones together. Kolby also had repairs made to his previous hernias.

69. Despite hard work and extensive rehabilitation throughout the 2016-2017 season,

Kolby was unable to play football. In June 2017, the Buffalo Bills waived Kolby.

70. Since June 2017, Kolby has visited with several NFL teams in hopes of landing a

spot on a professional roster which would mitigate his damages. Unfortunately, as the season

began, Kolby was not offered a position on any team.

71. Towards the end of the season, Kolby was invited to join the practice squad of the

Miami Dolphins professional football team. Kolby accepted and played on their practice squad

for several weeks. Kolby was then released by Miami on December 5, 2017.

72. Shortly thereafter Kolby signed on to the practice squad for the Indianapolis Colts.

Kolby signed a reserve/futures contract with the Colts on January 1, 2018. A reserve/futures

contract is non-guaranteed and the salary is only paid if Kolby makes the team.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 16


J. Kolby’s Damages

73. As a result of Defendants’ actions and/or omissions, Kolby suffered past and future

damages, including, past and future medical expenses, past and future lost wages and/or loss of

earning capacity, past and future pain and suffering past and future mental anguish, past and future

physical disfigurement, past and future physical impairment, and past and future aggravation of

preexisting condition.

74. In addition, due to the breach of contract by Defendants, Kolby has suffered losses

in value and losses in profits, including, but not limited to NFL career earnings, track & field

earnings, and endorsement earnings.

75. In addition, Plaintiff’s injury resulted from Defendants’ gross negligence, malice,

or fraud, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies

Code section 41.003(a).

76. In addition, Plaintiff is entitled to recover reasonable and necessary attorney fees.

77. Plaintiff seeks unliquidated damages within the jurisdictional limits of this

Court. See Tex. R. Civ. P. 47(b).

CAUSE OF ACTION ONE – NEGLIGENCE AND GROSS NEGLIGENCE AGAINST


DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN
UNIVERSITY BOARD OF TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC.,
CHRIS DEL CONTE, AND DEFENDANT DOES 1-10

78. Plaintiff hereby incorporates all prior allegations as though set forth herein.

79. Defendants owed a legal duty to Plaintiff. Defendants owed a duty to Plaintiff as

the school and conference of higher education in which Plaintiff agreed to receive his education

from and played for on the football field. Defendants owed a duty to possess and apply the

knowledge and to use the skill and care that is used by a reasonable and prudent educational

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 17


institution/conference in the same or similar circumstances. Defendants also owed a fiduciary duty

to Plaintiff.

80. Defendants breached its duties and were negligent as it relates to the incident in

question. Defendants’ negligence, errors, acts, and omissions include, but are not limited to:

a. Negligently failing to implement or require procedures and/or policies on:

i. how to treat and clear to play student athletes for Plaintiff’s


specific injury;

ii. how and when to record, maintain, and retain medical


records for student athletes;

iii. how and when to refer/consult with specialists in specialized


medical fields related to Plaintiff’s injury;

iv. how and when pharmaceutical drugs, including local


anesthetics and corticosteroids, should be administered;

v. informing the student athlete of the risks of playing with


injury and the long-term implications;

b. negligent hiring, training, supervision of Defendant TCU’s doctors, athletic


trainers, coaches, and staff who were involved in Plaintiff’s injury;

c. negligently lacking an orthopedist and/or orthopedic surgeon on the football


team staff;

d. negligently lacking the protective equipment necessary for football players


who returned to play after being treated for the injury Plaintiff suffered;

e. Other breaches that may be discovered throughout litigation.

81. Defendants’ breaches of duty were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

82. Defendants’ breach of duty proximately caused injury to Plaintiff, which resulted

in Plaintiff suffering past and future damages, including, past and future medical expenses, past

and future lost wages and/or loss of earning capacity, past and future pain and suffering past and

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 18


future mental anguish, past and future physical disfigurement, past and future physical impairment,

and past and future aggravation of preexisting condition.

83. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

84. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

85. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION TWO – NEGLIGENT HIRING, RETENTION, SUPERVISION,


TRAINING, AND MANAGEMENT AGAINST DEFENDANT TEXAS CHRISTIAN
UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD OF
TRUSTEES, CHRIS DEL CONTE, AND DEFENDANT DOES 1-10

86. Plaintiff hereby incorporates all prior allegations as though set forth herein.

87. Defendants employed Team Physicians Dr. Karen Michele Kirk and Dr. Jason

Mogonye as well as Defendants David Gable, Zach LaCross, Dillon Smith, James Russell Burns,

Douglas Meacham, Gary Patterson, and Chris Del Conte during the incident in question.

88. The aforementioned individuals were unqualified to handle their duties and

responsibilities, generally, and as it relates to the incident in question.

89. Defendants knew or should have known that hiring and retaining the

aforementioned individuals would create an unreasonable risk of injury to members of their student

athlete body.

90. Defendants failed to use ordinary care in hiring, retaining, supervising, training,

and managing the aforementioned individuals.

91. Defendants’ negligence in hiring, retaining, supervising, training, and managing

the aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 19


92. Defendants’ actions and/or omissions were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

93. Defendants’ actions and/or omissions proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

94. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

95. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

96. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION THREE – NEGLIGENT MISREPRESENTATION AGAINST


DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN
UNIVERSITY BOARD OF TRUSTEES, CHRIS DEL CONTE, AND DEFENDANT
DOES 1-10

97. Plaintiff hereby incorporates all prior allegations as though set forth herein.

98. Defendants represented the following to Plaintiff:

a. TCU’s football program had the nation’s best medical personnel;

b. Any injuries Plaintiff suffered would be treated properly;

c. Plaintiff’s health would be a top priority as it relates to playing


football; and

d. Plaintiff would not be placed in the uncomfortable position of being


forced back on the football field if he was not fully healed of his
injuries.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 20


99. Defendants made the representations in the course of Defendants’ business and in

the course of a transaction in which Defendants had an interest – recruiting Plaintiff for the school’s

football team.

100. Defendants’ representation was a misstatement of facts and opinions. Defendants

did not use reasonable care in communicating the information to Plaintiff.

101. Plaintiff justifiably relied on Defendants’ representations when Plaintiff agreed to

play for the school’s football team.

102. Defendants’ actions and/or omissions were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

103. Defendants’ misrepresentations proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

104. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

105. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

106. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION FOUR – RES IPSA LOQUITOR AGAINST DEFENDANT TEXAS


CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD
OF TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC., DEFENDANT CHRIS
DEL CONTE, AND DEFENDANT DOES 1-10

107. Plaintiff hereby incorporates all prior allegations as though set forth herein.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 21


108. Defendants directly and proximately caused the injuries and damages suffered by

Plaintiff.

109. It was Defendants’ responsibility to properly care for and treat Plaintiff.

110. That the events causing the injuries and damages to Plaintiff were of a kind which

do not ordinarily occur in the absence of negligence on the part of Defendants.

111. Thus, the doctrine of res ipsa loquitur is applicable as a theory of negligence,

causation and damages in this case and appropriately pled herein.

CAUSE OF ACTION FIVE – INTENTIONAL INFLICTION OF EMOTIONAL


DISTRESS AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT
TEXAS CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, DEFENDANT BIG 12
CONFERENCE, INC., DEFENDANT CHRIS DEL CONTE, AND DEFENDANT DOES
1-10

112. Plaintiff hereby incorporates all prior allegations as though set forth herein.

113. Plaintiff brings suit against Defendants in Plaintiff’s individual capacity.

114. Defendants’ conduct, as described above, during the incident in question was

intentional and/or reckless.

115. Defendants’ conduct was extreme and outrageous.

116. Defendants’ conduct proximately caused severe emotional distress to Plaintiff.

117. Plaintiff’s severe emotional distress cannot be remedied by any other cause of

action.

118. Defendants’ conduct proximately caused injury to Plaintiff, which resulted in

Plaintiff suffering past and future damages, including, past and future medical expenses, past and

future lost wages and/or loss of earning capacity, past and future pain and suffering past and future

mental anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of preexisting condition.

119. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 22


120. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

121. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION SIX – FRAUD AGAINST DEFENDANT TEXAS CHRISTIAN


UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD OF
TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC., DEFENDANT CHRIS DEL
CONTE, AND DEFENDANT DOES 1-10

122. Plaintiff hereby incorporates all prior allegations as though set forth herein.

123. Defendants represented to Plaintiff that:

a. TCU’s football program had the nation’s best medical personnel;

b. Any injuries Plaintiff suffered would be treated properly;

c. Plaintiff’s health would be a top priority as it relates to playing


football; and

d. Plaintiff would not be placed in the uncomfortable position of being


forced back on the football field if he was not fully healed of his
injuries.

124. Defendants’ representations to Plaintiff were material because the statements were

important to Plaintiff in making his decision to attend Defendants’ school and play for Defendants’

football team. Plaintiff relied on these statements.

125. Defendants’ representation to Plaintiff was a false statement of opinion Defendants

knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on

because of Defendants’ special knowledge.

126. Defendants made the false representations knowing they were false.

127. Defendants made the false representations recklessly, as a positive assertion, and

without knowledge of their truth.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 23


128. Defendants either intended for Plaintiff to rely on these false representations or had

reason to expect Plaintiff would act in reliance on the false representations.

129. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed

to attend Defendants’ school and play for Defendants’ football team.

130. Defendants’ fraudulent conduct proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

131. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

132. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

133. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the fraudulent conduct of the Defendants, without any contributing negligence on the

part of the Plaintiff.

CAUSE OF ACTION SEVEN – VICARIOUS LIABILITY (RESPONDEAT SUPERIOR)


AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS
CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, AND DEFENDANT DOES 1-10

134. Plaintiff hereby incorporates all prior allegations as though set forth herein.

135. The acts and/or omissions of Team Physicians Dr. Karen Michele Kirk and Dr.

Jason Mogonye as well as Defendants David Gable, Zach LaCross, Dillon Smith, James Russell

Burns, Gary Patterson, and Chris Del Conte, were performed while in the employment of

Defendants, TCU and TCU Board, and were within the course and scope of that employment or

within the authority delegated to the aforementioned Defendants.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 24


136. As such, Defendants TCU and TCU Board are vicariously liable for the negligence

and gross negligence of the aforementioned individuals under the doctrine of respondeat superior.

CAUSE OF ACTION EIGHT – ACTUAL OR APPARENT AGENCY/AUTHORITY


AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS
CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, AND DEFENDANT DOES 1-10

137. Plaintiff hereby incorporates all prior allegations as though set forth herein.

138. At the time of the incident in question, Defendants either (1) intentionally granted

Kirk and Mogonye the authority to act on Defendants’ behalf, (2) intentionally allowed Plaintiff

and other student athletes to believe that Kirk and Mogonye had authority to act on Defendants’

behalf, or (3) through a lack of due care, allowed Kirk and Mogonye to believe that their actions

taken on behalf of Defendants were authorized.

139. Defendants held out Kirk and Mogonye as having the authority to act on

Defendants’ behalf as proven by their following acts and/or omissions:

a. Affirmatively holding Kirk and Mogonye out as having authority to act on


Defendants’ behalf;

b. Providing Kirk and Mogonye with an office within Defendants’ football


stadium;

c. Providing Kirk and Mogonye with examination rooms within Defendants’


football stadium;

d. Providing Kirk and Mogonye with official school clothing to wear;

e. Providing Kirk and Mogonye with official identification badges for security
access to Defendants’ football stadium;

f. Providing Kirk and Mogonye with access to Plaintiff and other student
athletes before, during, and after football games, including during practices;

g. Expressing that Kirk and Mogonye were the football team’s “team
physicians” on Defendants’ website, See, Figure 7.10

10
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PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 25


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h. Failing to take affirmative steps to indicate to Plaintiff and other student


athletes that Kirk and Mogonye were anything other than agents or
employees of Defendants;

140. At the time of the incident in question, Kirk and Mogonye were acting within the

scope of the authority granted by Defendants when they negligently treated Plaintiff.

141. Due to Defendants’ conduct, Plaintiff reasonably believed that Kirk and Mogonye

had the authority to act on the Defendants’ behalf. A reasonably prudent person, using diligence

and discretion in light of the Defendants’ conduct, would naturally and reasonably suppose that

Kirk and Mogonye had the authority to act on behalf of Defendants.

142. Plaintiff justifiably relied on Kirk and Mogonye’s authority.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 26


173. Plaintiff’s severe emotional distress cannot be remedied by any other cause of

action.

174. Defendants’ conduct proximately caused injury to Plaintiff, which resulted in

Plaintiff suffering past and future damages, including, past and future medical expenses, past and

future lost wages and/or loss of earning capacity, past and future pain and suffering past and future

mental anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of preexisting condition.

175. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

176. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

177. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION THIRTEEN – LACK OF INFORMED CONSENT AGAINST


DEFENDANTS DAVID GABLE, ZACH LACROSS, DILLON SMITH, AND
DEFENDANT DOES 1-10

178. Plaintiff and Defendants established a physician-patient relationship. Plaintiff was

a student athlete and Defendants were the team physicians assigned to and that treated Plaintiff.

179. Before obtaining Plaintiff’s consent for the treatment plan they implemented for

Kolby’s condition, Defendants did not properly inform Plaintiff of the inherent risks and hazards

associated with such plan. Specifically, Defendants did not inform Plaintiff of the risks and

hazards associated with the use of corticosteroids and local anesthetics nor inform Plaintiff of the

risks and long term implications of returning to play before Plaintiff’s condition had completed

healed.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 31


180. Plaintiff was injured by the occurrence of an undisclosed risk. Specifically, Kolby’s

pelvic area, including the cartilage, bone, muscle, and tissue deteriorated due to Defendants’

actions and/or omissions, including, but not limited to the continuous use of corticosteroids and

anesthetics as well as the premature return to play.

181. A reasonable person would have refused the treatment plan if the risks and hazards

had been disclosed.

182. Defendants’ conduct proximately caused injury to Plaintiff, which resulted in

Plaintiff suffering past and future damages, including, past and future medical expenses, past and

future lost wages and/or loss of earning capacity, past and future pain and suffering past and future

mental anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of preexisting condition.

183. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

184. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

185. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION FOURTEEN – FRAUD AGAINST DEFENDANTS DAVID GABLE,


ZACH LACROSS, DILLON SMITH, AND DEFENDANT DOES 1-10

186. Plaintiff hereby incorporates all prior allegations as though set forth herein.

187. Defendants represented to Plaintiff that:

a. TCU’s football program had the nation’s best medical personnel;

b. Any injuries Plaintiff suffered would be treated properly;

c. Plaintiff’s health would be a top priority as it relates to playing


football; and

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 32


d. Plaintiff would not be placed in the uncomfortable position of being
forced back on the football field if he was not fully healed of his
injuries.

188. Defendants’ representations to Plaintiff were material because the statements were

important to Plaintiff in making his decision to allow Defendants to implement their proposed

treatment plan. Plaintiff relied on these statements.

189. Defendants’ representation to Plaintiff was a false statement of opinion Defendants

knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on

because of Defendants’ special knowledge.

190. Defendants made the false representations knowing they were false.

191. Defendants made the false representations recklessly, as a positive assertion, and

without knowledge of their truth.

192. Defendants either intended for Plaintiff to rely on these false representations or had

reason to expect Plaintiff would act in reliance on the false representations.

193. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed

to attend Defendants’ school and play for Defendants’ football team.

194. Defendants’ fraudulent conduct proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

195. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

196. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 33


197. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the fraudulent conduct of the Defendants, without any contributing negligence on the

part of the Plaintiff.

CAUSE OF ACTION FIFTEEN – FRAUD BY NONDISCLOSURE (FRAUDULENT


CONCEALMENT) AGAINST DEFENDANTS DAVID GABLE, ZACH LACROSS,
DILLON SMITH, AND DEFENDANT DOES 1-10

198. Plaintiff hereby incorporates all prior allegations as though set forth herein.

199. Defendants concealed and/or failed to disclose material facts relating to the

treatment plan implemented for Plaintiff.

200. Defendants had a duty to disclose the information to Plaintiff because Defendants

had a fiduciary duty to do so as well as a duty pursuant to their physician-patient relationship with

Plaintiff.

201. The information concealed or not disclosed was material because it affected

Plaintiff’s health, well-being, and future. Specifically, Defendants concealed or did not disclose

information that the continuous injections given to Plaintiff would deteriorate his pelvic area

causing him great harm. Defendants also concealed or did not disclose information that Plaintiff

was not fully healed at the time they cleared him to return to play.

202. Defendants knew Plaintiff was ignorant of the information and did not have an

equal opportunity to discover the truth.

203. Defendants deliberately remained silent and did not disclose the information to

Plaintiff.

204. By deliberately remaining silent, Defendants intended for Plaintiff to act without

the information.

205. Plaintiff justifiably relied on Defendants’ deliberate silence.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 34


206. By deliberately remaining silent, Defendant proximately caused injury to Plaintiff,

which resulted in Plaintiff suffering past and future damages, including, past and future medical

expenses, past and future lost wages and/or loss of earning capacity, past and future pain and

suffering past and future mental anguish, past and future physical disfigurement, past and future

physical impairment, and past and future aggravation of preexisting condition.

207. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

208. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

209. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION SIXTEEN – NEGLIGENCE AND GROSS NEGLIGENCE


AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES
RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10

210. Plaintiff hereby incorporates all prior allegations as though set forth herein.

211. Defendants owed a legal duty to Plaintiff. Defendants owed a duty to Plaintiff as

the head coach and assistant coach of the TCU football team during the incident in question.

Defendants owed a duty to possess and apply the knowledge and to use the skill and care that is

used by a reasonable and prudent football coach in the same or similar circumstances. Defendants

also owed a fiduciary duty to Plaintiff.

212. Defendants breached its duties and were negligent as it relates to the incident in

question. Defendants’ negligence, errors, acts, and omissions include, but are not limited to:

a. Negligently failing to implement or require procedures and/or policies on:

i. how to treat and clear to play student athletes for Plaintiff’s


specific injury;

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 35


ii. how and when to record, maintain, and retain medical
records for student athletes;

iii. how and when to refer/consult with specialists in specialized


medical fields related to Plaintiff’s injury;

iv. how and when pharmaceutical drugs, including local


anesthetics and corticosteroids, should be administered;

v. informing the student athlete of the risks of playing with


injury and the long-term implications;

b. negligently hiring, training, supervision of Defendant TCU’s doctors, athletic


trainers, coaches, and staff who were involved in Plaintiff’s injury;

c. negligently lacking an orthopedist and/or orthopedic surgeon on the football team


staff;

d. negligently lacking the protective equipment necessary for football players who
returned to play after being treated for the injury Plaintiff suffered;

e. pressuring, threatening, humiliating, and harassing Plaintiff to agree to play despite


not being fully healed of his condition; and

f. Other breaches that may be discovered throughout litigation.

213. Defendants’ breaches of duty were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

214. Defendants’ breach of duty proximately caused injury to Plaintiff, which resulted

in Plaintiff suffering past and future damages, including, past and future medical expenses, past

and future lost wages and/or loss of earning capacity, past and future pain and suffering past and

future mental anguish, past and future physical disfigurement, past and future physical impairment,

and past and future aggravation of preexisting condition.

215. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

216. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 36


217. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION SEVENTEEN – NEGLIGENT HIRING, RETENTION,


SUPERVISION, TRAINING, AND MANAGEMENT AGAINST DEFENDANTS GARY
PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND
DEFENDANT DOES 1-10

218. Plaintiff hereby incorporates all prior allegations as though set forth herein.

219. Defendants decided that Team Physicians Dr. Karen Michele Kirk and Dr. Jason

Mogonye as well as Defendants David Gable, Zach LaCross, and Dillon Smith, should be

employed by Defendant TCU for the benefit of the TCU football team.

220. Team Physicians Dr. Karen Michele Kirk and Dr. Jason Mogonye as well as

Defendants David Gable, Zach LaCross, and Dillon Smith were unqualified to handle their duties

and responsibilities, generally, and as it relates to the incident in question.

221. Defendants knew or should have known that hiring and retaining the

aforementioned individuals would create an unreasonable risk of injury to members of their student

athlete body.

222. Defendants failed to use ordinary care in hiring, retaining, supervising, training,

and managing the aforementioned individuals.

223. Defendants’ negligence in hiring, retaining, supervising, training, and managing the

aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.

224. Defendants’ actions and/or omissions were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

225. Defendants’ actions and/or omissions proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 37


past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

226. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

227. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

228. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION EIGHTEEN – NEGLIGENT MISREPRESENTATION AGAINST


DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL
“RUSTY” BURNS, AND DEFENDANT DOES 1-10

229. Plaintiff hereby incorporates all prior allegations as though set forth herein.

230. Defendants represented the following to Plaintiff:

a. TCU’s football program had the nation’s best medical personnel;

b. Any injuries Plaintiff suffered would be treated properly;

c. Plaintiff’s health would be a top priority as it relates to playing


football; and

d. Plaintiff would not be placed in the uncomfortable position of being


forced back on the football field if he was not fully healed of his
injuries.

231. Defendants made the representations in the course of Defendants’ business and in

the course of a transaction in which Defendants had an interest – recruiting Plaintiff for the school’s

football team.

232. Defendants’ representation was a misstatement of facts and opinions. Defendants

did not use reasonable care in communicating the information to Plaintiff.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 38


233. Plaintiff justifiably relied on Defendants’ representations when Plaintiff agreed to

play for the school’s football team.

234. Defendants’ actions and/or omissions were with conscious indifference, malicious,

fraudulent, willful, reckless, and/or wanton.

235. Defendants’ misrepresentations proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

236. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

237. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

238. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION NINETEEN– RES IPSA LOQUITOR AGAINST DEFENDANTS


GARY PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS,
AND DEFENDANT DOES 1-10

239. Plaintiff hereby incorporates all prior allegations as though set forth herein.

240. Defendants directly and proximately caused the injuries and damages suffered by

Plaintiff.

241. It was Defendants’ responsibility to properly care for and treat Plaintiff.

242. That the events causing the injuries and damages to Plaintiff were of a kind which

do not ordinarily occur in the absence of negligence on the part of Defendants.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 39


243. Thus, the doctrine of res ipsa loquitur is applicable as a theory of negligence,

causation and damages in this case and appropriately pled herein.

CAUSE OF ACTION TWENTY– INTENTIONAL INFLICTION OF EMOTIONAL


DISTRESS AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM,
JAMES RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10

244. Plaintiff hereby incorporates all prior allegations as though set forth herein.

245. Plaintiff brings suit against Defendant in Plaintiff’s individual capacity.

246. Defendants’ conduct, as described above, during the incident in question was

intentional and/or reckless.

247. Defendants’ conduct was extreme and outrageous.

248. Defendants’ conduct proximately caused severe emotional distress to Plaintiff.

249. Plaintiff’s severe emotional distress cannot be remedied by any other cause of

action.

250. Defendants’ conduct proximately caused injury to Plaintiff, which resulted in

Plaintiff suffering past and future damages, including, past and future medical expenses, past and

future lost wages and/or loss of earning capacity, past and future pain and suffering past and future

mental anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of preexisting condition.

251. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

252. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

253. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 40


CAUSE OF ACTION TWENTY-ONE – FRAUD AGAINST DEFENDANTS GARY
PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND
DEFENDANT DOES 1-10

254. Plaintiff hereby incorporates all prior allegations as though set forth herein.

255. Defendants represented to Plaintiff that:

a. TCU’s football program had the nation’s best medical personnel;

b. Any injuries Plaintiff suffered would be treated properly;

c. Plaintiff’s health would be a top priority as it relates to playing


football; and

d. Plaintiff would not be placed in the uncomfortable position of being


forced back on the football field if he was not fully healed of his
injuries.

256. Defendants’ representations to Plaintiff were material because the statements were

important to Plaintiff in making his decision to attend Defendants’ school and play for Defendants’

football team. Plaintiff relied on these statements.

257. Defendants’ representation to Plaintiff was a false statement of opinion Defendants

knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on

because of Defendants’ special knowledge.

258. Defendants made the false representations knowing they were false.

259. Defendants made the false representations recklessly, as a positive assertion, and

without knowledge of their truth.

260. Defendants either intended for Plaintiff to rely on these false representations or had

reason to expect Plaintiff would act in reliance on the false representations.

261. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed

to attend Defendants’ school and play for Defendants’ football team.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 41


262. Defendants’ fraudulent conduct proximately caused injury to Plaintiff, which

resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,

past and future lost wages and/or loss of earning capacity, past and future pain and suffering past

and future mental anguish, past and future physical disfigurement, past and future physical

impairment, and past and future aggravation of preexisting condition.

263. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

264. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles

Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

265. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the fraudulent conduct of the Defendants, without any contributing negligence on the

part of the Plaintiff.

CAUSE OF ACTION TWENTY-TWO – FRAUD BY NONDISCLOSURE


(FRAUDULENT CONCEALMENT) AGAINST DEFENDANTS GARY PATTERSON,
DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND DEFENDANT
DOES 1-10

266. Plaintiff hereby incorporates all prior allegations as though set forth herein.

267. Defendants concealed and/or failed to disclose material facts relating to the

treatment plan implemented for Plaintiff.

268. Defendants had a duty to disclose the information to Plaintiff because Defendants

had a fiduciary duty to do so as well as a duty pursuant to their physician-patient relationship with

Plaintiff.

269. The information concealed or not disclosed was material because it affected

Plaintiff’s health, well-being, and future. Specifically, Defendants concealed or did not disclose

information that the continuous injections given to Plaintiff would deteriorate his pelvic area

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 42


causing him great harm. Defendants also concealed or did not disclose information that Plaintiff

was not fully healed at the time they cleared him to return to play.

270. Defendants knew Plaintiff was ignorant of the information and did not have an

equal opportunity to discover the truth.

271. Defendants deliberately remained silent and did not disclose the information to

Plaintiff.

272. By deliberately remaining silent, Defendants intended for Plaintiff to act without

the information.

273. Plaintiff justifiably relied on Defendants’ deliberate silence.

274. By deliberately remaining silent, Defendant proximately caused injury to Plaintiff,

which resulted in Plaintiff suffering past and future damages, including, past and future medical

expenses, past and future lost wages and/or loss of earning capacity, past and future pain and

suffering past and future mental anguish, past and future physical disfigurement, past and future

physical impairment, and past and future aggravation of preexisting condition.

275. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

276. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

277. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

CAUSE OF ACTION TWENTY-THREE – LACK OF INFORMED CONSENT


AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES
RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10

278. Plaintiff was a student athlete and Defendants were the head coach (Patterson) and

assistant coach (Burns) of the TCU football team.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 43


279. Before obtaining Plaintiff’s consent for the treatment plan they implemented for

Kolby’s condition, Defendants did not properly inform Plaintiff of the inherent risks and hazards

associated with such plan. Specifically, Defendants did not inform Plaintiff of the risks and

hazards associated with the use of corticosteroids and local anesthetics nor inform Plaintiff of the

risks and long term implications of returning to play before Plaintiff’s condition had completed

healed.

280. Plaintiff was injured by the occurrence of an undisclosed risk. Specifically, Kolby’s

pelvic area, including the cartilage, bone, muscle, and tissue deteriorated due to Defendants’

actions and/or omissions, including, but not limited to the continuous use of corticosteroids and

anesthetics as well as the premature return to play.

281. A reasonable person would have refused the treatment plan if the risks and hazards

had been disclosed.

282. Defendants’ conduct proximately caused injury to Plaintiff, which resulted in

Plaintiff suffering past and future damages, including, past and future medical expenses, past and

future lost wages and/or loss of earning capacity, past and future pain and suffering past and future

mental anguish, past and future physical disfigurement, past and future physical impairment, and

past and future aggravation of preexisting condition.

283. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

284. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to

exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).

285. All injuries suffered by Plaintiff relating to this incident, past, present and future,

were due to the negligence and gross negligence of the Defendants, without any contributing

negligence on the part of the Plaintiff.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 44


JURY DEMAND

Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

CONDITIONS PRECEDENT

All conditions precedent to Plaintiff’s claim for relief have been performed or have

occurred.

REQUEST FOR DISCLOSURE

Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within

50 days of the service of this request, the information or material described in Rule 194.2.

REQUEST FOR PRODUCTION

Under Texas Rule of Civil Procedure 192, Plaintiff requests that Defendant produce all

medical records in its possession pertinent to Plaintiff Kolby Listenbee, including, but not limited

to its own records on Plaintiff.

PRAYER

For these reasons, Plaintiff asks that the Court issue citation for Defendants to appear and

answer, and that Plaintiff be awarded a judgment against Defendants for the following: actual

damages, exemplary damages, Prejudgment and postjudgment interest, Court costs, attorney fees,

and all other relief to which Plaintiff is entitled to.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 45


Respectfully submitted,

POTTS LAW FIRM, LLP

By: /s/ Derek H. Potts


Derek H. Potts
Texas State Bar No. 24073727
Adam T. Funk
Texas State Bar No. 24058657
3737 Buffalo Speedway
Suite 1900
Houston, Texas 77098
Phone: (713)963-8881
Fax: (713)583-5388
Email: dpotts@potts-law.com
Email: afunk@potts-law.com

TIMOTHY MICAH DORTCH


Texas State Bar No. 24044981
POTTS LAW FIRM, LLP
2911 Turtle Creek Blvd.
Suite 1000
Dallas, Texas 75219
Phone: (214) 396-9427
Email: mdortch@potts-law.com

Counsel for Plaintiff

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE Page 46