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Filed 5/7/2019 4:09 PM

Barbara Sucsy
District Clerk
Lubbock County, Texas

CAUSE NO. 2019534421


TB
REBECCA VILLARREAL ORTIZ, § IN THE 237TH DISTRICT COURT
§
Plaintiff §
§
vs. § IN AND FOR
§
EVAN MATSHES, MD; SAM §
ANDREWS, MD; NATIONAL §
AUTOPSY ASSAY GROUP, §
LLC; and NAAG PATHOLOGY §
LABS, PC §
§
Defendants. § LUBBOCK COUNTY, TEXAS

DEFENDANTS’ MOTION TO DISMISS

TO THE HONORABLE DISTRICT COURT:

Come now, EVAN MATSHES, M.D.; SAM ANDREWS, M.D.;

NATIONAL AUTOPSY ASSAY GROUP, LLC; and NAAG PATHOLOGY

LABS, PC, and file this Motion to Dismiss Plaintiff’s Original Petition and all claims

and causes of action contained therein pursuant to section 27.003 of the Texas Civil

Practice and Remedies Code, known as the Texas Citizens Participation Act

(TCPA).

The defendants move to be awarded all court costs, reasonable attorney’s fees,

and other expenses, and request the opportunity to present evidence of these costs,

fees, and expenses. Defendants also move for appropriate sanctions against the

plaintiff to deter her from bringing similar actions pursuant to section 27.009 of the

DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147437V1


TCPA. In support of their motion to dismiss, the defendants would respectfully show

this Court the following:

I.
PROCEDURAL REQUIREMENTS

A party may seek dismissal of a legal action under the TCPA by filing a

motion to dismiss not later than the 60th day after the date of service of the legal

action. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) (West 2015). Ortiz filed her

original petition on March 4, 2019. Plt.’s Orig. Pet. (on file with this Court). NAAG

Pathology Labs, PC and National Autopsy Assay Group, LLC were served on March

12; Dr. Matshes was served on March 14; Dr. Andrews was served on March 28.

See Returns of Service (on file with this Court). Because this motion is filed within

sixty days of the date of service, it is timely. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.003(b). The filing of this motion stays all discovery until the Court rules on the

motion. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c)

Once a party files a motion to dismiss under the TCPA, the Court must set a

hearing date within 60 days unless docket conditions require a later hearing, good

cause is shown, or the parties agree otherwise. Tex. Civ. Prac. & Rem. Code Ann. §

27.004(a) (West 2015). The hearing must occur within 90 days after the motion is

served, however, regardless of docket conditions, good cause, or agreement. Tex.

Civ. Prac. & Rem. Code Ann. § 27.004(a). After the hearing, the Court must rule on

DEFENDANTS’ MOTION TO DISMISS – PAGE 2 147437V1


the motion within 30 days. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(a) (West

2015).

II.
SUMMARY OF THE ARGUMENT

The present suit is subject to the Texas Citizens Participation Act because it

is based on, related to, or in response to these defendants’ exercise of the right of

free speech and the exercise of the right of association as defined by the statute. As

such, Ortiz is required to meet certain statutory requirements to avoid dismissal.

Because she is not able to do so, her suit against these defendants should be

dismissed.

In particular, Ortiz cannot establish by clear and specific evidence a prima

facie case for each essential element of her claims. As to her claims of the

defendants’ alleged mishandling of remains, she cannot demonstrate that there is a

special relationship between her and the defendants. Without such a special

relationship, the defendants have no duty to Ortiz. Further, because she did not have

a general right to the tissues of the decedent, Ortiz cannot establish by clear and

specific evidence a prima facie case of her claim for a right of possession. Finally,

Ortiz cannot establish a prima facie case on the elements of a conspiracy, particularly

since she cannot establish any underlying tort.

Moreover, even if Ortiz could establish her causes of action as required by the

statute, these defendants have demonstrated they are entitled to the affirmative

DEFENDANTS’ MOTION TO DISMISS – PAGE 3 147437V1


defenses of official immunity and qualified privilege. Accordingly, dismissal of this

legal action is required.

III.
FACTUAL BACKGROUND

A. NAAG provides medical examiner services to Lubbock County.

Dr. Evan Matshes is the managing director of NAAG Pathology Labs, PC

(“NAAG”) and the managing member of National Autopsy Assay Group LLC (“the

LLC”). Ex. A, Matshes Affidavit, ¶¶ 2-3. Dr. Sam Andrews and Dr. Matshes are

employees of National Autopsy Assay Group LLC, but they are subcontracted to

NAAG. Ex. A, Matshes Affidavit, ¶ 3; Ex. B, Andrews Affidavit, ¶ 2.

Pursuant to a contract with Lubbock County, NAAG agreed to provide the

services of a Chief Medical Examiner, including death investigation services as

required by the Texas Code of Criminal Procedure. Ex. A, Matshes Affidavit, ¶¶ 4-

5; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. In August of 2018, Dr. Andrews was

appointed the Interim Acting Chief Medical Examiner pursuant to section 49.25 of

the Texas Code of Criminal Procedure. Ex. B, Andrews Affidavit, ¶ 3; Ex. C, Garcia

Affidavit, ¶ 12. NAAG also agreed to provide the administrative support necessary

for Dr. Andrews to serve as Interim Chief Medical Examiner. Ex. A, Matshes

Affidavit, ¶ 4.

Afterwards, NAAG entered into a second contract with Lubbock County to

provide comprehensive “full spectrum” death investigation services, including

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executive oversight functions typical of a Chief Medical Examiner and oversight

administrative functions typical of the Chief Administrative Officer and Department

Head and Section Leader. Ex. B, Andrews Affidavit, ¶ 4. Under that contract, Dr.

Andrews was appointed the Chief Medical Examiner on December 21, 2018. Ex. B,

Andrews Affidavit, ¶ 4; Ex. C, Garcia Affidavit, ¶ 16; see also, Ex. A, Matshes

Affidavit, ¶ 4 (stating Dr. Andrews served as either Interim or Acting Chief Medical

Examiner of Lubbock County at all relevant times).

B. Death of Elaina Castilleja

According to Ortiz’s petition, Elaina Castilleja suffered traumatic brain injury

as a young child as a result of abuse by her parents, resulting in their prosecution

and punishment. Ex. D, Plt.’s Org. Petition, ¶¶ 12-13. Elaina suffered life-long,

severe disabilities as a result of her traumatic brain injury. Ex. D, Plt.’s Org. Petition,

¶ 15. Ortiz adopted Elaina in 2011. Ex. D, Plt.’s Org. Petition, ¶ 14.

When Elaina was ten, her health rapidly declined. Ex. D, Plt.’s Org. Petition,

¶ 17. She died in the hospital on September 15, 2018, the same day she was admitted.

Ex. D, Plt.’s Org. Petition, ¶¶ 17-19; see also, Ex. A, Matshes Affidavit, ¶ 6; Ex. B,

Andrews Affidavit, ¶ 5. Dr. Andrews and NAAG were notified of Elaina’s death by

an email from a senior forensic technician at the Medical Examiner’s office

employed by Lubbock County. Ex. A, Matshes Affidavit, ¶ 6; Ex. B, Andrews

Affidavit, ¶ 5. NAAG was informed a ten-year old girl suffered a skull fracture at an

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early age and was cared for by her grandmother, Ms. Ortiz. Ex. A, Matshes Affidavit,

¶ 6; Ex. B, Andrews Affidavit, ¶ 5. Ortiz reported to a representative of the Medical

Examiner’s office that Elaina was believed to have been shaken at an early age and

was diagnosed with a skull fracture. Ex. A, Matshes Affidavit, ¶ 6; Ex. B, Andrews

Affidavit, ¶ 5. The incident “was not proven,” but Elaina was blind and had scoliosis,

possibly because of the incident ten years earlier. Ex. A, Matshes Affidavit, ¶ 6; Ex.

B, Andrews Affidavit, ¶ 5. Under these circumstances, and in his role as Lubbock

County Medical Examiner, Dr. Andrews determined an autopsy was necessary. Ex.

B, Andrews Affidavit, ¶ 5; Ex. A, Matshes Affidavit, ¶ 6; see also, Tex. Code of

Crim. Pro. Ann. Art. 49.25, § 6 (West 2018) (requiring an inquest by the medical

examiner under circumstances when a person dies within 24 hours of admission to

a hospital, when a person dies an unnatural death, or when the death was caused by

unlawful means).

Elaina’s remains, therefore, were taken into the custody of the Lubbock

County Medical Examiner’s office. See Ex. D, Plt.’s Org. Petition, ¶ 20. Dr.

Andrews was not in Lubbock and was not available to perform the autopsy. Ex. B,

Andrews Affidavit, ¶ 6; Ex. A, Matshes Affidavit, ¶ 7. Prior to the NAAG contract

with Lubbock County, Dr. Stephen Pustilnik, a pathologist, had performed autopsies

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for the Lubbock County Medical Examiner’s office as an independent contractor. 1

Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. As a part of its contract,

NAAG agreed to provide for the management of the medical aspects of cases

performed by Dr. Pustilnik, including a determination of the cases to which he was

assigned and the scope of medical direction for those autopsies. Ex. A, Matshes

Affidavit, ¶ 4. Representatives of Lubbock County informed Dr. Andrews and Dr.

Matshes there were concerns about the quality of the autopsy work performed by

Dr. Pustilnik, and both Lubbock County and the District Attorney’s office preferred

that Dr. Pustilnik not perform autopsies on criminally suspicious deaths or child

deaths. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. But, because

Dr. Andrews would not be available to perform the autopsy for at least another week,

Dr. Andrews and Dr. Matshes concluded they should ask Dr. Pustilnik to perform

the autopsy. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

As part of a support plan for Dr. Pustilnik, Dr. Andrews provided written

directions and suggestions for the autopsy. Ex. A, Matshes Affidavit, ¶ 7 and Ex. 1;

Ex. B, Andrews Affidavit, ¶ 6 and Ex. 3. Dr. Andrews asked that Dr. Pustilnik

perform a standard, complete pediatric forensic autopsy and to preserve certain

organs and tissue: the brain and dura matter, the cervical spine, obvious skull

1
Dr. Pustilnik has never been an employee or contractor of NAAG. Ex. A, Matshes Affidavit, ¶
8.

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fractures, the eyes and surrounding soft tissues, the thoracolumbar spinal cord, the

heart, the lungs, and liberal portions of tissues. Ex. A, Matshes Affidavit, Ex. 1; Ex.

B, Andrews Affidavit, Ex. 3. If any acute injuries were discovered, Dr. Andrews

recommended Dr. Pustilnik also do full-body soft tissue dissections. Ex. A, Matshes

Affidavit, Ex. 1; Ex. B, Andrews Affidavit, Ex. 3. NAAG provided in-person,

technical support by flying a NAAG Forensic Autopsy Technician to Lubbock. Ex.

A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

The removal and preservation of organs during an autopsy is often necessary

for the correct determination of the cause and manner of death. Ex. A, Matshes

Affidavit, ¶ 10 and Ex. 2 (recommending in cases of suspected head trauma in infants

and young children, e.g., removal of brain and cranial dura (at 206); removal and

examination of the eyes (at 210); examination and potential removal of the spinal

cord (at 210 and 211)); Ex. B, Andrews Affidavit, ¶ 8 and Ex. 4 (same). The organs

and tissues removed at Elaina’s autopsy were necessary to either accurately establish

whether her death was the result of a traumatic brain injury or to rule out a natural

disease process as the cause of her death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B,

Andrews Affidavit, ¶ 8. None of the organs or tissues removed at the autopsy were

used for research or any purpose other than an accurate determination of the cause

and manner of death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B, Andrews Affidavit, ¶ 8.

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NAAG has never had any relationship with Ms. Ortiz. Ex. A, Matshes

Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶ 7. The only connection Dr. Andrews had

to Elaina’s autopsy was in his position as the Interim Lubbock County Medical

Examiner. Ex. B, Andrews Affidavit, ¶ 7. Likewise, the only connection NAAG or

its employees have with the autopsy was its contract to provide medical examiner

services to Lubbock County. Ex. A, Matshes Affidavit, ¶ 9. Neither Dr. Andrews

nor Dr. Matshes has had any communication with Ms. Ortiz. Ex. A, Matshes

Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶7.

All actions of both Dr. Andrews and Dr. Matshes with regard to the Lubbock

County Medical Examiner’s office were performed in connection with their

employment duties with NAAG. Ex. A, Matshes Affidavit, ¶ 3. The only

involvement Dr. Andrews had with respect to the autopsy was his determination that

an autopsy was necessary and his consultation with Dr. Matshes about providing

instructions to Dr. Pustilnik. Ex. B, Andrews Affidavit, ¶ 9. All of his actions with

respect to the autopsy were made in his own professional judgment, were in good

faith, and with the belief they were appropriate in connection with the proper

operation of the Lubbock County Medical Examiner’s office in his role as Interim

Medical Examiner. Ex. B, Andrews Affidavit, ¶ 10.

Likewise, the only involvement Dr. Matshes had with respect to the autopsy

was consultation with Dr. Andrews about providing instructions to Dr. Pustilnik. Ex.

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A, Matshes Affidavit, ¶ 11. He had nothing to do with the performance of the autopsy

or the selection of the organs and tissues to be retained. Ex. A, Matshes Affidavit, ¶

11. All of Dr. Matshes’ actions with respect to Elaina’s autopsy were made using his

own personal judgment, were in good faith, and in the belief that they were

appropriate in connection with the proper operation of the Lubbock County Medical

Examiner’s office pursuant to NAAG’s contract to perform those services. Ex. A,

Matshes Affidavit, ¶ 12.

IV.
EVIDENCE

The TCPA requires a court to consider the pleadings and supporting and

opposing affidavits filed by the parties before ruling on a motion to dismiss. Tex.

Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015). Accordingly, the defendants

submit the following for the Court’s consideration:

Exhibit Document

A Affidavit of Dr. Evan Matshes, with attached exhibits

B Affidavit of Dr. Sam Andrews, with attached exhibits

C Affidavit of Sandra Garcia

D Plaintiffs’ Original Petition

E Defendants’ Original Answer

DEFENDANTS’ MOTION TO DISMISS – PAGE 10 147437V1


V.
ARGUMENTS AND AUTHORITIES

The determination of a TCPA motion to dismiss is a three-step analysis.

Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the movant must show

by a preponderance of the evidence that the TCPA applies to the legal action against

it. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015); Youngkin, 546

S.W.3d at 679. Second, if the movant meets its burden, the nonmovant must establish

by clear and specific evidence a prima facie case for each essential element of its

claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Youngkin, 546 S.W.3d at 679.

Third, if the nonmovant satisfies that requirement, the burden then shifts back to the

movant to prove each essential element of any valid defenses by a preponderance of

the evidence. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546 S.W.3d

at 679-80.

A. The TCPA applies.

The TCPA applies if the legal action is “based on, relates to, or is in response

to” the movant’s “exercise of the right of free speech, right to petition, or right of

association.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2014). Here, the

TCPA applies because Ortiz’s suit is based on, related to, and in response to the

defendants’ exercise of the right to free speech and the exercise of the right of

association.

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1. Exercise of the Right of Free Speech

The statutory definition of the “exercise of the right of free speech” is not fully

coextensive with the constitutional free-speech right protected by the First

Amendment. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex.

2018). Rather, the statute defines the “exercise of the right of free speech” as a

“communication made in connection with a matter of public concern.” Tex. Civ.

Prac. & Rem. Code Ann. 27.001(3) (West 2015). Under the statute then, a right of

free speech has two components: (1) the exercise must be made in a communication

and (2) the communication must be made in connection with a matter of public

concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).

A “communication” is broadly defined, and “includes the making or

submitting of a statement or document in any form or medium.” Tex. Civ. Prac. &

Rem. Code Ann. § 27.001(1) (West 2014); Youngkin, 546 S.W.3d at 680. The plain

language of the statute does not impose any requirement that the form of the

communication be public. Lippincott, 462 S.W.3d at 509. Thus, both public and

private communications are within the scope of the definition. Lippincott, 462

S.W.3d at 509. The TCPA applies to protect employers in actions related to

communications made by their employees and agents. See ExxonMobil Pipeline Co.

v. Coleman, 512 S.W.3d 895, 899-900 (Tex. 2017).

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Next, courts determine whether the communication was made in connection

with a matter of public concern. Lippincott, 462 S.W.3d at 509. A “matter of public

concern” includes, among other things, an issue related to health and safety,

community well-being, the government, and a public official. Tex. Civ. Prac. &

Rem. Code Ann. § 27.001(7).

The TCPA applies here. First, the letter sent to Dr. Pustilnik was a

“communication” as defined by the statute. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.001(1) (stating a “communication” is the making or submitting of a document

in any form or medium). Moreover, the TCPA protects NAAG and National

Autopsy Assay Group, LLC for the communications made by Dr. Matshes and Dr.

Andrews. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d at 899-900.

Second, the communication was made in connection with a matter of public

concern. See Lippincott, 462 S.W.3d at 509. The directions sent to Dr. Pustilnik were

with regard to issues of health or safety (the successful prosecution of an abusive

crime); community well-being (same); the government (the Medical Examiner’s

Office of Lubbock County and its compliance with a Texas statute); and a public

official (instructions from the Chief Medical Examiner). See Tex. Civ. Prac. & Rem.

Code Ann. § 27.001(1). Accordingly, the communication from the Chief Medical

Examiner to the physician performing an autopsy on a child who may have died as

the result of abuse is a matter of public concern. Because the directions to Dr.

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Pustilnik were a communication on a matter of public concern, the defendants

exercised their right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. §

27.001(3). Each cause of action alleged in Ortiz’s suit is based on, related to, and in

response to that exercise of the right to free speech. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.005(b). The TCPA, therefore, applies to this suit. See Tex. Civ. Prac. &

Rem. Code Ann. § 27.005(b).

2. Right of Association

The TCPA also applies to this legal action because it is based on the

defendants’ right of association. The TCPA defines the “exercise of the right of

association” as “a communication between individuals who join together to

collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac.

& Rem. Code Ann. § 27.001(2).

Here, Dr. Andrews and Dr. Matshes concluded they should ask Dr. Pustilnik

to perform the autopsy, despite concerns about his ability. Ex. A, Matshes Affidavit,

¶ 7; Ex. B, Andrews Affidavit, ¶ 6. As part of a support plan for Dr. Pustilnik, Dr.

Andrews, as the Chief Medical Examiner pursuant to Lubbock County’s contract

with NAAG, provided written directions and suggestions for the autopsy. Ex. A,

Matshes Affidavit, ¶ 7 and Ex. 1; Ex. B, Andrews Affidavit ¶ 2, ¶ 6, and Ex. 3. Thus,

the defendants communicated with Dr. Pustilnik to promote or pursue a common

interest: an investigation by autopsy into the death of a child who may have died

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from abuse. Thus, the communication to Dr. Pustilnik constitutes the exercise of the

right of association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). Ortiz’s suit

is based on, related to, and in response to that exercise of the right to association.

See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The TCPA, therefore, applies

to this suit. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).

B. Prima Facie Case

Once a court determines the TCPA is applicable, the burden shifts to the

nonmovant to establish by “clear and specific evidence a prima facie case for each

essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code Ann. §

27.005(c). The word “clear” means “unambiguous,” “sure,” or “free from doubt.” In

re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The word “specific” means “explicit”

or “relating to a particular named thing.” In re Lipsky, 460 S.W.3d at 590.

A “prima facie case” refers to evidence sufficient as a matter of law to

establish a given fact if it is not rebutted or contradicted. In re Lipsky, 460 S.W.3d

at 590. It is the minimum quantum of evidence needed to support a rational inference

that an allegation of fact is true. In re Lipsky, 460 S.W.3d at 590. Although the TCPA

initially demands more information about the underlying claim, it does not impose

an elevated evidentiary standard or categorically reject circumstantial evidence. In

re Lipsky, 460 S.W.3d at 591.

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The TCPA requires “element-by-element, claim-by-claim exactitude” to

make a prima facie case. Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520

S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d). Conclusory allegations and

evidence are insufficient. See Lipsky, 460 S.W.3d at 592-93. Instead, the plaintiff

must provide enough detail to show the factual basis for her claim. Lipsky, 460

S.W.3d at 591.

Ortiz brings several claims for the mishandling of remains. Plt.’s Orig. Pet. ¶¶

31-60. Ortiz also brings a claim for interference with the right to possession for final

disposition. Plt.’s Orig. Pet. ¶¶ 61-64. Finally, Ortiz claims a civil conspiracy among

all of the defendants.

1. Mental Anguish for the Mishandling of Remains

In Texas, there is no general duty to avoid negligently inflicting mental

anguish upon others. SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 543

(Tex. 2018). Rather, Texas law requires a special relationship as the basis for mental

anguish damages when the plaintiff has alleged the defendant negligently

mishandled a corpse. SCI Tex. Funeral Servs., Inc., 540 S.W.3d at 547-48.

No special relationship exists here between Ortiz and the defendants. The

autopsy was performed as a result of the duties the Medical Examiner’s office owes

DEFENDANTS’ MOTION TO DISMISS – PAGE 16 147437V1


to Lubbock County and the State of Texas.2 Because Elaina could have died because

of criminal abuse she suffered early in life, the Texas Code of Criminal Procedure

required an inquest into her death. See Tex. Code of Crim. Pro. Art. 49.25, § 6(a)(2)

and (4) (West 2018) (requiring an inquest by the medical examiner under

circumstances when the death was unnatural or was caused by unlawful means).

Moreover, an inquest was required because Elaina died within twenty-four hours of

admission to the hospital. See Tex. Code of Crim. Pro. Ann. Art. 49.25, § 6(a)(1).

Accordingly, the Medical Examiner’s Office here was required by statute to perform

the autopsy to investigate Elaina’s death. Its only duty was to the State of Texas and

Lubbock County.

Moreover, section 9 of article 49.25 provides that if, “in the opinion of the

medical examiner,” an autopsy is necessary, then it shall “immediately” be

performed by the medical examiner or a deputy. Tex. Code of Crim. Pro. Ann. Art.

49.25, § 9(a). If the medical examiner determines it is unnecessary to conduct a

complete autopsy to ascertain the cause of death, the medical examiner or deputy

may take samples of fluids, tissues, or organs to ascertain the cause of death or

whether a crime has been committed. Tex. Code of Crim. Pro. Art. 49.25, § 9(a).

Importantly, it is up to the medical examiner to determine whether or not a complete

2
This fact distinguishes this case from Terrill v. Harbin, 376 S.W.2d 945, 947 (Tex. Civ. App.—
Eastland 1964, writ dism’d).

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autopsy is necessary and which samples should be taken. See Tex. Code of Crim.

Pro. Ann. Art. 49.25, § 9(a) (“in the opinion of the medical examiner an autopsy is

necessary;” “where a complete autopsy is deemed unnecessary by the medical

examiner”). In short, the Medical Examiner did not need Ortiz’s consent to have a

deputy perform the autopsy. Nor did the Medical Examiner need Ortiz’s consent as

to how that autopsy should be performed to investigate the cause of death. Moreover,

it would be contrary to the duties of the Medical Examiner to follow the wishes of a

family member in conflict with his duties under the statute.

Because there is no special relationship between Ortiz and the defendants, the

defendants owed no legal duty to Ortiz. See Noah v. Univ. of Tex. Med. Branch at

Galveston, 176 S.W.3d 350, 357 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)

(noting that, absent contract, no special relationship would have existed between

relatives of decedents and UTMB when it accepted bodies donated for medical

science).3 Because she cannot establish by clear and specific evidence a prima facie

case on her claims for the alleged mishandling of Elaina’s remains, this Court should

dismiss Ortiz’s legal action. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).

3
Freeman v. Harris County, 183 S.W.3d 885, 890 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied), is distinguishable. There, relying on the test laid out in Lions Eye Bank v. Perry, 56 S.W.3d
872, 877 (Tex. App.—Houston [14th Dist.] 2001, pet. denied), the court found the statute could
serve as a basis for a special relationship. Lions Eye Bank, however, was disapproved by the
supreme court in SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 548 (Tex. 2018).
Moreover, the Houston court’s reading of section 49.25 is faulty; nothing in that statute provides
for a duty owed from the medical examiner’s office to the deceased’s relatives. The statute lays
out the duties the medical examiner owes to the State and the County, not the family.

DEFENDANTS’ MOTION TO DISMISS – PAGE 18 147437V1


2. Interference with the Right to Possession

Similarly, Ortiz cannot establish by clear and specific evidence a prima facie

case on her claim for interference with the right to possession. See Tex. Civ. Prac.

& Rem. Code Ann. § 27.005(c). Next of kin have no right to possess a body other

than for burial or final disposition. Evanston Ins. Co. v. Legacy of Life, Inc., 370

S.W.3d 377, 385 (Tex. 2012). They do not have a general right to the tissues of a

decedent. Evanston Ins. Co., 370 S.W.3d at 385. And, as discussed above, the next

of kin here had no right to exclude the Medical Examiner from Elaina’s tissue

samples when his office was performing a duty required by Texas statute. See

Evanston Ins. Co., 370 S.W.3d at 385 (finding next of kin have no right to exclude,

except to seek damages in some circumstances for acts beyond their consent).

Ortiz cites Texas Health and Safety Code, section 711.002(a) as authority that

she had a right to the possession of Elaina’s tissues. This statute is inapplicable here.

Section 711.002(a) provides a priority for those who have the right to control a

decedent’s remains. Tex. Health & Safety Code Ann. § 711.002(a) (West 2017).

There is no dispute here that Ortiz had the right to control the disposition of Elaina’s

remains. But the statute does not speak to the issue here: whether Ortiz could require

the county Medical Examiner to take less tissue during his inquest.

Because next of kin do not have a general right to the tissues of a decedent,

Ortiz cannot establish by clear and specific evidence a prima facie case for each

DEFENDANTS’ MOTION TO DISMISS – PAGE 19 147437V1


essential element of her claim for a right of possession. See Evanston Ins. Co., 370

S.W.3d at 385; Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Accordingly, this

Court should dismiss her legal action on this claim. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.005(c).

3. Conspiracy

The elements of a claim for conspiracy are: (1) a combination of two or more

persons; (2) who seek to accomplish an object or course of action; (3) the persons

reach a meeting of the minds on the course of action; (4) one or more unlawful, overt

acts are taken in pursuance of the object or course of action; and (5) damages occur

as a proximate result. First United Pentecostal Church of Beaumont v. Parker, 514

S.W.3d 214, 222 (Tex. 2017).

A conspiracy requires a specific intent to agree to accomplish something

unlawful or to accomplish something lawful by unlawful means. First United

Pentecostal Church of Beaumont, 514 S.W.3d at 222. The gist of a civil conspiracy

is the injury the defendants intended to be caused. Triplex Commc’ns, Inc. v. Riley,

900 S.W.2d 716, 720 (Tex. 1995). Moreover, a corporate agent cannot conspire with

its corporation while acting in his corporate capacity. Texas-Ohio Gas, Inc. v.

Mecom, 28 S.W.3d 129, 138 (Tex. App.—Texarkana 2000, no pet.). A defendant’s

liability for civil conspiracy depends on participation in an underlying tort;

DEFENDANTS’ MOTION TO DISMISS – PAGE 20 147437V1


conspiracy, therefore, is a derivative tort. Wooters v. Unitech Internat’l, Inc., 513

S.W.3d 754, 762 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

Here, Ortiz cannot establish by clear and specific evidence a prima facie case

for any essential element of her conspiracy claim. See First United Pentecostal

Church of Beaumont, 514 S.W.3d at 222; Tex. Civ. Prac. & Rem. Code Ann. §

27.005(c). Moreover, because she cannot establish a prima facie case on her other

causes of action, there are no underlying torts on which to base the derivative tort of

conspiracy. See Wooters, 513 S.W.3d at 762. Accordingly, this Court should dismiss

Ortiz’s legal action for conspiracy. See Tex. Civ. Prac. & Rem. Code Ann. §

27.005(c).

C. The defendants have established defenses to the legal action.

Even if Ortiz has brought forth clear and specific evidence to establish a prima

facie case, dismissal is still appropriate because the defendants have brought forth

evidence to prove each essential element of valid defenses by a preponderance of

the evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546

S.W.3d at 679-80.

1. Official Immunity

Official immunity is a common law defense that protects government officers

from personal liability in performing discretionary duties in good faith within the

scope of their authority. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Medical

DEFENDANTS’ MOTION TO DISMISS – PAGE 21 147437V1


examiners are entitled to official immunity. Putthoff v. Ancrum, 934 S.W.2d 164,

169-70 (Tex. App.—Fort Worth 1996, writ denied).

Moreover, a private party can assert official immunity if the private party

contracts with a public official to perform governmental duties. Guerrero v. Tarrant

County Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998,

pet. denied) (holding a private company contracting with the medical examiner’s

office to perform a governmental duty was entitled to assert the defense of official

immunity); Putthoff, 934 S.W.2d at 169 n.7 (finding official immunity extends to a

private party under contract with the county to perform functions of the medical

examiner’s office).

One is entitled to official immunity from suit arising out of the performance

of (1) discretionary duties; (2) in good faith; (3) when acting within the scope of his

authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994);

Guerrero, 977 S.W.2d at 832. If, however, the acts of an official are not lawfully

authorized, then a suit against him is not a suit against the State, and the individual

is not immune. Guerrero, 977 S.W.2d at 832.

a. Defendants’ actions were discretionary.

First, official immunity extends to an action or decision that is discretionary;

ministerial acts, on the other hand, do not receive protection. Kassen, 887 S.W.2d at

9. Ministerial acts are those that the law prescribes and defines the duties to be

DEFENDANTS’ MOTION TO DISMISS – PAGE 22 147437V1


performed with such precision and certainty that nothing is left to the exercise of

discretion or judgment. City of Lancaster, 883 S.W.2d at 654. But, when the act to

be done involves the exercise of discretion or judgment, it is not ministerial. City of

Lancaster, 883 S.W.2d at 654. If an action involves personal deliberation, decision,

and judgment, then it is discretionary. City of Lancaster, 883 S.W.2d at 654. Courts

consider several factors to determine when a government employee’s acts involve

“governmental” discretion:

1. The nature and importance of the function that the employee is performing;

2. The extent to which passing judgment on the exercise of discretion by the


employee will amount to passing judgment on the conduct of a coordinate
branch of government or an agency;

3. The extent to which the imposition of liability would impair the employee’s
free exercise of discretion;

4. The extent to which financial responsibility will fall on the employee;

5. The likelihood that harm will result to the public if the employee acts;

6. The nature and seriousness of the type of harm that may be produced; and

7. The availability to the injured party of other remedies and forms of relief.

Kassen, 887 S.W.2d at 12, n.8; Putthoff, 934 S.W.2d at 170. Applying these factors

to the performance of an autopsy, one court has found:

In conducting the autopsy of Ms. Ancrum, [the doctors] were


performing the important governmental function of investigating the
cause of her death for the purpose of detecting the commission of a
possible crime. This is a necessary and critical function in the
investigation and prosecution of crime. Had the autopsy revealed that a

DEFENDANTS’ MOTION TO DISMISS – PAGE 23 147437V1


crime occurred, it would have served as a fundamental step to
successfully prosecuting the offender and securing a fair trial for the
accused. The constant threat of lawsuits would unduly burden [the
medical examiner] and his staff in performing this function and would
inevitably influence cause of death determinations. This would
seriously harm the public by interfering with the efforts of law
enforcement to investigate crime and hinder the search for truth in the
criminal justice process.

Putthoff, 934 S.W.2d at 170. Thus, governmental discretion is exercised in

performing an autopsy. Putthoff, 934 S.W.2d at 171-72.

NAAG agreed to provide medical examiner services, including death

investigation services, under a contract with Lubbock County. Ex. A, Matshes

Affidavit, ¶¶ 4-5; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. As noted above,

medical examiners are entitled to official immunity. Putthoff v. Ancrum, 934 S.W.2d

164, 169-70 (Tex. App.—Fort Worth 1996, writ denied).

Further, as a part of its contract, NAAG agreed to manage the medical aspects

of autopsies performed by Dr. Pustilnik, including the scope of medical direction for

those autopsies. Ex. A, Matshes Affidavit, ¶ 4. In determining the scope and medical

direction of those autopsies, including Elaina’s, the defendants exercised discretion

because those determinations involved personal deliberation, decision, and

judgment. See City of Lancaster, 883 S.W.2d at 654. And, acting under contract to

perform medical examiner services, NAAG4, Dr. Andrews, and Dr. Matshes were

4
Official immunity can apply to an entity, such as NAAG, as well as to an individual. See
Guerrero, 977 S.W.2d at 834 (holding Mortician Services established as a matter of law its

DEFENDANTS’ MOTION TO DISMISS – PAGE 24 147437V1


performing a discretionary function when they gave Dr. Pustilnik suggestions as to

the tissues and organs to preserve in the autopsy. Such decisions of a party contracted

to provide medical examiner services are not ministerial. Accordingly, the

defendants meet the first element of the defense of official immunity. See City of

Lancaster, 883 S.W.2d at 653.

b. The defendants acted in good faith.

Good faith in official immunity is measured by objective legal reasonableness.

City of Lancaster, 883 S.W.2d at 656. The good faith prong of official immunity is

met when a defendant shows that a reasonably prudent person in the same of similar

circumstances would have taken the same actions. Guerrero, 977 S.W.2d at 834. To

controvert the defendant’s evidence, the plaintiff must do more than show a

reasonably prudent person would not have taken the same action. Guerrero, 977

S.W.2d at 834. Instead, the plaintiff must show that no reasonable person in the

defendant’s position could have thought the facts justified the defendant’s actions.

Guerrero, 977 S.W.2d at 834. The trial court must focus on the reasonableness of

what the defendant could have believed and not what a reasonably prudent person

would have done. Guerrero, 977 S.W.2d at 834. “In other words, controverting

entitlement to official immunity). Moreover, National Autopsy Assay Group LLC is entitled to
official immunity if its employees are. See Rice University v. Thomas, No. 01-14-00908-CV, 2015
WL 3522915, at *7 (Tex. App.—Houston [1st Dist.] June 4, 2015, no pet.) (mem. op.) (finding
binding precedent from the supreme court “is entirely clear” that a private entity may assert any
affirmative defense its employee has to liability).

DEFENDANTS’ MOTION TO DISMISS – PAGE 25 147437V1


evidence on good faith cannot be based on a general negligence standard.” Guerrero,

977 S.W.2d at 834.

Here, NAAG, Dr. Matshes, and Dr. Andrews acted in good faith, believing

their actions with regard to Elaina’s autopsy were appropriate in connection with the

proper operation of the Medical Examiner’s office. Ex. A, Matshes Affidavit, ¶ 12;

Ex. B, Andrews Affidavit, ¶ 10. Moreover, Dr. Matshes and Dr. Andrews have

referenced an article in their affidavits demonstrating several of the organs and

tissues they requested be preserved in the autopsy were standard requests when a

child is a suspected victim of abuse. Ex. A, Matshes Affidavit, ¶ 10 and Ex. 2

(recommending in cases of suspected head trauma in infants and young children,

e.g., removal of brain and cranial dura (at 206); removal and examination of the eyes

(at 210); examination and potential removal of the spinal cord (at 210 and 211)); Ex.

B, Andrews Affidavit, ¶ 8 and Ex. 4 (same).

The organs removed at Elaina’s autopsy were necessary to either accurately

establish whether her death was the result of a traumatic brain injury or to rule out a

natural disease process as the cause of her death. Ex. A, Matshes Affidavit, ¶ 10; Ex.

B, Andrews Affidavit, ¶ 8. None of the organs or tissues removed at the autopsy

were used for any purpose other than an accurate determination of the cause and

manner of death. Ex. A, Matshes Affidavit, ¶ 10; Ex. B, Andrews Affidavit, ¶ 8.

Because the defendants here have shown a reasonably prudent person in the same or

DEFENDANTS’ MOTION TO DISMISS – PAGE 26 147437V1


similar circumstances would have taken the same actions, the good faith prong of

official immunity has been met. See Guerrero, 977 S.W.2d at 834.

c. The defendants acted in the scope of their authority.

Finally, an official must be acting within the scope of his authority in order

for a court to find him immune from suit. City of Lancaster, 883 S.W.2d at 658. An

official acts within the scope of his authority if he is discharging duties generally

assigned to him. City of Lancaster, 883 S.W.2d at 658.

Here, all actions of both Dr. Andrews and Dr. Matshes with regard to the

Lubbock County Medical Examiner’s office were performed in connection with

their employment duties with NAAG. Ex. A, Matshes Affidavit, ¶ 3. Moreover,

NAAG agreed to provide the services of a Chief Medical Examiner, including death

investigation services as required by the Texas Code of Criminal Procedure. Ex. A,

Matshes Affidavit, ¶¶ 4-5; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. NAAG also

agreed to provide for the management of medical aspects of cases performed by Dr.

Pustilnik, including a determination of the cases to which he was assigned and the

scope of medical direction for those autopsies. Ex. A, Matshes Affidavit, ¶ 4.

Because the defendants here were acting within the scope of their authority,

they have met the third requirement for a court to find them immune from suit. City

of Lancaster, 883 S.W.2d at 658. As the defendants have met all three elements, they

have demonstrated by a preponderance of the evidence their entitlement to official

DEFENDANTS’ MOTION TO DISMISS – PAGE 27 147437V1


immunity. See City of Lancaster, 883 S.W.2d at 653. Accordingly, even if Ortiz

establishes a prima facie case, the case should be dismissed because these defendants

are entitled to the affirmative defense of official immunity. See Tex. Civ. Prac. &

Rem. Code Ann. § 27.005(d).

2. Qualified Privilege

A defendant enjoys a qualified privilege when a communication is made in

good faith and the author, recipient, or a third person has an interest that is

sufficiently affected by the communication. Burbage v. Burbage, 447 S.W.3d 249,

254 (Tex. 2014). The privilege applies when the speaker has a common interest with

the other person, or with reference to a subject in which the speaker has a duty to

communicate to the other person. Levine v. Steve Scharn Custom Homes, Inc., 448

S.W.3d 637, 648 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). “A qualified

privilege attaches to statements made under circumstances in which any one of

several persons having a common interest in a particular subject matter may

reasonably believe that facts exist that another, sharing that common interest, is

entitled to know.” Holloway v. Tex. Med. Ass’n, 757 S.W.2d 810, 813 (Tex. App.—

Houston [1st Dist.] 1998, writ denied). Further, communications given voluntarily,

rather than in response to a request for information, are privileged if the relationship

between the parties is such that it is within generally accepted standards of conduct

DEFENDANTS’ MOTION TO DISMISS – PAGE 28 147437V1


to furnish the information for the protection of the interest of the recipient. Levine,

S.W.3d at 648.

A party claiming a qualified privilege must use the privilege in a lawful

manner and for a lawful purpose. Iroh v. Igwe, 461 S.W.3d 253, 264 (Tex. App.—

Dallas 2015, pet. denied). The communication must be without malice. Iroh, 461

S.W.3d at 264. Once the privilege is established, it falls on Ortiz to prove, with clear

and specific evidence, that the defendant made the statements with actual malice.

See Burbage, 447 S.W.3d at 254. Actual malice is a statement made with knowledge

of its falsity or with reckless disregard for the truth. Saudi v. Brieven, 176 S.W.3d

108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Where a statement is

qualifiedly privileged, the law presumes good faith and a want of malice. See

Holloway, 757 S.W.2d at 814. Further, an uncontroverted affidavit indicating the

statements at issue were not made with malice is sufficient to negate malice as a

matter of law. See Saudi, 176 S.W.3d at 118.

Here, when Dr. Matshes, and Dr. Andrews, on behalf of NAAG, made the

recommendations concerning Elaina’s autopsy, they and Dr. Pustilnik had an interest

in the autopsy being performed appropriately. In the past, Lubbock County and the

District Attorney’s office had raised concerns about the quality of the autopsies

performed by Dr. Pustilnik. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit,

¶ 6. In an effort to support Dr. Pustilnik, Dr. Andrews provided the letter containing

DEFENDANTS’ MOTION TO DISMISS – PAGE 29 147437V1


written directions and suggestions for the autopsy. Ex. A, Matshes Affidavit, ¶ 7 and

Ex. 1; Ex. B, Andrews Affidavit, ¶ 6 and Ex. 3. Under these circumstances, there

was a common interest in Elaina’s autopsy, and Dr. Pustilnik was entitled to know

what was expected of him by the Interim Chief Medical Examiner in the

performance of that autopsy. See Levine, 448 S.W.3d at 648; Holloway, 757 S.W.2d

at 813. Moreover, the information was furnished to protect the interests of Dr.

Pustilnik and to avoid the problems with the quality of his work that had arisen in

the past. See Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

Accordingly, the defendants have demonstrated by a preponderance of evidence that

the defense of a qualified privilege applies. See Burbage, 447 S.W.3d at 254.

Moreover, Ortiz cannot establish the defendants acted with malice. Rather,

both Dr. Matshes and Dr. Andrews stated in their affidavits that all of their actions

with respect to the autopsy were in good faith. Ex. A, Matshes Affidavit, ¶ 12; Ex.

B, Andrews Affidavit, ¶ 10. Accordingly, even if Ortiz has established a prima facie

case, the case should be dismissed because these defendants are entitled to a

qualified privilege to make the communication. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.005(d).

3. Dr. Matshes has no individual liability.

Finally, Dr. Matshes has no individual liability for the allegedly tortious

actions of National Autopsy Assay Group LLC or NAAG Pathology Labs, PC. A

DEFENDANTS’ MOTION TO DISMISS – PAGE 30 147437V1


corporate officer’s acts on the corporation’s behalf are generally deemed corporate

acts. ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997). A corporate

officer or director is not liable for inducing the corporation to interfere with a

contract, as long as he acts in good faith on the corporation’s behalf. See ACS Inv’rs,

Inc., 943 S.W.2d at 432. To succeed, the plaintiff must show that the officer acted

in a manner so contrary to the corporation’s best interests that his actions could only

have been motivated by personal interest; a corporate officer’s mixed motives to

benefit both himself and the corporation are insufficient to establish liability. ACS

Inv’rs, Inc., 943 S.W.2d at 432. The mere existence of a personal stake in the

outcome is insufficient to show that the agent committed an act of willful or

intentional interference. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex.

1998). Instead, the plaintiff must prove the corporation’s agent acted willfully and

intentionally to serve his own personal interests at the corporation’s expense. Powell

Indus., Inc., 985 S.W.2d at 457.

Courts also consider the corporation’s evaluation of the agent’s actions, since

the corporation is a better judge of its own best interest than a jury or court. Powell

Indus., Inc., 985 S.W.2d at 457. If a corporation does not complain about its agent’s

actions, then the agent cannot be held to have acted contrary to the corporation’s

interests. Powell Indus., Inc., 985 S.W.2d at 457.

DEFENDANTS’ MOTION TO DISMISS – PAGE 31 147437V1


Dr. Matshes is the managing director of NAAG and the managing member of

the LLC. Ex. A, Matshes Affidavit, ¶¶ 1-2. All communications Dr. Matshes had

related to the autopsy in question involved the proper operation of the Medical

Examiner’s office in connection with NAAG’s duties under the contract with

Lubbock County to provide administrative oversight. Ex. A, Matshes Affidavit, ¶

11. All of Dr. Matshes actions related to the Castilleja autopsy were in the course

and scope of his employment duties with NAAG related to the proper operation of

the Lubbock County Medical Examiner’s office. See Matshes Affidavit ¶¶ 3, 12.

This evidence demonstrates Dr. Matshes acted in good faith on NAAG’s behalf. See

ACS Inv’rs, Inc., 943 S.W.2d at 432. There is no evidence Dr. Matshes acted in a

manner contrary to NAAG’s best interests. See ACS Inv’rs, Inc., 943 S.W.2d at 432.

Accordingly, Dr. Matshes has no individual liability for the alleged tortious activity

of NAAG or the LLC because his acts on the corporation’s behalf are the corporate

acts of NAAG. The LLC had no involvement with the acts or omissions of which

Ortiz complained. See ACS Inv’rs, Inc., 943 S.W.2d at 432.

Ortiz alleges National Autopsy Assay Group, LLC and NAAG Pathology

Labs, PC were inadequately capitalized and were organized and operated as a mere

tool or business conduit as to each other and for Dr. Matshes. In other words, Ortiz

seeks to “pierce the corporate veil” and hold Matshes individually liable because the

LLC and NAAG are allegedly inadequately capitalized. Neither entity is

DEFENDANTS’ MOTION TO DISMISS – PAGE 32 147437V1


undercapitalized and Ortiz has no evidence to the contrary. Furthermore, inadequate

capitalization alone is not sufficient to establish alter ego and is merely one of the

factors to determine the application of the alter ego doctrine. Ramirez v. Hariri, 165

S.W.3d 912, 916 (Tex. App.—Dallas, 2005, no pet.). Alter ego applies when there

is such unity between a corporation and an individual that the separateness of the

corporation has ceased and holding only the corporation liable would result in

injustice. It is shown from the total dealings that the corporation and the individual,

including the degree to which corporate formalities have been followed and

corporate and individual property have been kept separately, the amount of financial

interest, ownership and control the individual maintains over the corporation, and

whether the corporation has been used for personal purposes. The rationale of alter

ego is “if the shareholders themselves disregard the separation of the corporate

enterprise, the law will also disregard it so far as necessary to protect individual and

corporate creditors.” Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.—1986).

See also, Texas Pattern Jury Charges - Business, Consumer, Insurance and

Employment PJC 108.2 (2018). Ortiz has not alleged, much less can she prove, the

other factors.

Ortiz’s claim of alter ego must fail because she has pleaded inadequate

capitalization as her sole ground and because there is no evidence of inadequate

capitalization or the other factors necessary to apply the doctrine of alter ego and

DEFENDANTS’ MOTION TO DISMISS – PAGE 33 147437V1


pierce the corporate veil. Furthermore, the LLC has no relationship to the acts or

omissions of which Ortiz complains.

Because Dr. Matshes has established by a preponderance of the evidence that

he has a valid defense, Ortiz’s claims against him should be dismissed. See Tex. Civ.

Prac. & Rem. Code Ann. § 27.005(d).

D. Attorneys’ Fees, Costs, and Sanctions

Upon granting a motion to dismiss, a court must award court costs, reasonable

attorney’s fees, and other expenses incurred in defending the action as justice and

equity may require. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). As to court

costs, the language of the statute does not afford the trial court discretion to

determine what court costs to award. Urquhart v. Calkins, No. 01-17-00256-CV,

2018 WL 3352919, at *5 (Tex. App.—Houston [1st Dist.] July 10, 2018, not pet.)

(mem. op.). Rather, the statute simply requires the trial court to award costs to the

moving party. Urquhart, 2018 WL 3352919, at *5.

However, the reasonableness of an attorney’s fee rests within the trial court’s

discretion. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). The trial court is

required, upon dismissal, to award to the moving party its reasonable attorney’s fees.

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1). A reasonable fee is not excessive

or extreme, but rather moderate or fair. Sullivan, 488 S.W.3d at 299. These fees and

DEFENDANTS’ MOTION TO DISMISS – PAGE 34 147437V1


costs must be awarded even if only some of Ortiz’s claims are dismissed. See D

Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 442 (Tex. 2017).

As to expenses, a trial court is required to award expenses under the TCPA

only to the extent that the court concludes that justice and equity require it. Urquhart,

2018 WL 3352919, at *5. The determination of an award of expenses is committed

to the trial court’s discretion. Urquhart, 2018 WL 3352919, at *5.

Finally, Section 27.009 instructs the trial court to determine the amount of

sanctions sufficient to deter the claimant from bringing similar actions. Cox Media

Group, LLC v. Joselevitz, 524 S.W.3d 850, 865 (Tex. App.—Houston [14th Dist.]

2017, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2) (West 2014). Like

the reasonableness of attorney’s fees allowed by the statute, the amount of sanctions

sufficient to deter the claimant is a question of fact that rests within the trial court’s

discretion. See Cox Media Group, LLC, 524 S.W.3d at 859, 865.

Accordingly, upon dismissal of any of Ortiz’s causes of action, the defendants

request this Court allow the defendants to put on evidence of their costs and

attorneys’ fees, and that this Court then award the defendants their attorneys’ fees

and expenses, as well as sanctions appropriate to deter further actions of this nature.

DEFENDANTS’ MOTION TO DISMISS – PAGE 35 147437V1


VI.
CONCLUSION AND PRAYER

First, the TCPA applies here because Ortiz’s suit is based on, related to, or in

response to these defendants’ exercise of the right of free speech and the exercise of

the right of association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).

Second, Ortiz cannot establish by clear and specific evidence a prima facie

case for each essential element of her claims. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(c). As to her claims of the defendants’ alleged mishandling of remains, she

cannot demonstrate that there is a special relationship between her and the

defendants. See SCI Tex. Funeral Servs., Inc., 540 S.W.3d at 547-48. Without such

a special relationship, the defendants have no duty to Ortiz. Further, because she did

not have a general right to the tissues of a decedent, Ortiz cannot establish by clear

and specific evidence a prima facie case of her claim for a right of possession. See

Evanston Ins. Co., 370 S.W.3d at 385. Finally, Ortiz cannot establish a prima facie

case on the elements of a conspiracy, particularly since she cannot establish any

underlying tort. See First United Pentecostal Church of Beaumont, 514 S.W.3d at

222; Wooters, 513 S.W.3d at 762.

Third, even if Ortiz could establish by clear and specific evidence a prima

facie case on each of her causes of action, these defendants have established by a

preponderance of the evidence that they are entitled to the affirmative defenses of

DEFENDANTS’ MOTION TO DISMISS – PAGE 36 147437V1


official immunity and a qualified privilege. See City of Lancaster, 883 S.W.2d at

653; Burbage, 447 S.W.3d at 254.

Accordingly, these defendants are entitled to dismissal of Ortiz’s suit under

the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005.

WHEREFORE, PREMISES CONSIDERED, Defendants EVAN MATSHES,

M.D.; SAM ANDREWS, M.D.; NATIONAL AUTOPSY ASSAY GROUP, LLC;

and NAAG PATHOLOGY LABS, PC respectfully request that, on the hearing of

this Motion, this Court enter an order:

1. Granting their Motion to Dismiss pursuant to chapter 27 of the Texas Civil


Practice and Remedies Code;

2. Awarding defendants their attorneys’ fees and court costs;

3. Awarding sanctions against Ortiz sufficient to deter her from bringing


similar actions; and

4. Awarding such other and further relief to which the defendants may show
themselves justly entitled, either at law or in equity.

DEFENDANTS’ MOTION TO DISMISS – PAGE 37 147437V1


Respectfully submitted,

RINEY & MAYFIELD LLP


Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509

By_______/s/Thomas C. Riney_____________
Thomas C. Riney

ATTORNEYS FOR DEFENDANTS DR. EVAN MATSHES,


NATIONAL AUTOPSY ASSAY GROUP, LLC, AND NAAG
PATHOLOGY LABS, P.C.

AND

JACKSON WALKER LLP


Jon Mark Hogg – TBN 00784286
jmhogg@jw.com
135 W. Twohig Suite C
San Angelo, Texas 76903

By_______/s/Jon Mark Hogg_____________


Jon Mark Hogg

ATTORNEY FOR DEFENDANT DR. SAM ANDREWS

DEFENDANTS’ MOTION TO DISMISS – PAGE 38 147437V1


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Defendants’ Motion to Dismiss
was this 7th day of May, 2019, served on all known counsel of record in accordance with
the Texas Rules of Civil Procedure as follows:

Travis S. Ware VIA ELECTRONIC FILING


Benjamin P. Garcia
Crystal A. Link
office@waregarcialaw.com
WARE & GARCIA, PLLC
1915 Broadway
Lubbock, Texas 79401

ATTORNEYS FOR PLAINTIFF

Jon Mark Hogg VIA ELECTRONIC FILING


jmhogg@jw.com
JACKSON WALKER LLP
135 W. Twohig Suite C
San Angelo, Texas 76903

ATTORNEY FOR DEFENDANT


DR. SAM ANDREWS

________/s/Thomas C. Riney_______________
Thomas C. Riney

DEFENDANTS’ MOTION TO DISMISS – PAGE 39 147437V1


 
 
 
 
 

Exhibit A 
   
CAUSE NO. 2019534421

REBECCA VILLARREAL ORTIZ, § IN THE 237TH DISTRICT COURT


§
Plaintiff §
§
vs. §
§ IN AND FOR
EVAN MATSHES, MD, SAM ANDREWS, §
MD, NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND NAAG PATHOLOGY §
LABS, PC, §
§
Defendants. § LUBBOCK COUNTY, TEXAS

AFFIDAVIT OF EVAN MATSHES, M.D.

STATE OF CALIFORNIA §
§
COUNTY OF SAN DIEGO §

Before me, the undersigned authority, on this day personally appeared EVAN MATSHES,

M.D., who is personally known to me. After being duly sworn he deposed and stated as follows:

1. My name is Evan Matshes, M.D. I am over the age of 18, and I am legally

competent to make this affidavit. I have personal knowledge of the facts stated herein, and those

facts are true and correct.

2. I am the managing director ofNAAG Pathology Labs, PC, a professional medical

corporation incorporated in the State of California and having its principal place of business in San

Diego, California. I am licensed to practice medicine in California, Florida, and New Mexico. I

hold certification in anatomic pathology and forensic pathology from the American Board of

Pathology. I am a Fellow in the College of American Pathologists. I also hold specialty

certification in anatomic pathology as a Fellow of the Royal College of Physicians and Surgeons

of Canada.

AFFIDAVIT OF EVAN MATSHES, M.0. - PAGE 1 147335vl


3. National Autopsy Assay Group LLC ("the LLC") is a limited liability company

established in the State of Delaware. I am the managing member of the LLC. Dr. Sam Andrews

and I are employees of the LLC but are subcontracted to NAAG Pathology Labs, PC ("NAAG").

All actions of Dr. Andrews or myself relative to the Lubbock County Medical Examiner's Office

have been performed in connection with our employment duties with NAAG.

4. NAAG entered into a contract with Lubbock County effective August 5, 2018 to

provide the services of an Interim or Acting Chief Medical Examiner after the Chief Medical

Examiner for Lubbock County resigned. Under the terms of that agreement, Dr. Sam Andrews

served as Interim or Acting Chief Medical Examiner of Lubbock County. Among the services

NAAG contracted to provide was management of the medical aspects of cases performed by Dr.

Pustilnik, including a determination of the cases to which he was assigned and the scope and

medical direction of those autopsies. NAAG agreed to provide administrative support necessary

for Dr. Andrews to provide services as Interim Chief Medical Examiner of Lubbock County. This

agreement ended September 30, 2018 when it was replaced by another agreement.

5. The services NAAG provides to Lubbock County are death investigation services

conducted under Chapter 49 of the Texas Code of Criminal Procedure.

6. On September 15, 2018, Dr. Andrews and NAAG were notified by email of a report

of a death by a senior forensic technician at the Lubbock County Medical Examiner's office, James

Kason McGinnis, an employee of Lubbock County. According to that email, the Medical

Examiner's office had been contacted about the death of Elaina Castilleja by the house supervisor

at Covenant Women's & Children's Hospital in Lubbock. McGinnis was an employee of Lubbock

County. According to the information provided, the decedent was a 10-year old girl who had

incurred a skull fracture at an early age and was removed from the care of the decedent's mother.

AFFIDAVIT OF EvAN MATSHES, M.D. -PAGE 2 147335vl


The decedent's grandmother, Rebecca Ortiz, was granted care of the decedent. A brief medical

history of the child was provided by the hospital house supervisor. The history indicated that the

child was pronounced dead less than 24 hours after admission to the hospital. A representative of

the Lubbock County Medical Examiner's office spoke with the grandmother on September 15,

2018, and she advised that the decedent was believed to have been shaken at an early age, possibly

around or before the age of one and was diagnosed with a skull fracture at that time. The

grandmother advised that "the incident was not proven," but that the decedent was blind, had

scoliosis with the possibility that it was because of the incident, which occurred in 2008. Dr.

Andrews, as Lubbock County Medical Examiner, determined that under the circumstances, an

autopsy was necessary.

7. Dr. Andrews was not in Lubbock and was not available to perform the autopsy.

Prior to the time of the NAAG contract with Lubbock County, Dr. Stephen Pustilnik, a pathologist,

had performed autopsies for the Lubbock County Medical Examiner's office as an independent

contractor. Representatives of Lubbock County had advised me they had concerns about the

quality of the autopsy work performed by Dr. Pustilnik, and we were told that it was the preference

of Lubbock County and the District Attorney's office that he not perform autopsies on criminally

suspicious deaths, and child deaths. Dr. Andrews and I discussed the situation and concluded that

we should ask Dr. Pustilnik to perform the autopsy, as Dr. Andrews would not be available to do

so personally until August 22, 2018. Therefore, a support plan was devised that included Dr.

Andrews providing Dr. Pustilnik with written directions and suggestions for autopsy performance.

Furthermore, NAAG provided direct, in-person technical support for Dr. Pustilnik by way of

NAAG Forensic Autopsy Technician, Lisa Hang, who was flown to Lubbock from San Diego.

AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 3 147335vl


The directions to Dr. Pustilnik from Dr. Andrews is Exhibit 1 to this affidavit. Exhibit 1 has been

redacted to protect the confidentiality of another case unrelated to the Castilleja autopsy.

8. Dr. Pustilnik has never been an employee or contractor of NAAG.

9. NAAG has never had any relationship with Rebecca Villarreal Ortiz. The only

connection ofNAAG or its employees related to the autopsy of Elaina Castilleja was in connection

with its contract to provide services to Lubbock County in the Medical Examiner's office. I had

no communication with Ms. Ortiz.

10. I am familiar with the standards followed by medical examiners in Texas and

various other states. The removal and preservation of organs during an autopsy is often necessary

for the correct determination of both the cause and manner of death. I attach hereto as Exhibit 2

an article titled "National Association of Medical Examiners Position Paper: Recommendations

for Post-mortem Assessment of Suspected Head Trauma in Infants and Young Children." This

article appeared in Volume IV of the publication Academic Forensic Pathology: The Official

Publication of the National Association of Medical Examiners beginning at Page 206. It was

published in 2014. This publication is considered a reliable authority by those practicing in the

specialty of forensic pathology. The allegations of Ms. Ortiz that the removal of certain organs

was unnecessary are incorrect. The organs that were removed at autopsy were necessary to either

accurately establish whether the death was the result of a traumatic brain injury or to rule out a

natural disease process as the cause of death. None of the organs or tissue removed at autopsy

were used for research or any purpose other than an accurate determination of the cause and

manner of death.

11. My only involvement with respect to the Castilleja autopsy was consultation with

Dr. Andrews about providing instructions to Dr. Pustilnik because of the concerns about Dr.

AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 4 147335Vl


Pustilnik's ability that were communicated to me by representatives of Lubbock County. I have

subsequently acted as a consulting pathologist for several of the retained organs, but I had nothing

to do with the performance of the autopsy, nor selection of which tissues and organs were to be

retained.

12. All of my actions with respect to the Castilleja autopsy were made on my own

personal judgment, were in good faith, and in the belief that they were appropriate in connection

with the proper operation of the Lubbock County Medical Examiner's office pursuant to the

contract of NAAG to provide such services.

FURTHER AFFIANT SAYETH NOT.

~f;; r
VANMATSHES, M.D.
SL
SWORN TO AND SUBSCRIBED TO before me by EVA HES, M.D., on this the
_ _ day of the month of April, 2019.

Notary Public in and for the State of


California

AFFIDAVIT OF EvAN MATSHES, M.D. - PAGE 5 147335vl


CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202
~8i6ffi1t1c80:88tlH16 □ DD D[)f.] [J(] D□ DD DD D □ DJ DD D~ D B E ED llO'{] DD D B ~ DD DD DD DD J □ DD D0000 D[)

~ e Attached Document (Notary to cross out lines 1-6 below)


□ See Statement Below (Lines 1-6 to be ompleted only by document signer[s], not Notary)

Signature of Document Signer No. 2 (if any)

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California

County of S o..-.__.:::::i2 ~ o Subscribed and sworn to (or affirmed) before me

on this
by
d 'f tiaay of
Date
4:p r ;- f
Month
, 20Jj_,
Year

(1) t: 114=:r:, y() a..._.,,"t-~ e. $

(and (2) _ _ _ _ _ _ _ _ _ _ _ _ _ ),
Name(s) of Signer(s)

proved to me on the basis of satisfactory evidence to


be the person(s) who appeared before me.

Place Notary Seal and/or Stamp Above


Signature c;;!!. ~ ~
Signature of Notary Public
J,, -
--------------OPTIONAL------------------.

Completing this information can deter alteration of the document or


fraudulent reattachment of this form to an unintended document.

Description of Attached Document

Title or Type of Document: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Document Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Number of Pages: _ _ _ _ _ __

Signer(s) Other Than Named A b o v e : - - - - , . - - - - - - - - - - - - - - - - - - - - - -

92017 National Notary Association


1
EXHIBIT 1

NAAG Pathology Labs


A Professional Medical Corporation

19 September 2018

TO: Dr. Stephen Pustilnik


Forensic Pathologist

FR: Dr. Sam Andrews


Forensic Pathologist & Chief Medical Examiner

Dear Dr. Pustilnik,

RE: Autopsy directions

I hope that you are well. Thank you for your service to the people of Lubbock
County.

Over the course of the next couple of days, you are going to do several
autopsies. We have particular administrative interest in two of those cases:

1. 2018-0466 (Elaina Castilleja)


2.

The purpose of this letter is to outline a few basic expectations we have, given
the high profile nature of the cases.


URL www.naagpathology.com • Email consults@naagpatho logy.com
Phone 800-985-5346 • Fax 858-216-2233
CORPORATE 6540 Lusk Blvd., Suite C262 , San Diego, Californ ia, 92121
LABORATORY 11 I 07 Rose lle Street, Suites 226-228, San Diego, Cal ifornia, 92121
2018-0466

We understand this case to be a possible delayed abusive head trauma death.


Based on the available history, we are unaware of any "acute" injuries. In
addition to a standard, complete pediatric forensic autopsy, we ask that you:

1. Preserve the dura mater and brain in 20% formalin, suspended by a string
under the basilar artery
2. Remove the cervical spine (skull base to T1 or so) and preserve in10%
formalin
3. Remove and preserve any acute or remote skull fractures (or portion
thereof) that are obvious to you
4. Remove and preserve (in 20% formalin) the eyes and surrounding
periocular soft tissues
5. Remove and preserve (in 20% formalin) the remaining portions of the
thoracolumbar spinal cord
6. Remove, flush , hang and preserve the heart in 10% formalin
7. Remove, perfuse (through the bronchial tree) and preserve each lung
8. Liberally retain tissues in your stock jar (do not prepare any histology
cassettes at this time; this case will be "cut in" at our labs in San Diego)

If you find any acute injuries, you will likely need to do full body soft tissue
dissections (chest and abdomen, back, extremities).

-We understand this to be a case of "fall" vs. "collapse".

Pa1e2of3
SP - 09/29/2018 NAAG Patholo Labs
1.

We have flown our Chief Forensic Pathology Technician Ms. Lisa Hang to
Lubbock to provide you with assistance, as required . Lisa is there to help you,
and to represent the Lab, since she will be assisting the NP team in processing
the specimens you retain.

If you have any questions or concerns, please do not hesitate to reach out and
contact me. You should also feel free to speak with Kristii Johnson or Lisa Hang
directly.

With kind regards ,

NAAG PATHOLOGY LABS P.C.


per

Sam Andrews BSc MD FRCPC FCAP D-ABP


Lubbock County Chief Medical Examiner

CC: Lisa Hang


Kristii Johnson

Pa1e3 of3
SP - 09/29/2018 NAAG Patholo Labs
EXHIBIT 2
NAME POSITION PAPER

National Association of Medical Examiners Position Paper:


Recommendations for the Postmortem Assessment of
Suspected Head Trauma in Infants and Young Children
James R. Gill MD, Thomas Andrew MD, M.G.F. Gilliland MD, Jennifer Love PhD,
Evan Matshes MD, R. Ross Reichard MD

ABSTRACT: The National Association of Medical Examiners convened a panel to create a


position paper for recommendations for the investigation of infant deaths due to inflicted head
trauma. The correct certification of both the cause and manner of death is dependent upon
an evaluation of all available data including information derived from the investigation, scene,
postmortem examination, and ancillary studies. This paper provides recommendations for the
forensic pathologist on what constitutes the dataset to be produced during the postmortem
James R. Gill MD is the Chief examination of infants who have died of, or have apparently died of, inflicted head trauma.
Medical Examiner for the State of Specifically, this paper describes 1) procedures, 2) ancillary laboratory tests, and 3) forms
Connecticut. of documentation that are important in the investigation of these deaths. The evaluation and
Author Affiliations: New Hampshire documentation of such infant deaths involves the production of a detail oriented and thor-
Office of Chief Medical Examiner, oughly documented examination that is independently reviewable to support the multitude of
Concord, NH (TA), Brody School of inquiries that may follow from the public and the criminal justice system.
Medicine at East Carolina University,
Department of Pathology and
Laboratory Medicine, Greenville, KEYWORDS: Forensic pathology, Head trauma, Infant, Homicide
NC (MG), Harris County Institute
of Forensic Sciences, Houston,
TX (JL), New Mexico Office of the
Medical Investigator, Albuquerque, INTRODUCTION prosecution, dissolution of families, and putting
NM (EM), Mayo Clinic - Anatomical other children at risk. As such, NAME convened
Pathology, Rochester, MN (RR). The National Association of Medical Examiners a panel to generate recommendations for the in-
Contact Dr. Gill at: (NAME) was founded with “the dual purposes vestigation of these deaths. Complementary to a
jgill@ocme.org. of fostering the professional growth of physician thorough death investigation, the goal of the au-
Acad Forensic Pathol death investigators and disseminating the profes- topsy is not only to aid in the determination of the
2013 4 (2): 206-213 sional and technical information vital to the con- cause and manner of death, but also to produce an
https://doi.org/10 23907/2014.032
tinuing improvement of the medical investigation independently reviewable dataset that allows the
of violent, suspicious and unusual deaths” (1). original forensic pathologist (and others who fol-
© 2014 One method of fulfilling this mission is the pub- low) the best opportunity to review primary data
National Association of Medical Examiners lication of autopsy standards and position papers and potentially answer unanticipated future ques-
(2-5). NAME has previously published position tions. As Moritz stated, “If a negative or positive
papers on recommendations for the investigation postmortem finding is so important that it may
and certification of cocaine, heat-related, and make the difference between the freedom or im-
opioid deaths (3-5). prisonment, or the life and death of someone, ev-
ery attempt should be made to protect, preserve,
Fatalities due to traumatic brain injury (TBI) and record it for others to see and evaluate” (6).
among infants/young children, particularly ho-
micides, are among the most challenging in- Autopsy protocols have been developed for car-
vestigations for a forensic pathologist for many diac, metabolic, and sudden infant deaths (7-13)
reasons: any death in this age group may elicit to ensure consistency and comprehensive exami-
passionate responses even by trained profession- nations that look for a broad range of diseases.
als, the decedent may have been seen recently by Similarly, this paper’s aim is to describe an
Page 206 • Volume 4 Issue 2

a physician, a caregiver may be the perpetrator, autopsy protocol to facilitate a thorough, inde-
and the wrong diagnosis may result in a wrongful pendently reviewable investigation of pediatric
Table 1: Specific Autopsy Reporting and Procedures for Suspected Pediatric Head Injury Deaths
1. Photography including overall full body external color images with close-ups of specific findings and pertinent
negative findings.

2. A radiological skeletal survey with, as indicated, an internal examination of the musculoskeletal system to document
and/or exclude soft tissue or bone injury.

HEAD TRAUMA POSITION PAPER


3. Description (color, size, location) and photographic documentation of intracranial hemorrhage (epidural [EDH]),
subdural [SDH], or subarachnoid [SAH]).

4. Examination of the formalin-fixed brain, cranial dura, and spinal cord and the ability to consult with a board-certified
neuropathologist.

5. Description of the eyes and optic nerves both grossly (with photographic documentation) and microscopically:

A. Optic nerve sheath: describe the extent and location (subdural, subarachnoid, intradural, extraocular, orbital
fat) of any hemorrhage.

B. Retina: describe any hemorrhage/injury including the layers involved (preretinal, retinal, subretinal), extent
(few, numerous, extensive), and distribution (posterior pole, equatorial, and peripherally, including whether
they abut the ora serrata).

C. A neuropathologist or ophthalmic pathologist consultation may be useful.

6. Describe injury and hemorrhage of the anterior and posterior neck.

7. Medical record review as available for correlation with the history and autopsy findings.

head injury deaths. NAME has already published importance of the detection and documentation
general autopsy standards that are applicable to of other disease processes and injuries involving
infants/children with apparent head trauma. This the torso and extremities is vital.
traumatic brain injury protocol is not meant to
replace those preexisting standards but to pro- DISCUSSION
vide detailed techniques, procedures, and other
recommendations for these investigations. Each Initial Autopsy Investigation
case is unique, and this protocol is not meant as a
substitute for professional judgment. The follow- The initial autopsy investigation includes digital
ing protocol, however, may be considered prac- photography and full body radiologic imaging
tice recommendations for these investigations performed prior to the internal examination.
endorsed by the NAME Board of Directors.
Digital Photography
Infants die suddenly and unexpectedly for a
myriad of reasons that span the spectrum from Integral to the development of a dataset that fa-
natural disease to inflicted injury. Infant/child- cilitates independent case review is high qual-
hood deaths due to TBI may have no history or ity, color photography. Unlike film photography,
external evidence of trauma; therefore, unexpect- digital imaging allows the prosector to know
ed and unexplained infant/childhood deaths are immediately if the image is properly captured
thoroughly evaluated at the outset as they may (14). Therefore, digital photography is the pre-
be homicides or due to rare natural disease. As ferred method for photographic documentation
such, these deaths undergo a uniformly thorough for these investigations. A core list of recom-
investigation and documentation through the ini- mended photographs is included in Table 2. In
tial stages of the evaluation, documentation, and general, all external surfaces of the body are pho-
evisceration. As pathologic findings emerge dur- tographed with close-up photographs of specific
ing the course of the examination and prosection, findings. Important internal images of injury and
the necessity and/or utility of ancillary dissec- pertinent negative findings include subscalpular
tions and studies will become apparent, and their views, subdural/epidural/subarachnoid hemor-
selection can be tailored by the forensic patholo- rhage, skull, brain (external and representative
gist. cross sections), and eyes, including the optic
nerves, and subcutaneous and skeletal injury.
The subsequent protocol describes a progression
of relevant examinations and processes for the Plain Film Radiography
thorough description and documentation of per-
tinent findings (Table 1). Although the focus of As skeletal injury may not be detected during a
the paper is on the central nervous system, the standard autopsy, healed and healing fractures
Gill et al. • Page 207
Table 2: Core Photographs to be Obtained in Cases with Head Trauma or Suspected Head Trauma*
1. Identification photo (face)
NAME POSITION PAPER

2. Both sides of the face

3. Extended anterior neck

4. Chest, abdomen, and back

5. Genitals and perianal region

6. Arms and legs including wrists, ankles, and hands

7. Layered soft tissue plane dissections (chest and abdomen, scalp)

8. Exposed pericranial surfaces following usual reflection of the scalp

9. Exposed ectocranial surfaces following pericranial membrane removal

10. Epidural, subdural, and subarachnoid hemorrhages

11. Exterior surfaces of the brain and spinal cord

12. Representative cross sections of the brain and spinal cord

13. The cervical spine and/or cervical nerve roots, as indicated

14. External and internal surfaces of the eyes

*A case number should be visible in each photograph and a reference scale included in at least one photograph of major
wounds and injury to allow for 1:1 reproduction (15).

may be missed (16). Therefore, full body radio-


graphs, which may aid in the detection of these Table 3: Pediatric Radiologic Skeletal Survey
lesions, are indicated when investigating a death 1. Three views of the skull
with potential inflicted trauma. A radiologic skel- a. Anterior-Posterior (AP)
etal survey is necessary for the evaluation of b. Towne’s (30% angle view of the mandibular
condyles and the midfacial skeleton)
unexplained infant/childhood deaths that come c. Lateral
to the attention of the medical examiner/coroner
(ME/C) (16, 17). A pediatric skeletal survey pro- 2. Two views of the cervical spine
a. AP
tocol is provided in Table 3 (if board-certified ra- b. Lateral
diologists are not available to define the pediatric
skeletal survey). Forensic pathologists are trained 3. Two views of the trunk / torso
a. AP
to examine plain film radiographs. As some pe- b. Lateral
diatric fractures may be subtle and disease may
simulate fractures, consultation with a pediatric 4. Two views of the ribs
radiologist may be useful in some instances. a. LPO (Left posterior oblique)
b. RPO (Right posterior oblique)

Advanced Radiologic Techniques 5. Four views of the upper extremities


a. Left upper extremity
b. Right upper extremity
Postmortem computed tomography (CT) and c. Left hand
magnetic resonance imaging (MRI) offer the d. Right hand
ability to provide unobstructed and three-di-
6. Four views of the lower extremities
mensional visualization of body lesions. Some a. Left lower extremity
offices have in-house scanners or have arranged b. Right lower extremity
access with local hospitals. While these proce- c. Left foot
d. Right foot
dures likely provide superior results for certain
injuries over plain films, at the current time, the
strengths and weaknesses of each modality have MRI remains at the discretion of the forensic pa-
yet to be fully defined in the forensic autopsy thologist and subject to the availability of facili-
setting. In addition, plain film radiographs con- ties and funding for such modalities (18). While
Page 208 • Volume 4 Issue 2

tinue to be the choice for the clinical evaluation postmortem CT/MRI currently may be a useful
for most fractures in children. The use of CT/ adjunct, the external and internal autopsy exami-
nation remains the best method for the postmor- Skull: documentation of the location, dimension,
tem diagnosis of injury (19). Since some infants type (e.g., linear, depressed, comminuted, dia-
or children who ultimately die from injuries may static) of fracture(s) is achieved through the nar-
have a survival period in the hospital, antemor- rative report, digital photography, and radiologic
tem advanced imaging often has been obtained. images; some forensic pathologists may choose
Admission imaging and other hospital CT and to supplement their reports with diagrams. Skull
MR scans may provide valuable information and fractures may be subtle in the young pediatric

HEAD TRAUMA POSITION PAPER


should be sought and reviewed. population and therefore removal of the pericra-
nial membranous soft tissues along with the cra-
External and Internal Examination nial dura allow them to be better identified and
examined in detail. Microscopic sections help
Depending on the age of the infant/young child, confirm and document gross findings and may be
certain body measurements (e.g., head circum- useful for assessment of the stage of healing.
ference) in addition to length and weight may
be useful. A search for trace evidence and sexual Hemorrhage: the type [epidural (EDH), subdural
assault evidence collection, if indicated, is done (SDH), or subarachnoid (SAH)], location, size,
prior to washing the body to better visualize inju- color, and adherence are documented through ap-
ries. An external and internal examination is per- propriate use of narrative description and digital
formed per the NAME Forensic Autopsy Perfor- photography. The size of SDH and EDH, for ex-
mance Standards which also are followed when ample, may be documented by volume, weight,
describing an injury (e.g., type, location size, or three-dimensional measurements. The effects
shape, pattern) (15). of the hemorrhage on the brain (e.g., compres-
sion, herniation, shift) are noted in the autopsy
Specialized Autopsy Investigations When report. Microscopic sections help confirm and
Suspicious Findings are Encountered document gross findings and may be useful for
assessment of the stage of healing (21, 22).
As the autopsy progresses, findings suspicious
for inflicted traumatic brain injury (iTBI) may Brain: for optimal results, the brain and cranial
be detected. If so, the following specific exami- dura should be fixed in formalin (usually for a
nations and documentation of particular findings minimum of 10-14 days). Forensic pathologists
are recommended. These are described by body are trained to diagnose and describe traumatic
region. brain injuries. As some neuropathologic diseas-
es may be subtle or mimic trauma, consultation
Head with a board-certified neuropathologist may be
warranted. Express mail delivery services, gross
Scalp/subscalpular: the number, location, and photography, tissue retention, and microscopic
size of scalpular and subscalpular hemorrhages slides allow for consultation even after the initial
are best documented through a combination of brain dissection. Pertinent positive and negative
the photograph(s) and narrative description(s). gross and microscopic findings include: hypox-
Correlation should be made between sites of ia-ischemia, contusion, contusion hematomas,
hemorrhage and medical intervention (i.e., prior diffuse axonal injury, presence/absence of brain
surgery). Other discrete areas of hemorrhage swelling and herniation (type and extent), intra-
may occur, such as along cranial sutures from di- cerebral hemorrhage (location and extent), vas-
astasis due to marked brain swelling. The docu- cular malformations, congenital anomalies, and
mentation should convey the information neces- other focal lesions. Examination of the cerebral
sary for users of the autopsy report to determine dura includes description of any pathology (e.g.,
when hemorrhage is either due to a secondary subdural blood, surgical defects) and evaluation
process or a direct result of trauma. If there is (opening) of the sinuses (e.g., thrombosis). Mi-
concern for facial injury not apparent externally, croscopic examination of the dural sinus may
a formal face dissection is possible (20). Detec- help distinguish thrombus from postmortem con-
tion of otherwise unknown or underappreciated gealed blood.
impact sites of the face may change the context
of the infant death from one of non-impact to Microscopic sections for suspected inflicted trau-
one with demonstrable impact. Intraoral exami- matic brain injury include evaluations of pathol-
nations may reveal frenulum, inner cheek, and ogy identified grossly and sampling that allows
tongue injuries. Shaving of hair allows for better assessment of possible natural disease processes,
evaluation and documentation of scalp injuries. hypoxic-ischemic brain injury, and traumatic
Careful examination of the ears includes looking axonal injury. Hypoxic-ischemic brain injury in
inside and behind the ears. infants/children has a characteristic distribution
Gill et al. • Page 209
of injury, and those regions should be included
Table 4: Histologic Sampling for Hypoxic-Ischemic
in the evaluation in addition to regions typically
Brain Injury
involved in adults. A list of locations for his-
NAME POSITION PAPER

tologic sampling is included in Table 4. Diag- 1. Border zone (i.e., frontoparietal region)
nosis of diffuse traumatic axonal injury (dTAI)
requires traumatic axonal injury in multiple lo- 2. Deep gray structures (basal ganglia/thalamus)
cations including the corpus callosum, cerebral 3. Hippocampi (including subiculum)
hemispheric white matter, and brainstem. Infants
have been reported to have traumatic axonal in- 4. Midbrain (inferior colliculus)
jury isolated within the brainstem (23). Histo-
logic sampling for dTAI in infants and children 5. Pons
includes routine hematoxylin and eosin (H&E) 6. Cerebellum
sections. If available, examination with amyloid
precursor protein (APP) immunostain may be
useful in select instances. A list of locations for Table 5: Histologic Sampling for Diffuse Traumatic
histologic sampling for dTAI is included in Ta- Axonal Injury (dTAI)
ble 5. Limited sampling has been demonstrated 1. Posterior corpus callosum (near splenium)
to preclude the diagnosis of dTAI; therefore, if
traumatic axonal injury is present but insufficient 2. Parasagittal white matter
to diagnose dTAI, additional (bilateral) histolog-
3. Posterior limb of the internal capsule
ic sections should be evaluated. Assessment of
APP immunostaining patterns due to trauma and 4. Midbrain, pons, and medulla
a variety of other processes has previously been
reported (23-25). Microscopic evaluation for
natural disease processes includes examination Ocular examination: monocular indirect ophthal-
of neocortex, deep gray structures, brainstem, moscopy is a noninvasive and nondestructive
and cerebellum. Histologic sampling and use of technique to view the retina prior to autopsy and
special stains, however, may vary depending on the equipment is less expensive than that needed
the clinical history and gross pathology identified for ophthalmic endoscopy (27), however, it does
at autopsy. Marked non-perfused brain changes require additional equipment and training. A
(so-called “respirator brains”), for example, may gross dissection and microscopic examination of
dramatically affect the gross evaluation and hin- the eyes also is possible at autopsy. The interpre-
der histologic sampling and diagnosis. tation of retinal hemorrhages is beyond the scope
of this paper. Forensic pathologists, however,
Histologic evaluation of the cerebral dura is use- have a duty not only to diagnose and interpret,
ful to assess gross pathology and evaluate for but also to document and preserve findings. As
more subtle processes. Evaluation for intracel- an autopsy is often the best and sometimes only
lular iron deposition may facilitate assessment of chance to diagnose, confirm, or exclude certain
the stage of healing in SDH and EDH. The in- findings, pathologists, as the independent docu-
terface between sub/epidural blood and ongoing menters of facts, are best to err on the side of doc-
tissue healing is the best site for histologic evalu- umentation. A recent prospective clinical study
ation. Although there are criteria for the stages indicated that the assessment of retinal hemor-
of healing of a SDH, many variables affect this rhages may be useful as a predictor of iTBI (28).
process (e.g., size of hematoma, source of blood, Pending the publication of additional research, at
age of the individual), resulting in a somewhat a minimum, the ocular examination serves as a
predictable but potentially variable course (22). quality assurance measure that may confirm or
Retention of representative cortical regions, deep refute clinically diagnosed retinal hemorrhages.
gray structures, brainstem, and cerebellum may Therefore, the removal and examination of the
prove useful. In addition, samples from contra- eyes in instances of inflicted or suspected-inflict-
lateral white matter regions (e.g., parasagittal ed traumatic brain injury is recommended.
white, posterior limb of internal capsule) may be
necessary to diagnose or exclude dTAI. A technique for removal and examination of the
eyes has previously been published (29). After
Spinal cord: the spinal cord is examined at all removal, the eyes and periocular soft tissues are
three levels (cervical, thoracic, and lumbar). fixed in formalin prior to microscopic examina-
Some have recommended removal of the brain tion. For optic nerve sheath hemorrhage, the lo-
with the spinal cord still attached (26), but it is cation (subdural, subarachnoid, intradural, extra-
unclear if this technically difficult dissection ocular, orbital fat) is documented in the autopsy
Page 210 • Volume 4 Issue 2

yields any diagnostic value. report. For retinal hemorrhages, the involved lay-
ers (preretinal, retinal, subretinal), extent (few, description of the stage of healing (i.e., bone cal-
numerous, extensive), and distribution (poste- lus formation) is included in the autopsy report.
rior pole, equatorial, and peripherally, including Forensic pathologists are trained to examine
whether they abut the ora serrata) are described. plain film radiographs and bones. As some os-
Special stains, such as Prussian blue to identify seous findings may be unusual normal anatomic
hemosiderin, may be useful in some instances. variants, consulting with a board-certified foren-
Collection of vitreous will disturb the retina and sic anthropologist may be useful. Other useful

HEAD TRAUMA POSITION PAPER


should be postponed until adequate examination techniques and examinations include: stripping
of the retina, the optic nerve, and brain is done the parietal pleural lining to better visualize rib
and the value of the vitreous analysis for the spe- fractures, resecting the spinal column with the
cific case is considered. Photography with appro- medial ribs for further evaluation for posterior
priate lighting can aid in the documentation of rib fractures, and histologic sections of cutane-
ocular findings. ous/subcutaneous injuries (Prussian blue can
identify hemosiderin).
Neck
Ancillary Studies
Infants and children who die of inflicted injuries
may have injuries of the anterior and posterior Depending upon the circumstances and autopsy
neck. In addition to the standard anterior neck findings, ancillary studies for infectious (e.g., vi-
dissection, a posterior neck dissection also may ral, bacterial cultures), hereditary, metabolic, or
reveal internal injury. Injuries of the neck have thrombophilic diseases may be indicated.
been proposed to explain potential mechanisms
of death and techniques have been described for Records
the examination of the anterior and posterior
neck intrinsic spine structures/nerve roots (30- Review of the medical records including ante-
37). If the prosector is concerned for intrinsic mortem CT/MRI reports should be done as they
structural spinal/nerve root injury, then these may provide relevant clinical information. Re-
structures may be evaluated by various methods. view of reports generated by other agencies such
One method is an en bloc dissection of the cervi- as child protective services and law enforcement
cal osseous and neural structures with formalin investigation findings also may guide the foren-
fixation (37). Another is an in situ method that re- sic pathologist’s investigation and therefore these
moves the spinal cord and attached ganglia with- should be requested.
out the surrounding bone and soft tissues (38). In
this technique, the laminae are cut and the spi- CONCLUSION
nous processes removed. The lateral aspects of
the neural arches are then removed by cutting the The investigative value of each of the described
articulating facets and pedicles of the vertebrae. studies is often unknown at the onset of the au-
The freed sections of bone are removed and the topsy. Many procedures performed during an au-
spinal cord is removed with the ganglia attached. topsy create irreversible changes to tissues and
thus proactive documentation is critical. Ulti-
Trunk and Upper and Lower Extremities mately, the forensic pathologist must use medical
judgment on how to conduct each autopsy exam-
The NAME autopsy performance standards in- ination but would be wise to heed the admonition
clude procedures and descriptions for trunk in- that “I would rather explain why I did an exami-
juries. A subcutaneous examination of the arms, nation than why I did not.” In these instances, it
legs, and back and buttocks may improve detec- may be stated that the examination was done in
tion of occult subcutaneous and deep hemor- accordance with recommendations endorsed by
rhage (39). the Board of Directors of the National Associa-
tion of Medical Examiners.
Of particular importance in pediatric iTBI are
the identification and description of rib and other DISCLOSURES
skeletal fractures. In addition to radiographs, an
in situ skeletal examination may be useful to The opinions and conclusions of this paper have
further document or exclude injury. An in situ been reviewed and approved by the National As-
examination may include exposure of the shaft sociation of Medical Examiners Board of Direc-
and epiphyseal cartilages of the ribs, clavicles, tors and as such are endorsed by NAME. These
long bones, and scapulae (40). Traumatized or opinions and positions are based on a consensus
abnormal structures may be removed for addi- of the current literature, knowledge, and prevail-
tional analysis including gross (i.e., dry bone) or ing theories on this topic. As Scientific knowl-
histologic examination (41-43). When possible, a edge and experience grow, NAME reserves the
Gill et al. • Page 211
right to revise or update these opinions. The 12) Bove KE. Practice guidelines for autopsy pathology:
process by which NAME position papers are the perinatal and pediatric autopsy. Autopsy Commit-
tee of the College of American Pathologists. Arch
initiated, written, reviewed, and approved is Pathol Lab Med. 1997 Apr; 121(4):368-76.
NAME POSITION PAPER

publically available at https://netforum.avectra. 13) Ackerman MJ, Tester DJ, Driscoll DJ. Molecular
com/temp/ClientImages/NAME/2c26a527-f992- autopsy of sudden unexplained death in the young. Am
4f70-9d03-7941bff5319d.pdf. All scientific posi- J Forensic Med Pathol. 2001 Jun; 22(2):105-11.
tion papers endorsed by the National Association 14) Oliver WR. Considerations for gross autopsy photogra-
of Medical Examiners automatically expire five phy. Acad Forensic Pathol. 2011 Jul; 1(1):52-81.
years after publication unless reaffirmed, revised, 15) Peterson GF, Clark SC. Forensic autopsy performance
or retired at or before that time. This work is a standards. Marceline (MO): National Association of
product of NAME and as such, was not subjected Medical Examiners; 2006. 27 p.
to Academic Forensic Pathology Journal edito- 16) McGraw EP, Pless JE, Pennington DJ, White SJ. Post-
mortem radiography after unexpected death in neonates,
rial review. infants, and children: should imaging be routine? AJR
Am J Roentgenol. 2002 Jun; 178(6):1517-21.
The editors and publication staff do not report 17) Adamsbaum C, Mejean N, Merzoug V, Rey-Salmon
any relevant conflicts of interest. C. How to explore and report children with suspected
non-accidental trauma. Pediatr Radiol. 2010 Jun;
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18) Nolte K, Mlady G, Zumwalt R, et al. Postmortem X-ray
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27(3):200-25. 20) Collins K. Special autopsy dissections. Northfield (IL):
3) Stephens BG, Jentzen JM, Karch S, et al. National College of American Pathologists; 2010. 50 p.
Association of Medical Examiners position paper on 21) Munro D, Merritt H. Surgical pathology of subdural
the certification of cocaine-related deaths. Am J Forensic hematoma. Arch Neurol Psych. 1934; 35:65-78.
Med Pathol. 2004 Mar; 25(1):11-3.
22) Hirsch CS, Armbrustmacher V. Spitz and Fisher’s
4) Donoghue ER, Graham MA, Jentzen JM, et al. Criteria medicolegal investigation of death. 4th ed. Springfield
for the diagnosis of heat-related deaths: National (IL): Charles C Thomas; c2006. Chapter 19, Part 1,
Association of Medical Examiners. Position paper. Trauma of the nervous system; p. 994-1077.
National Association of Medical Examiners Ad Hoc
23) Reichard RR, White CL 3rd, Hladik CL, Dolinak D.
Committee on the Definition of Heat-Related Fatalities.
Beta-amyloid precursor protein staining of nonacci-
Am J Forensic Med Pathol. 1997 Mar; 18(1):11-4.
dental central nervous system injury in pediatric
5) Davis GG, National Association of Medical Examiners autopsies. J Neurotrauma. 2003 Apr; 20(4):347-55.
and American College of Medical Toxicology Expert
24) Geddes JF, Vowles GH, Beer TW, Ellison DW. The
Panel on Evaluating and Reporting Opioid Deaths.
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paper: recommendations for the investigation, diagnosis,
Aug; 23(4):339-47.
and certification of deaths related to opioid drugs. Acad
Forensic Pathol. 2013 Mar; 3(1):77-83. 25) Reichard RR, White CL 3rd, Hladik CL, Dolinak D.
Beta-amyloid precursor protein staining in nonhomi-
6) Moritz AR. Classical mistakes in forensic pathology.
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Am J Clin Pathol. 1956 Dec; 26(12):1383-97.
Exp Neurol. 2003 Mar; 62(3):237-47.
7) Basso C, Burke M, Fornes P, et al. Guidelines for
26) Judkins AR, Hood IG, Mirchandani HG, Rorke LB.
autopsy investigation of sudden cardiac death. Virchows
Technical communication: rationale and technique for
Arch. 2008 Jan; 452(1):11-8.
examination of nervous system in suspected infant
8) Lee AH, Gallagher PJ. Post-mortem examination after victims of abuse. Am J Forensic Med Pathol. 2004 Mar;
cardiac surgery. Histopathology. 1998 Nov; 33(5):399- 25(1):29-32.
405.
27) Lantz PE, Adams GG. Postmortem monocular indirect
9) Rinaldo P, Yoon HR, Yu C, et al. Sudden and unexpected ophthalmoscopy. J Forensic Sci. 2005 Nov; 50(6) 1450-2.
neonatal death: a protocol for the postmortem diagnosis
28) Minns RA, Jones PA, Tandon A, et al. Prediction of
of fatty acid oxidation disorders. Semin Perinatol. 1999
inflicted brain injury in infants and children using reti-
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nal imaging. Pediatrics. 2012 Nov; 130(5):e1227-34.
10) Byard RW, Krous H. Sudden infant death syndrome
29) Gilliland MG, Levin AV, Enzenauer RW, et al. Guide-
problems, progress, and possibilities. London: Arnold;
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c2001. Appendix I, International standardized autopsy
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11) Sadler DW. The value of a thorough protocol in the 28(4):323-9.
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31) Geddes JF, Vowles GH, Hackshaw AK, et al. Neuropa- 38) Peterson JEG, Love JC, Wolf DA, et al. Proceedings
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Microscopic brain injury in infants. Brain. 2001 Jul; annual scientific meeting. Colorado Springs: American
124(Pt 7):1299-306. Academy of Forensic Sciences; c2014. G51, Ganglia
32) Hadley MN, Sonntag VK, Rekate HL, Murphy A. The and nerve root hemorrhage in cases of pediatric blunt
infant whiplash-shake injury syndrome: a clinical and head injury; p. 346.
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536-40. In: Spitz W, Spitz D, editors. Spitz and Fisher’s medico-
33) Shannon P, Smith CR, Deck J, et al. Axonal injury and legal investigation of death. 4th ed. Springfield (IL):
the neuropathology of shaken baby syndrome. Acta Charles C Thomas; 2006. p. 1325.
Neuropathol. 1998 Jun; 95(6):625-31. 40) Love JC, Sanchez LA. Recognition of skeletal fractures
34) Geddes JF, Hackshaw AK, Vowles GH, et al. Neuro- in infants: an autopsy technique. J Forensic Sci. 2009
pathology of inflicted head injury in children. I. Patterns Nov; 54(6):1443-6.
of brain damage. Brain. 2001 Jul; 124(Pt 7):1290-8. 41) Love JC, Derrick SM, Wiersema JW. Skeletal atlas of
35) Adams VI. Autopsy technique for neck examination. I. child abuse. New York: Humana Press; 2011. 136 p.
Anterior and lateral compartments and tongue. Pathol 42) Kleinman PK, Marks SC, Blackbourne B. The metaphy-
Annu. 1990; 25 Pt 2:331-49. seal lesion in abused infants: a radiologic-histopatho-
36) Adams VI. Autopsy technique for neck examination. II. logic study. AJR Am J Roentgenol. 1986 May;
Vertebral column and posterior compartment. Pathol 146(5):895-905.
Annu. 1991; 26 Pt 1:211-26. 43) Lonergan GJ, Baker AM, Morey MK, Boos SC. From
37) Matshes EW, Joseph J. Pathologic evaluation of the the archives of the AFIP. Child abuse: radiologic-patho-
cervical spine following surgical and chiropractic inter- logic correlation. Radiographics. 2003 Jul-Aug;
ventions. J Forensic Sci. 2012 Jan; 57(1):113-9. 23(4):811-45.

Gill et al. • Page 213


 
 
 
 
 

Exhibit B 
   
CAUSE NO. 2019534421

REBECCA VILLARREAL ORTIZ, § IN THE 237TH DISTRICT COURT


§
Plaintiff §
§
vs. §
§ IN AND FOR
EVAN MATSHES, MD, SAM ANDREWS, §
MD, NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND NAAG PATHOLOGY §
LABS, PC, §
§
Defendants. § LUBBOCK COUNTY, TEXAS

AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D.

STATE OF TEXAS §
§
COUNTY OF LUBBOCK §

Before me, the undersigned authority, on this day personally appeared SAM WILLIAM

ANDREW S, M.D., who is personally known to me. After being duly sworn he deposed and stated

as follows:

1. My name is Sam William Andrews, M.D. I am over the age of 18, and I am legally

competent to make this affidavit. I have personal knowledge of the facts stated herein, and those

facts are true and correct. I am the licensed to practice medicine in Texas and California. I am

certified in forensic pathology and anatomical pathology by the American Board of Pathology,

and anatomical pathology by the Royal College of Physicians and Surgeons of Canada.

2. I am the duly appointed Chief Medical Examiner for Lubbock County, Texas.

During all times relevant to this lawsuit, I served as the interim Chief Medical Examiner or Chief

Medical Examiner for Lubbock County and performed the governmental function of Chief

Medical Examiner for the County. I am also an employee of National Autopsy Assay Group LLC

AFFIDAVIT OF SAM W ILLIAM ANDREWS, M.D. - PAGE I 147371 v l


("the LLC"). I am sub-contracted by the LLC to NAAG Pathology Labs, PC (''NAAG"). My

duties relative to the Lubbock County Medical Examiner' s office have been in connection with

my employment duties with NAAG.

3. Under the terms of the contract between NAAG and Lubbock County effective

August 5, 2018, I was to provide the services of Interim Chief Medical Examiner of Lubbock

County. I was appointed Acting Interim Chief Medical Examiner ofthe Lubbock County Medical

Examiner's office on August 10, 2018.

4. Thereafter, NAAG entered into another contract with Lubbock County to provide

comprehensive "full spectrum" death investigation services including executive oversight

functions typical of the Chief Medical Examiner and oversight administrative functions typical of

the Chief Administrative Officer and Department Head and Section Leader. Under that contract,

I was appointed Chief Medical Examiner of Lubbock County and continue to serve in that position.

I have been either Acting Interim Chief Medical Examiner or Chief Medical Examiner of Lubbock

County since August 10, 2018. I attach a copy of the job description for Medical Examiner that

was provided to me by Lubbock County as Exhibit 1. I also attach a copy of my Appointment and

Oath of Office for my position as Interim Medical Examiner and Medical Examiners as Exhibit 2.

5. On September 15, 2018, I was notified of a report of a death by a senior forensic

technician at the Lubbock County Medical Examiner's office, James Kason McGinnis, an

employee of Lubbock County. The Medical Examiner's office had been contacted about the death

of Elaina Castilleja by the house supervisor at Covenant Women's & Children's Hospital in

Lubbock. McGinnis was an employee of Lubbock County. According to the information

provided, the decedent was a 10-year old girl who had incurred a skull fracture at an early age and

was removed from the care of the decedent's mother. The decedent's grandmother, Rebecca Ortiz,

AFFIDAVIT OF SAM WILLIAM ANDREWS, M . D. - PAGE 2


l4737I v l
was granted care ofthe decedent. A brief medical history of the child was provided by the hospital

house supervisor. The history indicated that the child was pronounced dead less than 24 hours

after admission to the hospital. A representative of the Lubbock County Medical Examine r's

office spoke with the grandmother on September 15, 2018, and she advised that the decedent was

believed to have been shaken at an early age, possibly around or before the age of one and was

diagnosed with a skull fracture at that time. The grandmother advised that "the incident was not

proven," but that the decedent was blind, had scoliosis with the possibility that it was because of

the incident, which occurred in 2008. In my role as Lubbock County Medical Examiner, I

determined that under the circumstances, an autopsy was necessary.

6. I was not in Lubbock and was not available to perform the autopsy. Prior to the

time of the NAAG contract with Lubbock County, Dr. Stephen Pustilnik, a pathologist, had

performed autopsies for the Lubbock County Medical Examiner's office as an independent

contractor. Representatives of Lubbock County had advised me they had concerns about the

quality ofthe autopsy work performed by Dr. Pustilnik, and we were told that it was the preference

of Lubbock County and the District Attorney's office that he not perform autopsies on criminally

suspicious deaths, and child deaths. Dr. Matshes and I discussed the situation and concluded that

we should ask Dr. Pustilnik to perform the autopsy, as I would not be available to do so personally

until September 24, 2018. Therefore, a support plan was devised that included me providing Dr.

Pustilnik with written directions and suggestions for autopsy performance. Furthermore, NAAG

provided direct, in-person technical support for Dr. Pustilnik by way ofNAAG Forensic Autopsy

Technician, Lisa Hang, who was flown to Lubbock from San Diego. The directions to Dr.

Pustilnik from me are Exhibit 3 to this affidavit. Exhibit 3 has been redacted to protect the

confidentiality of another case unrelated to the Castilleja autopsy.

AfFfDA VIT OF SAM WILLIAM ANDREWS, M.D. - PAGE 3


147371Vl
7. I never had any relationship with Rebecca Villarreal Ortiz and have had no

communication with her. My only connection related to the autopsy of Elaina Castilleja was in

connection with my position as Acting Interim Lubbock County Medical Examiner.

8. I am familiar with the standards followed by medical examiners in Texas and

various other states. The removal and preservation of organs during an autopsy is often necessary

for the correct determination of both the cause and manner of death. I attach hereto as Exhibit 4

an article titled “National Association of Medical Examiners Position Paper: Recommendations

for Post-mortem Assessment of Suspected Head Trauma in Infants and Young Children.” This

article appeared in Volume IV of the publication Academic Forensic Pathology: The Official

Publication of the National Association of Medical Examiners beginning at Page 206. It was

published in 2014. This publication is considered a reliable authority by those practicing in the

specialty of forensic pathology. The allegations of Ms. Ortiz that the removal of certain organs

was unnecessary are incorrect. The organs that were removed at autopsy were necessary to either

accurately establish whether the death was the result of a traumatic brain injury or to rule out a

natural disease process as the cause of death. None of the organs or tissue removed at autopsy

were used for research or any purpose other than an accurate determination of the cause and

manner of death.

9. My only involvement with respect to the Castilleja autopsy was my determination

that an autopsy was necessary and my consultation with Dr. Matshes about providing instructions

to Dr. Pustilnik because of the concerns about Dr. Pustilnik’s ability that were communicated to

me by representatives of Lubbock County.

10. All of my actions with respect to the Castilleja autopsy were made on my own

professional judgment, were in good faith, and in the belief that they were appropriate in

AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D. – PAGE 4 147371V1


connection with the proper operation of the Lubbock County Medical Examiner's office in my

role as Interim Lubbock Medical Examiner.

FURTHER AFFIANT SAYETH NOT.

' SAM WILLIAM ANDREWS, M.D.

SWORN TO AND SUBSCRIBED TO before me by SAM WILLIAM ANDREWS, M.D.,


on this the 6
day of the month ofApril; 2019.
,/11,,4/

,,,,,,,,,,, GLENDA J KEENEY


~\~~:.~vt~~ .
f f~{".'1 Notary Public, State of Texas
~v_>.••• ~ ,:;p.-:
1-:.,~t~::~$,$' Comm. Expires 02-22-2023
Notary ID 131904616

AFFIDAVIT OF SAM WILLIAM ANDREWS, M.D. - PAGE 5 J4737lvl


EX HIB IT 1
Medical Examiner- Lubbock County

Job Description

Job Title: Chief Grade: Appointed FLSA: Exempt

Date: 08/2018

Reports To: Commissioners Court

SUMMARY:

Directs the forensic functions of the Medical Examiner’s office to provide proper investigations of
deaths and determines accurate cause and manner of death including investigation and evaluation
of current and anticipated future inquiries in regard to unattended, suspicious, unexpected, and
violent deaths in accordance with Article 49.25, Texas Code of Criminal Procedure. Job has critical
impact on department operations and public image. Medical Examiner is appointed by the
Commissioners Court and serves at the pleasure of the Lubbock County Commissioner’s Court.
Coordinates with the Medical Examiner Chief Administrative Officer to liaison with the
Commissioners Court and the County Executive for Emergency Services.

ESSENTIAL DUTIES:

 Investigates deaths in accordance with Article 49.25, Texas Code of Criminal Procedure.
 Conducts post-mortem examinations to determine cause and manner of death.
 Responsible for the investigation or supervision of the investigation for all types of death
occurring as prescribed by law. Specifies and defines forensic standards, policies, and
procedures to ensure and enforce standardization within the Medical Examiner's office.
 Reviews and settles controversial issues pertaining to cause of death and physical evidence
analysis.
 Uses expert judgment to direct all actions in the Medical Examiner's office operations,
evaluates physical evidence and presents findings during court proceedings and uses broad
discretion to complete work assignments.
 Reviews all forensic work to ensure quality and consistency of reports. Testifies in court as
expert witness, to include out-of-county testimony as necessitated following the
performance of autopsies by the Lubbock County Medical Examiner’s Office. Serves as the
final authority on all investigations, whether involving criminal or civil matters. Confers
with attorneys, physicians, relatives and the public, as required. Has discretionary authority
to comment to the media on matters of public interest or public safety.
 Directs, plans, and provides quality evaluation systems for medical phases of forensic
operations to assure quality and consistent work methods.
 Authorizes designed to take charge of a body falling under the jurisdiction conferred by
Article 49.25, Texas Code of Criminal Procedure, and all property found with it in the
absence of next-of-kin or a legal representative of the deceased. Provides family
conferences in person and by telephone to family members of the deceased to increase
level of understanding of causes of death, manner of death, and physiologic and
psychological mechanisms involved.
 Orders appropriate analytical testing. Collects specimens and evidentiary materials.
Performs external examination of bodies. Dictates findings immediately upon completion of
post-mortem examination. Prepares written reports on opinion of cause and manner of
death regarding causes investigated, autopsied or externally examined, and issues official
death certificate. Promptly reviews and signs medical examiner reports.
 Is responsible for the maintenance of accurate and complete investigative records, reports,
and detailed findings of postmortem examination.
 Maintains all records in compliance with National Association of Medical Examiner (NAME)
standards.
 Promptly informs the appropriate law enforcement agency about deaths in which there is
an indication of criminality. Provides such information as necessary to the appropriate law
enforcement agency as an investigation proceeds.
 Ensures that complete files are provided to the district attorney upon request, to assist the
district attorney to comply with applicable criminal discovery statutes.
 Provides educational and informational opportunities through talks and lectures to law
enforcement, medical and paramedical groups and other criminal justice and related
agencies.
 Represents the County at meetings, state and national forensic organizations board
meetings, seminars, conferences, professional associations meetings, private
organizations, and participates on related committees. Represents Medical Examiner at
Commissioners Court sessions on items requiring agenda discussions.
 Performs other job-related duties as assigned.

QUALIFICATION REQUIREMENTS: Graduation from an accredited college of medicine AND


postgraduate pathology training program AND at least seven (7) years of experience as a forensic
pathologist, including supervisory and management experience.

Licenses, Registrations, Certifications, or Special Requirements:


Possession of a licensed to practice as a medical doctor in the State of Texas as issued by the
Texas Medical Board.
American Board Certified in anatomical or anatomical/clinical pathology.
American Board Certified in forensic pathology.
Valid Texas Driver's License.

WORK ENVIRONMENT & OTHER INFORMATION:


Physical requirements include the ability to lift/carry up to 75-100 pounds and maneuvering
cadavers in excess of 200 pounds. Works in an autopsy room. Requires visual acuity, speech and
hearing, hand and eye coordination, and manual dexterity necessary to operate laboratory
equipment and basic office equipment and computer. Subject to standing, walking, sitting, repetitive
motion, reaching, climbing stairs, bending, stooping, kneeling, crouching, crawling, pushing, pulling,
balancing, client/customer contact, squatting to perform the essential functions. At times requires
driving and exposure to outdoor conditions. Subject to various biological/infectious, chemical,
mechanical, electrical, explosive and radiation hazards in indoors/outdoors work, and exposure to
fumes, noxious odors and toxic wastes. Exposure to computer monitors. Daily contact with bio-
hazardous materials. Frequent contact with funeral directors, law enforcement officers, and friends
and families of the bereaved. Exposure to high job stress. Must possess sufficient physical
strength and emotional stability to work under adverse conditions.

DISCLAIMER:
The characteristics of the work environment described are representative of those that an
employee encounters while performing the essential functions of this job. Reasonable
accommodations may be made to enable individuals with disabilities to perform the essential
functions.

Signature: Date:
EXHIBIT 2

--- -- -
STATEMENT OF ELECTED/APPOINTED OFFICER
(P11rs11n11t to Tex. Co11st. art. XVI, §1(/J), n111e11ded 2001)

1, 6a.m Av-d. v-ew.5 , do solemnly swear (or


affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or
promised to contribute any money or thing of value, or promised any public office or
employment for the giving or withholding of a vote at the election at which I was elected or
as a reward to secure my appointment or confirmation, whichever the case may be, so help
me God.

UNDER PENALTIES OF PERJURY, I DECLARE THAT I HA VE READ THE FOREGOING STATEMENT


AND THAT THE FACTS STATED THEREIN ARE TRUE.

~4{ ~ - k , / 9,,-,, _ __ 8_- _[ O


A,.,JJ-~ _ ·- _2-
_ tJ_ f?i>
_ ,
Officer's Signature Date

Lubbock f!.ounbj 1vi ./-e.v-·,lt\_ Me.d<ra.J fuc,.~rntr


Position to Which Elected/Appointed City and/or County

40
In the name and by the authority of
The State of Texas
OATH OF OFFICE

I, So....tll AV\,.dre..u.JS , do solemnly swear


(or affirm), that I will faithfully execute the duties of the office of
owrcG: v F bu&b>c-l-- C r,11y,•,iT'( ·TuJEf ;m Md.._,c,4/ OJ:tle-~ f the L C,»1e
State of Texas, and will to the best of my ability preserve, protect, and defend the
Constitution and laws of the United States and of this State, so help me God.

Affiant

SWORN TO and subscribed before me by affiant on this ./cJ +t..., day of


_,~""----='-- ---=-- - - - ' c:J-~ I ~ .

5/J ' . ~ ½3-J


~ n Administering Oath

f ,µo)C} br112-,;+n-rn
Printed Name

Tit~ d

38
STATEMENT OF ELECTED/APPOINTED OFFICER
(Pursuant lo Tex. Const. art. XVI, §l(b), amended 2001)

I, Sam Andrews do solemnly swear (or


affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or
promised to contribute any money or thing of value, or promised any public office or
employment for the giving or withholding of a vote at the election at which I was elected or
as a reward to secure my appointment or confirmation, whichever the case may be, so help
me God.

UNDER PENALTIES OF PERJURY, I DECLARE THAT I .HA VE READ THE FOREGOING STATEMENT
AND THAT THE FACTS STATED THEREIN ARE TRUE.

/2 2.l-2e,l)'

Officer's Signature Date

Lubbock County Medical Examiner Lubbock County

Position to Which Elected/Appointed City and/or County

40
In the name and by the authority of
The State of Texas
OATH OF OFFICE

I, Sam Andrews do solemnly swear


(or affirm), that I will faithfully execute the duties of the office of
Lubbock County Medical Examiner of the
State of Texas, and will to the best of my ability preserve, protect, and defend the
Constitution and laws of the United States and of this State, so help me God.

Affiant

st
S ~ TO and subscribed before me by affiant on this ,;)_j day of
Ii~~ -~/)/%'.

~15~~
SignreofPerson Administering Oath

Printed Name

38
EX H IB IT 3

NAAG Pathology Labs


A Professional Medical Corporation

19 September 2018

TO: Dr. Stephen Pustilnik


Forensic Pathologist

FR: Dr. Sam Andrews


Forensic Pathologist & Chief Medical Examiner

Dear Dr. Pustilnik,

RE: Autopsy directions

I hope that you are well. Thank you for your service to the people of Lubbock
County.

Over the course of the next couple of days, you are going to do several
autopsies. We have particular administrative interest in two of those cases:

1. 2018-0466 (Elaina Castilleja)


2.

The purpose of this letter is to outline a few basic expectations we have, given
the high profile nature of the cases.


URL www.naagpathology.com • Email consults@naagpatho logy.com
Phone 800-985-5346 • Fax 858-216-2233
CORPORATE 6540 Lusk Blvd., Suite C262 , San Diego, Californ ia, 92121
LABORATORY 11 I 07 Rose lle Street, Suites 226-228, San Diego, Cal ifornia, 92121
2018-0466

We understand this case to be a possible delayed abusive head trauma death.


Based on the available history, we are unaware of any "acute" injuries. In
addition to a standard, complete pediatric forensic autopsy, we ask that you:

1. Preserve the dura mater and brain in 20% formalin, suspended by a string
under the basilar artery
2. Remove the cervical spine (skull base to T1 or so) and preserve in10%
formalin
3. Remove and preserve any acute or remote skull fractures (or portion
thereof) that are obvious to you
4. Remove and preserve (in 20% formalin) the eyes and surrounding
periocular soft tissues
5. Remove and preserve (in 20% formalin) the remaining portions of the
thoracolumbar spinal cord
6. Remove, flush , hang and preserve the heart in 10% formalin
7. Remove, perfuse (through the bronchial tree) and preserve each lung
8. Liberally retain tissues in your stock jar (do not prepare any histology
cassettes at this time; this case will be "cut in" at our labs in San Diego)

If you find any acute injuries, you will likely need to do full body soft tissue
dissections (chest and abdomen, back, extremities).

-We understand this to be a case of "fall" vs. "collapse".

Pa1e2of3
SP - 09/29/2018 NAAG Patholo Labs
1.

We have flown our Chief Forensic Pathology Technician Ms. Lisa Hang to
Lubbock to provide you with assistance, as required . Lisa is there to help you,
and to represent the Lab, since she will be assisting the NP team in processing
the specimens you retain.

If you have any questions or concerns, please do not hesitate to reach out and
contact me. You should also feel free to speak with Kristii Johnson or Lisa Hang
directly.

With kind regards ,

NAAG PATHOLOGY LABS P.C.


per

Sam Andrews BSc MD FRCPC FCAP D-ABP


Lubbock County Chief Medical Examiner

CC: Lisa Hang


Kristii Johnson

Pa1e3 of3
SP - 09/29/2018 NAAG Patholo Labs
Exhibit 4
NAME POSITION PAPER

National Association of Medical Examiners Position Paper:


Recommendations for the Postmortem Assessment of
Suspected Head Trauma in Infants and Young Children
James R. Gill MD, Thomas Andrew MD, M.G.F. Gilliland MD, Jennifer Love PhD,
Evan Matshes MD, R. Ross Reichard MD

ABSTRACT: The National Association of Medical Examiners convened a panel to create a


position paper for recommendations for the investigation of infant deaths due to inflicted head
trauma. The correct certification of both the cause and manner of death is dependent upon
an evaluation of all available data including information derived from the investigation, scene,
postmortem examination, and ancillary studies. This paper provides recommendations for the
forensic pathologist on what constitutes the dataset to be produced during the postmortem
James R. Gill MD is the Chief examination of infants who have died of, or have apparently died of, inflicted head trauma.
Medical Examiner for the State of Specifically, this paper describes 1) procedures, 2) ancillary laboratory tests, and 3) forms
Connecticut. of documentation that are important in the investigation of these deaths. The evaluation and
Author Affiliations: New Hampshire documentation of such infant deaths involves the production of a detail oriented and thor-
Office of Chief Medical Examiner, oughly documented examination that is independently reviewable to support the multitude of
Concord, NH (TA), Brody School of inquiries that may follow from the public and the criminal justice system.
Medicine at East Carolina University,
Department of Pathology and
Laboratory Medicine, Greenville, KEYWORDS: Forensic pathology, Head trauma, Infant, Homicide
NC (MG), Harris County Institute
of Forensic Sciences, Houston,
TX (JL), New Mexico Office of the
Medical Investigator, Albuquerque, INTRODUCTION prosecution, dissolution of families, and putting
NM (EM), Mayo Clinic - Anatomical other children at risk. As such, NAME convened
Pathology, Rochester, MN (RR). The National Association of Medical Examiners a panel to generate recommendations for the in-
Contact Dr. Gill at: (NAME) was founded with “the dual purposes vestigation of these deaths. Complementary to a
jgill@ocme.org. of fostering the professional growth of physician thorough death investigation, the goal of the au-
Acad Forensic Pathol death investigators and disseminating the profes- topsy is not only to aid in the determination of the
2013 4 (2): 206-213 sional and technical information vital to the con- cause and manner of death, but also to produce an
https://doi.org/10 23907/2014.032
tinuing improvement of the medical investigation independently reviewable dataset that allows the
of violent, suspicious and unusual deaths” (1). original forensic pathologist (and others who fol-
© 2014 One method of fulfilling this mission is the pub- low) the best opportunity to review primary data
National Association of Medical Examiners lication of autopsy standards and position papers and potentially answer unanticipated future ques-
(2-5). NAME has previously published position tions. As Moritz stated, “If a negative or positive
papers on recommendations for the investigation postmortem finding is so important that it may
and certification of cocaine, heat-related, and make the difference between the freedom or im-
opioid deaths (3-5). prisonment, or the life and death of someone, ev-
ery attempt should be made to protect, preserve,
Fatalities due to traumatic brain injury (TBI) and record it for others to see and evaluate” (6).
among infants/young children, particularly ho-
micides, are among the most challenging in- Autopsy protocols have been developed for car-
vestigations for a forensic pathologist for many diac, metabolic, and sudden infant deaths (7-13)
reasons: any death in this age group may elicit to ensure consistency and comprehensive exami-
passionate responses even by trained profession- nations that look for a broad range of diseases.
als, the decedent may have been seen recently by Similarly, this paper’s aim is to describe an
Page 206 • Volume 4 Issue 2

a physician, a caregiver may be the perpetrator, autopsy protocol to facilitate a thorough, inde-
and the wrong diagnosis may result in a wrongful pendently reviewable investigation of pediatric
Table 1: Specific Autopsy Reporting and Procedures for Suspected Pediatric Head Injury Deaths
1. Photography including overall full body external color images with close-ups of specific findings and pertinent
negative findings.

2. A radiological skeletal survey with, as indicated, an internal examination of the musculoskeletal system to document
and/or exclude soft tissue or bone injury.

HEAD TRAUMA POSITION PAPER


3. Description (color, size, location) and photographic documentation of intracranial hemorrhage (epidural [EDH]),
subdural [SDH], or subarachnoid [SAH]).

4. Examination of the formalin-fixed brain, cranial dura, and spinal cord and the ability to consult with a board-certified
neuropathologist.

5. Description of the eyes and optic nerves both grossly (with photographic documentation) and microscopically:

A. Optic nerve sheath: describe the extent and location (subdural, subarachnoid, intradural, extraocular, orbital
fat) of any hemorrhage.

B. Retina: describe any hemorrhage/injury including the layers involved (preretinal, retinal, subretinal), extent
(few, numerous, extensive), and distribution (posterior pole, equatorial, and peripherally, including whether
they abut the ora serrata).

C. A neuropathologist or ophthalmic pathologist consultation may be useful.

6. Describe injury and hemorrhage of the anterior and posterior neck.

7. Medical record review as available for correlation with the history and autopsy findings.

head injury deaths. NAME has already published importance of the detection and documentation
general autopsy standards that are applicable to of other disease processes and injuries involving
infants/children with apparent head trauma. This the torso and extremities is vital.
traumatic brain injury protocol is not meant to
replace those preexisting standards but to pro- DISCUSSION
vide detailed techniques, procedures, and other
recommendations for these investigations. Each Initial Autopsy Investigation
case is unique, and this protocol is not meant as a
substitute for professional judgment. The follow- The initial autopsy investigation includes digital
ing protocol, however, may be considered prac- photography and full body radiologic imaging
tice recommendations for these investigations performed prior to the internal examination.
endorsed by the NAME Board of Directors.
Digital Photography
Infants die suddenly and unexpectedly for a
myriad of reasons that span the spectrum from Integral to the development of a dataset that fa-
natural disease to inflicted injury. Infant/child- cilitates independent case review is high qual-
hood deaths due to TBI may have no history or ity, color photography. Unlike film photography,
external evidence of trauma; therefore, unexpect- digital imaging allows the prosector to know
ed and unexplained infant/childhood deaths are immediately if the image is properly captured
thoroughly evaluated at the outset as they may (14). Therefore, digital photography is the pre-
be homicides or due to rare natural disease. As ferred method for photographic documentation
such, these deaths undergo a uniformly thorough for these investigations. A core list of recom-
investigation and documentation through the ini- mended photographs is included in Table 2. In
tial stages of the evaluation, documentation, and general, all external surfaces of the body are pho-
evisceration. As pathologic findings emerge dur- tographed with close-up photographs of specific
ing the course of the examination and prosection, findings. Important internal images of injury and
the necessity and/or utility of ancillary dissec- pertinent negative findings include subscalpular
tions and studies will become apparent, and their views, subdural/epidural/subarachnoid hemor-
selection can be tailored by the forensic patholo- rhage, skull, brain (external and representative
gist. cross sections), and eyes, including the optic
nerves, and subcutaneous and skeletal injury.
The subsequent protocol describes a progression
of relevant examinations and processes for the Plain Film Radiography
thorough description and documentation of per-
tinent findings (Table 1). Although the focus of As skeletal injury may not be detected during a
the paper is on the central nervous system, the standard autopsy, healed and healing fractures
Gill et al. • Page 207
Table 2: Core Photographs to be Obtained in Cases with Head Trauma or Suspected Head Trauma*
1. Identification photo (face)
NAME POSITION PAPER

2. Both sides of the face

3. Extended anterior neck

4. Chest, abdomen, and back

5. Genitals and perianal region

6. Arms and legs including wrists, ankles, and hands

7. Layered soft tissue plane dissections (chest and abdomen, scalp)

8. Exposed pericranial surfaces following usual reflection of the scalp

9. Exposed ectocranial surfaces following pericranial membrane removal

10. Epidural, subdural, and subarachnoid hemorrhages

11. Exterior surfaces of the brain and spinal cord

12. Representative cross sections of the brain and spinal cord

13. The cervical spine and/or cervical nerve roots, as indicated

14. External and internal surfaces of the eyes

*A case number should be visible in each photograph and a reference scale included in at least one photograph of major
wounds and injury to allow for 1:1 reproduction (15).

may be missed (16). Therefore, full body radio-


graphs, which may aid in the detection of these Table 3: Pediatric Radiologic Skeletal Survey
lesions, are indicated when investigating a death 1. Three views of the skull
with potential inflicted trauma. A radiologic skel- a. Anterior-Posterior (AP)
etal survey is necessary for the evaluation of b. Towne’s (30% angle view of the mandibular
condyles and the midfacial skeleton)
unexplained infant/childhood deaths that come c. Lateral
to the attention of the medical examiner/coroner
(ME/C) (16, 17). A pediatric skeletal survey pro- 2. Two views of the cervical spine
a. AP
tocol is provided in Table 3 (if board-certified ra- b. Lateral
diologists are not available to define the pediatric
skeletal survey). Forensic pathologists are trained 3. Two views of the trunk / torso
a. AP
to examine plain film radiographs. As some pe- b. Lateral
diatric fractures may be subtle and disease may
simulate fractures, consultation with a pediatric 4. Two views of the ribs
radiologist may be useful in some instances. a. LPO (Left posterior oblique)
b. RPO (Right posterior oblique)

Advanced Radiologic Techniques 5. Four views of the upper extremities


a. Left upper extremity
b. Right upper extremity
Postmortem computed tomography (CT) and c. Left hand
magnetic resonance imaging (MRI) offer the d. Right hand
ability to provide unobstructed and three-di-
6. Four views of the lower extremities
mensional visualization of body lesions. Some a. Left lower extremity
offices have in-house scanners or have arranged b. Right lower extremity
access with local hospitals. While these proce- c. Left foot
d. Right foot
dures likely provide superior results for certain
injuries over plain films, at the current time, the
strengths and weaknesses of each modality have MRI remains at the discretion of the forensic pa-
yet to be fully defined in the forensic autopsy thologist and subject to the availability of facili-
setting. In addition, plain film radiographs con- ties and funding for such modalities (18). While
Page 208 • Volume 4 Issue 2

tinue to be the choice for the clinical evaluation postmortem CT/MRI currently may be a useful
for most fractures in children. The use of CT/ adjunct, the external and internal autopsy exami-
nation remains the best method for the postmor- Skull: documentation of the location, dimension,
tem diagnosis of injury (19). Since some infants type (e.g., linear, depressed, comminuted, dia-
or children who ultimately die from injuries may static) of fracture(s) is achieved through the nar-
have a survival period in the hospital, antemor- rative report, digital photography, and radiologic
tem advanced imaging often has been obtained. images; some forensic pathologists may choose
Admission imaging and other hospital CT and to supplement their reports with diagrams. Skull
MR scans may provide valuable information and fractures may be subtle in the young pediatric

HEAD TRAUMA POSITION PAPER


should be sought and reviewed. population and therefore removal of the pericra-
nial membranous soft tissues along with the cra-
External and Internal Examination nial dura allow them to be better identified and
examined in detail. Microscopic sections help
Depending on the age of the infant/young child, confirm and document gross findings and may be
certain body measurements (e.g., head circum- useful for assessment of the stage of healing.
ference) in addition to length and weight may
be useful. A search for trace evidence and sexual Hemorrhage: the type [epidural (EDH), subdural
assault evidence collection, if indicated, is done (SDH), or subarachnoid (SAH)], location, size,
prior to washing the body to better visualize inju- color, and adherence are documented through ap-
ries. An external and internal examination is per- propriate use of narrative description and digital
formed per the NAME Forensic Autopsy Perfor- photography. The size of SDH and EDH, for ex-
mance Standards which also are followed when ample, may be documented by volume, weight,
describing an injury (e.g., type, location size, or three-dimensional measurements. The effects
shape, pattern) (15). of the hemorrhage on the brain (e.g., compres-
sion, herniation, shift) are noted in the autopsy
Specialized Autopsy Investigations When report. Microscopic sections help confirm and
Suspicious Findings are Encountered document gross findings and may be useful for
assessment of the stage of healing (21, 22).
As the autopsy progresses, findings suspicious
for inflicted traumatic brain injury (iTBI) may Brain: for optimal results, the brain and cranial
be detected. If so, the following specific exami- dura should be fixed in formalin (usually for a
nations and documentation of particular findings minimum of 10-14 days). Forensic pathologists
are recommended. These are described by body are trained to diagnose and describe traumatic
region. brain injuries. As some neuropathologic diseas-
es may be subtle or mimic trauma, consultation
Head with a board-certified neuropathologist may be
warranted. Express mail delivery services, gross
Scalp/subscalpular: the number, location, and photography, tissue retention, and microscopic
size of scalpular and subscalpular hemorrhages slides allow for consultation even after the initial
are best documented through a combination of brain dissection. Pertinent positive and negative
the photograph(s) and narrative description(s). gross and microscopic findings include: hypox-
Correlation should be made between sites of ia-ischemia, contusion, contusion hematomas,
hemorrhage and medical intervention (i.e., prior diffuse axonal injury, presence/absence of brain
surgery). Other discrete areas of hemorrhage swelling and herniation (type and extent), intra-
may occur, such as along cranial sutures from di- cerebral hemorrhage (location and extent), vas-
astasis due to marked brain swelling. The docu- cular malformations, congenital anomalies, and
mentation should convey the information neces- other focal lesions. Examination of the cerebral
sary for users of the autopsy report to determine dura includes description of any pathology (e.g.,
when hemorrhage is either due to a secondary subdural blood, surgical defects) and evaluation
process or a direct result of trauma. If there is (opening) of the sinuses (e.g., thrombosis). Mi-
concern for facial injury not apparent externally, croscopic examination of the dural sinus may
a formal face dissection is possible (20). Detec- help distinguish thrombus from postmortem con-
tion of otherwise unknown or underappreciated gealed blood.
impact sites of the face may change the context
of the infant death from one of non-impact to Microscopic sections for suspected inflicted trau-
one with demonstrable impact. Intraoral exami- matic brain injury include evaluations of pathol-
nations may reveal frenulum, inner cheek, and ogy identified grossly and sampling that allows
tongue injuries. Shaving of hair allows for better assessment of possible natural disease processes,
evaluation and documentation of scalp injuries. hypoxic-ischemic brain injury, and traumatic
Careful examination of the ears includes looking axonal injury. Hypoxic-ischemic brain injury in
inside and behind the ears. infants/children has a characteristic distribution
Gill et al. • Page 209
of injury, and those regions should be included
Table 4: Histologic Sampling for Hypoxic-Ischemic
in the evaluation in addition to regions typically
Brain Injury
involved in adults. A list of locations for his-
NAME POSITION PAPER

tologic sampling is included in Table 4. Diag- 1. Border zone (i.e., frontoparietal region)
nosis of diffuse traumatic axonal injury (dTAI)
requires traumatic axonal injury in multiple lo- 2. Deep gray structures (basal ganglia/thalamus)
cations including the corpus callosum, cerebral 3. Hippocampi (including subiculum)
hemispheric white matter, and brainstem. Infants
have been reported to have traumatic axonal in- 4. Midbrain (inferior colliculus)
jury isolated within the brainstem (23). Histo-
logic sampling for dTAI in infants and children 5. Pons
includes routine hematoxylin and eosin (H&E) 6. Cerebellum
sections. If available, examination with amyloid
precursor protein (APP) immunostain may be
useful in select instances. A list of locations for Table 5: Histologic Sampling for Diffuse Traumatic
histologic sampling for dTAI is included in Ta- Axonal Injury (dTAI)
ble 5. Limited sampling has been demonstrated 1. Posterior corpus callosum (near splenium)
to preclude the diagnosis of dTAI; therefore, if
traumatic axonal injury is present but insufficient 2. Parasagittal white matter
to diagnose dTAI, additional (bilateral) histolog-
3. Posterior limb of the internal capsule
ic sections should be evaluated. Assessment of
APP immunostaining patterns due to trauma and 4. Midbrain, pons, and medulla
a variety of other processes has previously been
reported (23-25). Microscopic evaluation for
natural disease processes includes examination Ocular examination: monocular indirect ophthal-
of neocortex, deep gray structures, brainstem, moscopy is a noninvasive and nondestructive
and cerebellum. Histologic sampling and use of technique to view the retina prior to autopsy and
special stains, however, may vary depending on the equipment is less expensive than that needed
the clinical history and gross pathology identified for ophthalmic endoscopy (27), however, it does
at autopsy. Marked non-perfused brain changes require additional equipment and training. A
(so-called “respirator brains”), for example, may gross dissection and microscopic examination of
dramatically affect the gross evaluation and hin- the eyes also is possible at autopsy. The interpre-
der histologic sampling and diagnosis. tation of retinal hemorrhages is beyond the scope
of this paper. Forensic pathologists, however,
Histologic evaluation of the cerebral dura is use- have a duty not only to diagnose and interpret,
ful to assess gross pathology and evaluate for but also to document and preserve findings. As
more subtle processes. Evaluation for intracel- an autopsy is often the best and sometimes only
lular iron deposition may facilitate assessment of chance to diagnose, confirm, or exclude certain
the stage of healing in SDH and EDH. The in- findings, pathologists, as the independent docu-
terface between sub/epidural blood and ongoing menters of facts, are best to err on the side of doc-
tissue healing is the best site for histologic evalu- umentation. A recent prospective clinical study
ation. Although there are criteria for the stages indicated that the assessment of retinal hemor-
of healing of a SDH, many variables affect this rhages may be useful as a predictor of iTBI (28).
process (e.g., size of hematoma, source of blood, Pending the publication of additional research, at
age of the individual), resulting in a somewhat a minimum, the ocular examination serves as a
predictable but potentially variable course (22). quality assurance measure that may confirm or
Retention of representative cortical regions, deep refute clinically diagnosed retinal hemorrhages.
gray structures, brainstem, and cerebellum may Therefore, the removal and examination of the
prove useful. In addition, samples from contra- eyes in instances of inflicted or suspected-inflict-
lateral white matter regions (e.g., parasagittal ed traumatic brain injury is recommended.
white, posterior limb of internal capsule) may be
necessary to diagnose or exclude dTAI. A technique for removal and examination of the
eyes has previously been published (29). After
Spinal cord: the spinal cord is examined at all removal, the eyes and periocular soft tissues are
three levels (cervical, thoracic, and lumbar). fixed in formalin prior to microscopic examina-
Some have recommended removal of the brain tion. For optic nerve sheath hemorrhage, the lo-
with the spinal cord still attached (26), but it is cation (subdural, subarachnoid, intradural, extra-
unclear if this technically difficult dissection ocular, orbital fat) is documented in the autopsy
Page 210 • Volume 4 Issue 2

yields any diagnostic value. report. For retinal hemorrhages, the involved lay-
ers (preretinal, retinal, subretinal), extent (few, description of the stage of healing (i.e., bone cal-
numerous, extensive), and distribution (poste- lus formation) is included in the autopsy report.
rior pole, equatorial, and peripherally, including Forensic pathologists are trained to examine
whether they abut the ora serrata) are described. plain film radiographs and bones. As some os-
Special stains, such as Prussian blue to identify seous findings may be unusual normal anatomic
hemosiderin, may be useful in some instances. variants, consulting with a board-certified foren-
Collection of vitreous will disturb the retina and sic anthropologist may be useful. Other useful

HEAD TRAUMA POSITION PAPER


should be postponed until adequate examination techniques and examinations include: stripping
of the retina, the optic nerve, and brain is done the parietal pleural lining to better visualize rib
and the value of the vitreous analysis for the spe- fractures, resecting the spinal column with the
cific case is considered. Photography with appro- medial ribs for further evaluation for posterior
priate lighting can aid in the documentation of rib fractures, and histologic sections of cutane-
ocular findings. ous/subcutaneous injuries (Prussian blue can
identify hemosiderin).
Neck
Ancillary Studies
Infants and children who die of inflicted injuries
may have injuries of the anterior and posterior Depending upon the circumstances and autopsy
neck. In addition to the standard anterior neck findings, ancillary studies for infectious (e.g., vi-
dissection, a posterior neck dissection also may ral, bacterial cultures), hereditary, metabolic, or
reveal internal injury. Injuries of the neck have thrombophilic diseases may be indicated.
been proposed to explain potential mechanisms
of death and techniques have been described for Records
the examination of the anterior and posterior
neck intrinsic spine structures/nerve roots (30- Review of the medical records including ante-
37). If the prosector is concerned for intrinsic mortem CT/MRI reports should be done as they
structural spinal/nerve root injury, then these may provide relevant clinical information. Re-
structures may be evaluated by various methods. view of reports generated by other agencies such
One method is an en bloc dissection of the cervi- as child protective services and law enforcement
cal osseous and neural structures with formalin investigation findings also may guide the foren-
fixation (37). Another is an in situ method that re- sic pathologist’s investigation and therefore these
moves the spinal cord and attached ganglia with- should be requested.
out the surrounding bone and soft tissues (38). In
this technique, the laminae are cut and the spi- CONCLUSION
nous processes removed. The lateral aspects of
the neural arches are then removed by cutting the The investigative value of each of the described
articulating facets and pedicles of the vertebrae. studies is often unknown at the onset of the au-
The freed sections of bone are removed and the topsy. Many procedures performed during an au-
spinal cord is removed with the ganglia attached. topsy create irreversible changes to tissues and
thus proactive documentation is critical. Ulti-
Trunk and Upper and Lower Extremities mately, the forensic pathologist must use medical
judgment on how to conduct each autopsy exam-
The NAME autopsy performance standards in- ination but would be wise to heed the admonition
clude procedures and descriptions for trunk in- that “I would rather explain why I did an exami-
juries. A subcutaneous examination of the arms, nation than why I did not.” In these instances, it
legs, and back and buttocks may improve detec- may be stated that the examination was done in
tion of occult subcutaneous and deep hemor- accordance with recommendations endorsed by
rhage (39). the Board of Directors of the National Associa-
tion of Medical Examiners.
Of particular importance in pediatric iTBI are
the identification and description of rib and other DISCLOSURES
skeletal fractures. In addition to radiographs, an
in situ skeletal examination may be useful to The opinions and conclusions of this paper have
further document or exclude injury. An in situ been reviewed and approved by the National As-
examination may include exposure of the shaft sociation of Medical Examiners Board of Direc-
and epiphyseal cartilages of the ribs, clavicles, tors and as such are endorsed by NAME. These
long bones, and scapulae (40). Traumatized or opinions and positions are based on a consensus
abnormal structures may be removed for addi- of the current literature, knowledge, and prevail-
tional analysis including gross (i.e., dry bone) or ing theories on this topic. As Scientific knowl-
histologic examination (41-43). When possible, a edge and experience grow, NAME reserves the
Gill et al. • Page 211
right to revise or update these opinions. The 12) Bove KE. Practice guidelines for autopsy pathology:
process by which NAME position papers are the perinatal and pediatric autopsy. Autopsy Commit-
tee of the College of American Pathologists. Arch
initiated, written, reviewed, and approved is Pathol Lab Med. 1997 Apr; 121(4):368-76.
NAME POSITION PAPER

publically available at https://netforum.avectra. 13) Ackerman MJ, Tester DJ, Driscoll DJ. Molecular
com/temp/ClientImages/NAME/2c26a527-f992- autopsy of sudden unexplained death in the young. Am
4f70-9d03-7941bff5319d.pdf. All scientific posi- J Forensic Med Pathol. 2001 Jun; 22(2):105-11.
tion papers endorsed by the National Association 14) Oliver WR. Considerations for gross autopsy photogra-
of Medical Examiners automatically expire five phy. Acad Forensic Pathol. 2011 Jul; 1(1):52-81.
years after publication unless reaffirmed, revised, 15) Peterson GF, Clark SC. Forensic autopsy performance
or retired at or before that time. This work is a standards. Marceline (MO): National Association of
product of NAME and as such, was not subjected Medical Examiners; 2006. 27 p.
to Academic Forensic Pathology Journal edito- 16) McGraw EP, Pless JE, Pennington DJ, White SJ. Post-
mortem radiography after unexpected death in neonates,
rial review. infants, and children: should imaging be routine? AJR
Am J Roentgenol. 2002 Jun; 178(6):1517-21.
The editors and publication staff do not report 17) Adamsbaum C, Mejean N, Merzoug V, Rey-Salmon
any relevant conflicts of interest. C. How to explore and report children with suspected
non-accidental trauma. Pediatr Radiol. 2010 Jun;
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18) Nolte K, Mlady G, Zumwalt R, et al. Postmortem X-ray
1) National Associatation of Medical Examiners [Inter- computed tomography (CT) and forensic autopsy: a
net]. Marceline (MO): The Association; c2005-2014 review of the utility, the challenges, and the future
[cited 2014 Jan 9]. Available from: https://netforum avectra implications. Acad Forensic Pathol. 2011 Jul; 1(1):4-50.
com/eweb/DynamicPage aspx?WebCode=LoginRequired& 19) Molina DK, Nichols JJ, Dimaio VJ. The sensitivity of
Site=NAME computed tomography (CT) scans in detecting trauma:
2) Peterson GF, Clark SC. Forensic autopsy performance are CT scans reliable enough for courtroom testimony?
standards. Am J Forensic Med Pathol. 2006 Sep; J Trauma. 2007 Sep; 63(3):625-9.
27(3):200-25. 20) Collins K. Special autopsy dissections. Northfield (IL):
3) Stephens BG, Jentzen JM, Karch S, et al. National College of American Pathologists; 2010. 50 p.
Association of Medical Examiners position paper on 21) Munro D, Merritt H. Surgical pathology of subdural
the certification of cocaine-related deaths. Am J Forensic hematoma. Arch Neurol Psych. 1934; 35:65-78.
Med Pathol. 2004 Mar; 25(1):11-3.
22) Hirsch CS, Armbrustmacher V. Spitz and Fisher’s
4) Donoghue ER, Graham MA, Jentzen JM, et al. Criteria medicolegal investigation of death. 4th ed. Springfield
for the diagnosis of heat-related deaths: National (IL): Charles C Thomas; c2006. Chapter 19, Part 1,
Association of Medical Examiners. Position paper. Trauma of the nervous system; p. 994-1077.
National Association of Medical Examiners Ad Hoc
23) Reichard RR, White CL 3rd, Hladik CL, Dolinak D.
Committee on the Definition of Heat-Related Fatalities.
Beta-amyloid precursor protein staining of nonacci-
Am J Forensic Med Pathol. 1997 Mar; 18(1):11-4.
dental central nervous system injury in pediatric
5) Davis GG, National Association of Medical Examiners autopsies. J Neurotrauma. 2003 Apr; 20(4):347-55.
and American College of Medical Toxicology Expert
24) Geddes JF, Vowles GH, Beer TW, Ellison DW. The
Panel on Evaluating and Reporting Opioid Deaths.
diagnosis of diffuse axonal injury: implications for
National Association of Medical Examiners position
forensic practice. Neuropathol Appl Neurobiol. 1997
paper: recommendations for the investigation, diagnosis,
Aug; 23(4):339-47.
and certification of deaths related to opioid drugs. Acad
Forensic Pathol. 2013 Mar; 3(1):77-83. 25) Reichard RR, White CL 3rd, Hladik CL, Dolinak D.
Beta-amyloid precursor protein staining in nonhomi-
6) Moritz AR. Classical mistakes in forensic pathology.
cidal pediatric medicolegal autopsies. J Neuropathol
Am J Clin Pathol. 1956 Dec; 26(12):1383-97.
Exp Neurol. 2003 Mar; 62(3):237-47.
7) Basso C, Burke M, Fornes P, et al. Guidelines for
26) Judkins AR, Hood IG, Mirchandani HG, Rorke LB.
autopsy investigation of sudden cardiac death. Virchows
Technical communication: rationale and technique for
Arch. 2008 Jan; 452(1):11-8.
examination of nervous system in suspected infant
8) Lee AH, Gallagher PJ. Post-mortem examination after victims of abuse. Am J Forensic Med Pathol. 2004 Mar;
cardiac surgery. Histopathology. 1998 Nov; 33(5):399- 25(1):29-32.
405.
27) Lantz PE, Adams GG. Postmortem monocular indirect
9) Rinaldo P, Yoon HR, Yu C, et al. Sudden and unexpected ophthalmoscopy. J Forensic Sci. 2005 Nov; 50(6) 1450-2.
neonatal death: a protocol for the postmortem diagnosis
28) Minns RA, Jones PA, Tandon A, et al. Prediction of
of fatty acid oxidation disorders. Semin Perinatol. 1999
inflicted brain injury in infants and children using reti-
Apr; 23(2):204-10.
nal imaging. Pediatrics. 2012 Nov; 130(5):e1227-34.
10) Byard RW, Krous H. Sudden infant death syndrome
29) Gilliland MG, Levin AV, Enzenauer RW, et al. Guide-
problems, progress, and possibilities. London: Arnold;
lines for postmortem protocol for ocular investigation of
c2001. Appendix I, International standardized autopsy
sudden unexplained infant death and suspected physical
protocol for sudden unexpected infant death; p. 319-33.
child abuse. Am J Forensic Med Pathol. 2007 Dec;
11) Sadler DW. The value of a thorough protocol in the 28(4):323-9.
investigation of sudden infant deaths. J Clin Pathol.
30) Matshes EW, Evans RM, Pinckard JK, et al. Shaken
1998 Sep; 51(9):689-94.
infants die of neck trauma, not brain trauma. Acad
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Forensic Pathol. 2011 Jul; 1(1):82-91.


31) Geddes JF, Vowles GH, Hackshaw AK, et al. Neuropa- 38) Peterson JEG, Love JC, Wolf DA, et al. Proceedings
thology of inflicted head injury in children. II. of the American Academy of Forensic Sciences 66th
Microscopic brain injury in infants. Brain. 2001 Jul; annual scientific meeting. Colorado Springs: American
124(Pt 7):1299-306. Academy of Forensic Sciences; c2014. G51, Ganglia
32) Hadley MN, Sonntag VK, Rekate HL, Murphy A. The and nerve root hemorrhage in cases of pediatric blunt
infant whiplash-shake injury syndrome: a clinical and head injury; p. 346.
pathological study. Neurosurgery. 1989 Apr; 24(4): 39) Spitz W, Spitz D. Investigation of deaths in childhood.

HEAD TRAUMA POSITION PAPER


536-40. In: Spitz W, Spitz D, editors. Spitz and Fisher’s medico-
33) Shannon P, Smith CR, Deck J, et al. Axonal injury and legal investigation of death. 4th ed. Springfield (IL):
the neuropathology of shaken baby syndrome. Acta Charles C Thomas; 2006. p. 1325.
Neuropathol. 1998 Jun; 95(6):625-31. 40) Love JC, Sanchez LA. Recognition of skeletal fractures
34) Geddes JF, Hackshaw AK, Vowles GH, et al. Neuro- in infants: an autopsy technique. J Forensic Sci. 2009
pathology of inflicted head injury in children. I. Patterns Nov; 54(6):1443-6.
of brain damage. Brain. 2001 Jul; 124(Pt 7):1290-8. 41) Love JC, Derrick SM, Wiersema JW. Skeletal atlas of
35) Adams VI. Autopsy technique for neck examination. I. child abuse. New York: Humana Press; 2011. 136 p.
Anterior and lateral compartments and tongue. Pathol 42) Kleinman PK, Marks SC, Blackbourne B. The metaphy-
Annu. 1990; 25 Pt 2:331-49. seal lesion in abused infants: a radiologic-histopatho-
36) Adams VI. Autopsy technique for neck examination. II. logic study. AJR Am J Roentgenol. 1986 May;
Vertebral column and posterior compartment. Pathol 146(5):895-905.
Annu. 1991; 26 Pt 1:211-26. 43) Lonergan GJ, Baker AM, Morey MK, Boos SC. From
37) Matshes EW, Joseph J. Pathologic evaluation of the the archives of the AFIP. Child abuse: radiologic-patho-
cervical spine following surgical and chiropractic inter- logic correlation. Radiographics. 2003 Jul-Aug;
ventions. J Forensic Sci. 2012 Jan; 57(1):113-9. 23(4):811-45.

Gill et al. • Page 213


 
 
 
 
 

Exhibit C 
   
AFFIDAVIT OF SANDRA GARCIA

STATE OF TEXAS §
COUNTY OF LUBBOCK §

On this Js/- day of May, 2019, Sandra Garcia, appeared before me, and after being
placed under oath affirmed the truth of the following:

"My name is Sandra Garcia. I am over the age of 18 years, of sound mind, and personally
acquainted with the facts stated in this affidavit."

l. "My name is Sandra Garcia, I am a custodian for the records of the Cow1ty Clerk's
Office for Lubbock County, Texas."

2. "The Agenda for the Commissioners Court, scheduled on July 25, I 994, contains
eighteen (18) agenda items. Agenda Item #9 is listed as 'Consider medical examiner
plan for Lubbock County (1 :30 p.m.). '"

3. "On the 25 th day of July, 1994, 'there was held a Regular Meeting of the Lubbock
County Commissioners Court for Lubbock County. Members of the Lubbock County
Commissioner's Comt were as follows: Don McBeath, County Judge; Kenny Maines,
Commissioner Precinct #1; James Kitten, Commissioner Precinct #2; Gilbert Flores,
Commissioner Precinct #3; and Alton Brazell, Commissioner Precinct #4.''

4. "Recorded as the minutes for the July 25 11!, 1994 Commissioners Court Meeting, 'the
Court unanimously voted to establish a Medical Examiner Office for Lubbock County,
effective October 1, 1994.''

5. "In that same commissioners court meeting, Dr. Jerry Spencer was unanimously voted
as the Lubbock County Medical Examiner, effective October 1, 1994.''

6. "In determining that the Lubbock County Medical Examiner's Office best serves the
public interest, subsequent contracts for the Lubbock County Medical Examiner Office
were executed by the Commissioners Court on behalf of Lubbock County pursuant to
Article 49.25 of the Texas Code of Criminal Procedure."

7. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract and agreement with Forensic Pathology Associates, P.A. to
provide forensic pathology services, effective from October 1, 1997 until September
30, 1998."

AFFIDAVIT OF SANDRA GARCIA


8. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract with Forensic Pathology Associates, P.A., to provide forensic
pathology services, effective from October 1, 1998 until September 30, 1999."

9. '·An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC), for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect starting October L 2003 until
September 30, 2005,"

10. "An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC) for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect staiting March 1, 2006 until
September 30, 2006."

11. "In February 2009, an Interlocal Agreement between Lubbock County and Texas Tech
University Health Sciences Center, on behalf of the School of Medicine, was signed in
regards to the operation of the Lubbock County Medical Examiner's Office, pursuant
to Article 49.25 of the Texas Code of Criminal Procedure."

12. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, whereas the Com1 unanimously voted approving to
appoint Dr. Sam Andrews as the Interim Acting Chief Medical Examiner pursuant to
Texas Code of Criminal Procedure 49.25."

13. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, the Court unanimously voted approving to ratify an
agreement behveen Lubbock County and NA.AG Pathology Labs for the performance
and management of the operation of the Lubbock County Medical Examiner's Office
effective August 5, 2018 through September 30, 20 I 8 and to authorize the County
Judge to sign-off on said agreement indicating ratification by the Lubbock County
Commissioners Court.''

14. "Recorded as the minutes for the Lubbock County Commissioners Court Regular
Meeting on September 24, 2018, the Court unanimously voted approving the County
Judge to Sign a Pathology Services Agreement with NAAG Pathology Labs P.C.

15. ''On September 24, 2018, County Judge for Lubbock County_ Thomas Head, signed a
Pathology Services Agreement, effective October 1, 2018, for Lubbock County
pursuant to the Texas Code of Criminal Procedure Chapter 49."

16. "As recorded as the minutes for the December 21, 2018, Regular Meeting of the
Lubbock County Commissioners Court. the Court unanimously voted approving to
appoint Dr. Sam Andrews as the Acting Chief Medical Examiner pursuant to Article
49.25 of the Texas Code of Criminal Procedure."

AFFIDAVIT OF SANDRA GARCIA


Further affiant sayeth not.

..-

1s-+
Sworn to and subscribed before me on this _ _ _ day of May 20 19.

i,•.{f::J,.;.··?:%,
.
,,,,,~V'tt,,,
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JO ANN GUTIERREZ CARDENAS
l~otary Pu bile, State of Taxes
Comm. Expires 04-07-2022
111
,fi~t,;,,,, Notary ID 3889377
t

AFFIDAVIT OF SANDRA GARCIA


 
 
 
 
 

Exhibit D 
   
Filed 3/4/2019 3:46 PM
Barbara Sucsy
District Clerk
Lubbock County, Texas

2019534421 ag
CAUSE NO. _ _ _ _ _ __

REBECCA VILLARREAL ORTIZ § IN THE DISTRICT COURT


§
§
§
§
V. §
§ _ _ _ JUDICIAL DISTRICT
EVAL-... MATSHES, MD, §
SAM ANDREWS, MD, §
NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND §
NAAG PATHOLOGY LABS, PC § LUBBOCK COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION FOR


MISHANDLING OF HUMAN REMAINS AND
INTERFERENCE WITH FINAL DISPOSITION RIGHTS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Rebecca Villarreal Ortiz, Plaintiff, and files this her

Original Petition for Mishandling of Human Remains and Interference with

Final Disposition Rights, complaining of Evan Matshes, MD, Sam Andrews,

JVID, National Autopsy Assay Group, LLC, and NAAG Pathology Labs, PC,

Defendants. For cause of action, Plaintiff would show this Court as follows:

A.
DISCOVERY CONTROL PLAN

l, Plaintiff intends to conduct discovery under a Level 2 discovery control

control plan and pleads that she seeks monetary relief of $100,000 or more.

Ortiz v. Matshes, et al. - Page 1 of 19


.Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
----~--==c==========2c==--===-------------------+
B.
PARTIES AND SERVICE

2. Plaintiff is Rebecca Villarreal Ortiz, an individual residing in Lubbock

County, Texas.

3. Defendant Evan Matshes, MD is an individual residing either in the

State of California or in the State of Texas and he may be served with process

at his regular place of work at 4434 S. Loop 289, Lubbock, Texas 79414, or at

6540 Lusk Blvd., Suite C262, San Diego, California 92121.

4. Defendant Sam Andrews, MD is an individual residing in the State of

Texas, and he may be served with process at 4434 S. Loop 289, Lubbock,

Texas 79414.

5. Defendant National Autopsy Assay Group, LLC (hereinafter "NAAG")

is a Texas limited liability company and may be served with process by

service on its registered agent for service, Capitol Corporate Services, Inc., at

206 E 9th Street, Suite 1300, Austin, Texas 78701.

6. Defendant NAAG Pathology Labs, PC (hereinafter "NAAG Labs"), is a

foreign entity registered with the Texas Secretary of State to conduct

business in the State of Texas and process may be served on its registered

agent for service, Capitol Corporate Services, Inc., at 206 E 9th Street, Suite

1300, Austin, Texas 78701.

Ortiz v. Matshes, et al. - Page 2 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
------================'.:":'.:".'.==="'-------------
C.
JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction over this matter because

Plaintiff seeks monetary relief within the Court's jurisdictional limits.

Further, this suit is not brought against any governmental unit or political

subdivision of the state, i.e., Lubbock County or the Lubbock County Medical

Examiner's Office, or any employee thereof. Rather, it is brought against (a)

NAAG and NAAG Labs, private entities with independent contractor status,

and (b) Evan l\1atshes and Sam Andrews, neither of whom are connty

employees and both of whom are sued in their individual capacities.

8. This Court has personal jurisdiction over the following defendants for

the following reasons:

a. Evan Matshes - because he has regular, systematic presence in

this state and the Court has general personal jurisdiction over him.

Furthermore, the acts or omissions complained of herein were

committed by Evan Matshes within the geographic boundaries of this

state and, therefore, the Court has specific personal jurisdiction over

him.

b. Sam Andrews- because he is a resident of the State of Texas

and has regular, systematic presence in this state and the Court has

general personal jurisdiction over him. Furthermore, the acts or

Ortiz v. Matshes, et al. - Page 3 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
_ _ _ _ __:I':n':t:'.e~rf=e=r='e=n=c=e~w~it':'h:=F:'i:=n::a::l~D=i=s=p=o=s=it::'i:"o:=ne'R~ige'h::t~s'-----------------·----+~
omissions complained of herein were committed by Sam Andrews

within the geographic boundaries of this state and, therefore, the Court

has specific personal jurisdiction over him.

c. NAAG - because it is a Texas Limited Liability Corporation.

Furthermore, the acts or omissions complained of herein were

committed by NAA.G within the geographic boundaries of this state

and, therefore, the Court has specific persbnal jurisdiction over it.

d. NAAG Labs - because it is a foreign entity that has registered

with the Texas Secretary of State to conduct business in the State of

Texas. This Court has general personal jurisdiction over NAAG Labs

because it engages regular, systematic business in this state and the

acts or omissions complained of herein were committed by NAAG Labs

within the geographic boundaries of this state.

D.
BACKGROUND FACTS

NAAG

9. NA.4_G Lahs and NAAG are independent contractors providing forensic

pathology services in Lubbock, Texas.


-----~--------·---··--------~·--·-----.. -----
10. Evan Matshes and Sam Andrews have an ownership interest in NAAG

Labs and NA.AG.

Ortiz v. 1.vlatshes, et al. - Page 4 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
______'.I~n~t':".e=r=fe'.:'r':'e'.:'n::c'.:e'.::~wi":th~F'::'i:':'n~a~!'::'D:':i':'.s=p=o=s=it:'i::o':n:::R:=ig~h::t:'s'....._________________ _
11. NAAG Labs provides laboratory testing and analysis and provides

:management and operational oversight of its employees, agents,

representatives, and contract laborers.

Elaina Castilleja

12. In approximately 2010, when Elaina was a young child, one of the

biological parents of Elaina Castilleja (hereinafter "Elaina") caused Elaina

traumatic brain injury (hereinafter TEI).

13. The rotational TBI caused by Anthony Castilleja or Valerie Villarreal,

the biological parents of Elaina, resulted in their prosecution and

punishment, in late 2010 or early 2011, in Sedgwick County, Kans_as.

11. Plaintiff is the adoptive parent of Elaina, an adoption order having

been entered on or about JVIarch 1, 2011.

15. Elaina suffered life-long, severe disabilities as a result of the TBI

caused to her in 2010.

16. Elaina was ten years of age in September 2018.

Elaina's last illness

17. On or about September 15, 2018, Elaina's health rapidly declined, and

she was admitted to the hospital.

18. On or about September 15, 2018, after pulmonary and infection

complications, Elaina suffered multiple respiratory arrests. After it was clear

Ortiz v. Matshes, et al. - Page S of 19


Plaintiff's Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
that Elaina was never going to recover from the acute, life-threatening

medical complications, and that the multitude of resuscitations were only

prolonging her suffering, the decision was made to permit Elaina to pass

away.

19. On or about September 15, 2018, Elaina passed away in the hospital.

Events following Elaina's passing

20. Elaina's remains were taken into the custody of NAAG, its agents,

employees, independent contractors, or representatives.

21. As is relevant here, a medical examiner is statutorily authorized, and

required, to hold inquests in cases of deaths from unknown or unnatural

causes to accurately determine the cause (and often manner) of death.

However, Defendants, had a duty to, but failed to exercise ordinary care to

ensure that the collection and retention of tissue was limited to those proper

purposes.

22. On or about September 19, 2019, on NAAG Labs letterhead, citing a

"particular administrative interest," Sam Andrews provided the following

instructions to Dr. Stephen Pustilnik, an independent contractor, for the

Ortiz v. Matshes, et al. - Page 6 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and

---================':":':::=====-------------
Interference with Final Disposition Rights
Z018.fl46&

We understand thfs case to be a possible delayed abusive head trauma death.


Based on the avaifabla history. we are unaware of any "acute• injuries. In
addition to a standard, complete pediatric forensic autopsy, we ask that you:

1. Preserve the dura mater and brain in 20% fonnalin. suspended by a string

under tha basilar artery


2. Remove the cervical spine (skull base to T1 or so) and preserve in10%

fonnalin
3. Remove and preserve any acute or remote skull fractures (or portion

thereof) that are obvious to you


4. Remove and preserve (in 20% formalin) the eyes and surrounding

periocular soft tissues


5. Remove and preserve (in 20% formalin) the remaining portions: of the

thoracofumbar spinal cord


e. Remove, flush, hang and preserve the heart In 10% fonnalin
7. Remove, perfuso (through the bronchial tree) and preserve each lung
8. Uberally retain tissues In your stock Jar (do not prepare any histology
cassettes at this time; this case will be ·cut in· at our labs in San Diego)

If you find eny acute Injuries, you wlU likely need to do full body sell tissue
dissections (chest and abdomen, back, extremitie~)-

23. Sam Andrews signed these instructions.

24. Upon information and belief, Evan Matshes assisted in preparing or

was otherwise responsible for these instructions.

25. Thee:ie instructions from Andrews and/a r M a t s h es were earned


. out.

26. Sam Andrews1 directions for the autopsy of Elaina were forensically

unjustified and excessive, considering (a) the history of h er 1nJury


. . and death
'

Ort!z ~- Matshes, et al . . Page 7 of 19


Plaintiffs Original Petition for Misha d .
_ _ _ __,I~n;!t'c"e~rc!'fe~r,!e~n~c~e~wgil!tghc!Fi~·~n~aglJD~i~·s~p~o~s~·t·~~¥~?~~l~mLg:o:f:H:u:m:a:n:::'.R:e~m:a~i~n~s~a~n~d~---
- lil 1gts
(b) the prior prosecution and conviction of Anthony Castilleja or Valerie

Villarreal, and (c) the intervening nine-year period between Elaina's TBI and

her death.

27. The removal, retention, and shipment to NAAG Labs' facility in San

Diego of the following tissue from Elaina's remains was not forensically

justified, was not solely to determine cause or manner of death, and went

well beyond the statutorily authorized "complete autopsy":

a. Entire brain and dura matter - Because the identification of

gliosis, axonal swelling Or distended nerve cells, etc. does not require

the entire brain and dura matter to be retained.

b. Cervical spinal column - Because identification of remote

pathologic lesions would not add to the proper certification of Elaina's

cause and manner of death.

c. Entire eyes and periocular structures - While Elaina's

retinas may have shown resolving remote hemorrhages, which would

be relevant to Elaina's TB!, this would not add insight into the cause

and manner of her death. Defendants caused Elaina's entire eyes and

p·eriocurar-·str--iictures to be removed, ~Which constifUt8cf excessive tissue

collection.

Ortiz v. Matshes, et al. - Page 8 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
----=============~------------
d. Thoracolumbar spinal cord - Because nothing about Elaina's

TBI could be expected to be learned from the removal of her

thoracolumbar spinal cord. No TB! pathology would be present in that

structure.

e. Heart - Because nothing about Elaina's TEI could be expected to

be learned from the removal of her heart. No TB! pathology would be

present in that structure. Exemplary tissue for microscopic

examination would have been sufficient.

f. Lungs - Because nothing about Elaina's TB] could be expected

to be learned from the removal of her lungs. No TBI pathology would

be present in those structures. Exemplary tissue for microscopic

examination would have been sufficient.

28. Plaintiff did not consent to said actions.

29. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or si_milar circumstances.

30. In cases of a known decedent, the collection and retention of tissue not

required for certification of the cause and manner of death is• not statutorily

authorized.

I
Plaintiffs Original Petition for Mishandling of Human Remains and
___...c!O'=r=t~iz~v.=M=a=ts=h'=e=s=,
Interference with=et==al.~·=P=a=g~e 9'f"o=f=1=9=='~'e-------------------J-·•,.
Final Disposition
2 Rights
-.
E.
COUNT 1- MISHANDLING OF REMAINS
(Brain and Dura Matter)

31. There is a special relationship between a decedent's next-of-kin and a

person who takes custody of the remains.

32. Defendants owed Plaintiff, as Elaina's next-of-kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

33. With respect to Elaina's entire brain and dura matter, Defendants

breached that duty by:

a. Removing and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

34. Defendants' breach of said duty of care, proximately caused Plaintiff

lnJury.

35. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or similar circumstances. The collection and

:retention of tissue not required for certification of the cause ancl manner of

death is not statutorily authorized.

Ortiz v. Matshes, et al. - Page 10 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
----'=--~=================~------------
F.
COUNT 2 MISHANDLING OF REMAINS
(Cervical Spinal column)

36. There is a special relationship between a decedent's next-of-kin and a

person who takes custody of the remains.

37. Defendants owed Plaintiff, as Elaina's next-of-kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

38. With respect to Elaina's cervical spinal column, Defendants breached

that dut:y b:y:

a. Removing and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

39. Defendants' breach of said duty of care, proximately caused Plaintiff

lilJllry.

40. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

Ortiz v . .1.lfatshes, et al. - Page 11 of 19


Plaintiff's Original Petition for Mishandling of Human Remains and j
______I'en'!ct~e~ro"£~e!ccre'=n~'=ce~w"i~t"'h"F'=<•~·n"'a"'l"D~ise!p~o2s~i~ti~o~n~R~i;;g"'h~t"-s----------------~-
G.
COUNT 3 - MISHANDLING OF REMAINS
(Eyes and Periocular Structures)

41. There is a special relationship between a decedent's next-of-kin and a

person who takes custody of the remains.

42. Defendants owed Plaintiff, -as Elaina's next-of-kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

43. With respect to Elaina's entire eyes and periocular structures,

Defendants breached that duty by:

a. Remqving and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

44. Defendants' breach of said duty of care 1 proximately caused Plaintiff

lllJUry.

45. A reasonably prudent forensic pathologist would not have taken the

same actions in the same 01· similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

Ortiz v. Matshes, et al. - Page 12 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and

----=============~==:'::::===--------------
Interference with Final Disposition Rights
H.
COUNT 4 - MISHANDLING OF REMAINS
(Spinal Cord)

46. There is a special relationship between a decedent's nextvofvkin and a

person who takes custody of the remains.

47. Defendants owed Plaintiff, as Elaina's nextvof-kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

48. With respect to Elaina's entire thoracolumbar spinal cord, Defendants

breached that duty by:

a. Removing and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

49. Defendants' breach of said duty of care, proximately caused Plaintiff

lnJury.

50. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

Ortiz v. Matshes, et al. - Page 13 of 19


Plaintiff's Original Petition for Mishandling of Human Remains and !
______I:':'n':':t':'e~r~£:':'e~re':':n':':c':':e':':::':w:'i':':t~hF'::i':':n::a::I::'D~is'::'p::o:':s'::'i':':ti':'o':'n'.::"'R':':i~g:':'h':':ts~-------------------t--
I.
COUNT 5 - MISHANDLING OF REMAINS
(Heart)

51. There is a special relationship between a decedent's next*of*kin and a

person who takes custody of the remains.

52. Defendants owed Plaintiff, as Elaina's nextRof*kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

53. With respect to Elaina's heart, Defendants breached that duty by:

a. Removing and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

54. Defendants' breach of said duty of care, proximately caused Plaintiff

lllJlITy.

55. A reasonably prudent forensic pathologist would not have taken the

same actions in the sarne or similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

Ortiz v. Matshes, et al. ~ Page 14 of 19


Plaintiff's Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
J.
COUNT 6 - MISHANDLING OF REMAINS
(Lungs)

56. There is a special relationship between a decedent's next-of-kin and a

person who takes custody of the remains.

57. Defendants owed Plaintiff, as Elaina's next-of-kin, a duty to exercise

ordinary care in the handling of Elaina's remains.

58. With respect to Elaina's lungs, Defendants breached that duty by:

a. Removing and retaining excessive tissue;

b. Failing to return to Elaina's body those portions of said tissue not

required for determining cause and manner of death; and

c. Failing to implement policies and procedures that would ensure

that only tissue required for identifying the cause and manner of death

were removed and retained.

59. Defendants' breach of said duty of care, proximately caused Plaintiff

lll)ill'Y-

60. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

Ortiz v. Matshes, et al. -Page 15 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
-----==::::'::'==========="-·------------ I
,-
!
K.
COUNT 7 - INTERFERENCE WITH RIGHT TO
POSSESSION FOR FINAL DISPOSITION

61. As Elaina's next-of-kin, Plaintiff had the right to possession of Elaina's

remains-brain, neck, spinal cord, eyes, heart, _and lungs included. This is a

right recognized by the common law and by statute (Texas Health & Safety

Code section 711.002(a)) for final disposition.

62. Defendants, by negligent act or omission, violated Plaintiffs right to

possession for final disposition.by causing Elaina's brain and dur'a matter,

neck, spinal cord, eyes, heart, and lungs to be removed and retained.

63. Defendants' acts or omissions proximately caused Plaintiff injury.

64. A reasonably prudent forensic pathologist would not have taken the

same actions in the same or similar circumstances. The collection and

retention of tissue not required for certification of the cause and manner of

death is not statutorily authorized.

L.
DAMAGES
65. Plaintiff seeks money damages within the Court's jurisdictional limits

for: (a) Mental anguish damages sustained in the past; and (b) Jvlental

anguish damages that Plaintiff will, in all probability, sustain in the future.

Ortiz v. Matshes, et al. - Page 16 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
Interference with Final Disposition Rights
----======='=''='=========='---------------
66. Plaintiff seeks exemplary damages from Defendants and allege that

Defendants were grossly negligent. Defendants were aware of a substantial

and unjustifiable risk of harm to Plaintiff but disregarded same.

M.
CIVIL CONSPIRACY

67. Defendants Matshes, Andrews, NAAG, and NAAG Labs were members

of a combination to accomplish an unlawful purpose or a lawful purpose by

unlawful means; Defendants had a meeting of the mind_s on the object or

course of action; one or more of the Defendants committed an unlawful, overt

act to further the, object or course of action; and Plaintiff suffered an injury as

a result of the unlawful act.

N.
RESPONDEATSUPERIOR

6'8. At all relevant times, Evan Matshes and Sam Andrews were employees

of NAAG and NAAG Labs. The torts complained of herein were committed

during the course and scope of their employment with NAAG and NAAG

Labs. As such, NAAG and NAAG Labs are vicariously liable for same.

o.
PIERCING THE CORPORATE VEIL

69. Tbe corporate form of NAAG and NAAG Labs should be disregarded

under the alter ego doctrine or because there are inadequately capitalized

with the effect of creating an injustice. NAAG and NAAG Labs were

Ortiz v. Matshes, et al. - Page 17 of 19


Plaintiffs Original Petition for Mishandling of Human Remains and
----~I=n=t=e=r=£e=r=e=n=c=•=~wi=th==F=i=n=a=l=D=i=s=p~o=s=U=i=o=n=R°'=ig~h~t=s'----------------·----t
I
organized and operated as a mere tool or business conduit, as to each other

and for Defendant Evan Matshes. Therefore, the corporate form of NAAG

and NAAG Labs _should be disregarded.

70. NAAG and NAAG Labs are inadequately capitalized to conduct the
I
business it was conducting. Therefor¢, the corporate form of NAAG and

NAAG Labs should be disregarded.

P.
JOINT AND SEVERAL LIABILITY

71. Defendants are jointly and severally liable for the torts complained of

he.rein.

Q.
CONDITIONS PRECEDENT

72. All conditions precedent have been performed or have occurred.

R.
REQUEST FOR DISCLOSURE

73. Plaintiff requests that Defendants disclose, within fifty (50) days of the

service of this request 1 the information or materials described in Rule 194.2

of the Texas Rules of Civil Procedure.

s.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the

Court enter judgment against Defendants, jointly and severally, for Plaintiffs

Ortiz v. Matshes, et al. - Page 18 of 19


Plaintiff's Original Petition for Mishandling of Human Remains and

-----========='====~'=='=====-------------~
Interference with Final Disposition Rights
actual damages, exemplmy damages, pre-judgment interest, post-judgment

interest, an\i costs of Court. Plaintiff further prays for such other relief to

which she may be entitled under law or equity.

Respectfully submitted,
WARE & GARCIA, PLLC

~Ware
SEN: 20864500
Benjamin P. Garcia
SEN: 24073120
Crystal A. Link
SEN: 24098349
1915 Broadway
Lubbock, Texas 79401
(v) (806) 763-5044
(f) (806) 763- 7536
office@waregarciala w .com
COUNSEL FOR PLAINTIFF

Ortiz v. Matshes, et al. - Page 19 of 19


flaintiffs Origin~LPetition for Mishandling of Human Remains and
Interference with Final Disposition Rights
 
 
 
 
 

Exhibit E 
   
Filed 3/29/2019 9:56 AM
Barbara Sucsy
District Clerk
Lubbock County, Texas

dm

CAUSE NO. 2019534421

REBECCA VILLARREAL ORTIZ, § IN THE 237TH DISTRICT COURT


§
Plaintiff §
§
vs. §
§ IN AND FOR
EVAN MATSHES, MD, SAM ANDREWS, §
MD, NATIONAL AUTOPSY ASSAY §
GROUP, LLC, AND NAAG PATHOLOGY §
LABS, PC, §
§
Defendants. § LUBBOCK COUNTY, TEXAS

DEFENDANTS’ ORIGINAL ANSWER

Comes now, EVAN MATSHES, MD; SAM ANDREWS, MD; NATIONAL AUTOPSY

ASSAY GROUP, LLC; and NAAG PATHOLOGY LABS, PC (“Defendants”) and answer

Plaintiff’s Original Petition as follows:

I.
DISCOVERY

Defendants allege that discovery in this case should be conducted at Level 3 under a

discovery control plan tailored to the circumstances of this lawsuit under TEX. R. CIV. P. 190.4.

II.
SPECIAL EXCEPTION

Defendants specially except to Plaintiff’s Original Petition because it does not state the

maximum amount of damages claimed as required by Texas Rule of Civil Procedure 47.

III.
GENERAL DENIAL

Defendants place in issue all matters contained in Plaintiff’s Original Petition by general

denial pursuant to TEX. R. CIV. P. 92.

DEFENDANTS’ ORIGINAL ANSWER - PAGE 1 147074V1


IV.
AFFIRMATIVE DEFENSES

Pleading in the alternative, Defendants allege as follows pertinent to their affirmative

defenses:

A. NAAG entered into a contract with Lubbock County to provide Chief Medical

Examiner services including administrative functions. Dr. Sam Andrews was appointed Chief

Medical Examiner of Lubbock County and has served in that position at all times relevant to the

allegations of Ms. Ortiz.

B. The office of the Medical Examiner is a position established by Texas law and by

Lubbock County. See, e.g., Tex. Code Crim. Pro. Art. 49.25. This statute sets forth the duties of a

Medical Examiner. Those duties include investigation of deaths in various circumstances including

a death within 24 hours after admission to a hospital, an unnatural death, or when the circumstances

of a death lead to suspicion that the death was caused by unlawful means. When a death under

these circumstances is reported to the Medical Examiner’s office, the Medical Examiner must

investigate the death. The statute provides that the Medical Examiner determine whether an

autopsy is necessary.

C. The sole proximate cause of any injuries or damages to Plaintiff are the acts or

omissions of Dr. Stephen Pustilnik. Dr. Pustilnik performed the autopsy in question. Dr. Pustilnik

performed all significant portions of the autopsy, even technical tasks normally delegated to a

technician. Dr. Pustilnik was an independent contractor of Lubbock County and has no affiliation

with Defendants. Because of problems in Dr. Pustilnik’s past, relayed by Lubbock County officials,

and the unique nature of the case, Dr. Andrews gave a list of suggestions to Dr. Pustilnik before the

autopsy. The suggestions were in accordance with standard autopsy techniques of qualified forensic

DEFENDANTS’ ORIGINAL ANSWER - PAGE 2 147074V1


pathologists. As a licensed medical doctor, Dr. Pustilnik was obligated to exercise his own

independent professional judgment and to act ethically. If Dr. Pustilnik did anything inappropriate

during the autopsy (and Defendants are unaware of anything he did inappropriately), that act or

omission was the result of Dr. Pustilnik exercising his own independent professional judgment and

Defendants have no liability for his acts or omissions. Plaintiff’s claims of mishandling of remains

and interference of right to possession for final disposition are based on the acts or omissions of Dr.

Pustilnik.

D. Plaintiff’s allegation that the manner in which the autopsy was performed is not

“statutorily authorized” is false. No Texas statute directs a medical examiner how to perform an

autopsy.

E. Plaintiff’s claims are based upon an alleged “special relationship” between Plaintiff

and Defendants. There is no relationship at all between Plaintiff and Defendants, and Defendants

owe no legal duties to Plaintiff. Any connection of any Defendant to the autopsy in question was in

the performance of the duties of the Medical Examiner’s office and duties owed to Lubbock County

and the State of Texas. Because this case involved potential criminal activity, it would be illegal for

the Medical Examiner to follow the wishes of a family member that conflicted with the Medical

Examiner’s duties to Lubbock County or the State of Texas.

F. Defendants contracted with Lubbock County to perform the governmental duties of

the operation of the Medical Examiner’s office. Any connection of any Defendant to the autopsy in

question was in the performance of the contract to operate the Medical Examiner’s office.

Accordingly, Defendants are immune from liability under the doctrine of governmental immunity.

DEFENDANTS’ ORIGINAL ANSWER - PAGE 3 147074V1


G. Any connection of Defendants with the autopsy in question was in the performance

of the contract to operate the Medical Examiner’s office. Accordingly, Defendants are immune

from liability under the doctrine of official immunity. Guerrero v. Tarrant County Mortician

Services Co., 977 S.W.2d 829 (Tex. App.—Fort Worth, 1998, rev. denied).

H. Defendants allege that under the facts and circumstances of this case, an award of

exemplary damages would violate substantive and procedural due process in violation of the Fifth

and Fourteenth Amendments of the United States Constitution in the following respects:

1. It is unconstitutional to allow a citizen to be punished upon the basis of a

standard as vague and ill-defined as the common law concepts upon which exemplary

damages can be awarded.

2. It is unconstitutional to allow a citizen to be punished for any conduct when

the citizen is unable to determine, prior to the hearing, what the standards used in assessing

that punishment will be and where the jury has almost total and unbridled discretion in

determining the amount of that punishment. The standards for assessing exemplary

damages in this case are unconstitutionally vague, and allow the jury to assess exemplary

damages based upon criteria wholly unrelated to Defendants’ conduct and completely

beyond the control of Defendants.

3. Because the award of exemplary damages has quasi-criminal attributes, both

as to rationale and effect, it is unconstitutional to award exemplary damages based solely

upon a mere preponderance of the evidence which may be provided by the slightest

circumstantial evidence, coupled with speculation and innuendo.

DEFENDANTS’ ORIGINAL ANSWER - PAGE 4 147074V1


4. It is unconstitutional for a state to allow a private citizen with a profit motive

to seek punishment of another citizen without the full protections of the Texas and United

States Constitutions, including privilege against self-incrimination, and the right not to be

placed in double jeopardy. Defendants allege that the fiction that punishment in civil suits

does not invoke the constitutional protections, whereas the same punishment in a criminal

suit does, should be abandoned. In either event, the state is forcing Defendant to forfeit

valuable property interests, and it matters not to Defendants whether they lose their property

to the state or to a private litigant.

5. It is unconstitutional to impose grossly excessive or arbitrary punishments

on a tortfeasor.

I. In the alternative, an award of exemplary damages, as sought by Plaintiff under the

facts and circumstances of this case, would violate the excessive fines, cruel and unusual

punishment, and due process clauses of the Texas Constitution.

J. Plaintiff’s right to recover exemplary damages is limited in accordance with the

provisions of §§ 41.001-13, Tex. Civ. Prac. & Rem. Code Ann.

WHEREFORE, PREMISES CONSIDERED, Defendants pray that their special exceptions

be sustained and that Plaintiff be ordered to replead, that Plaintiff take nothing by reason of her suit

and that Defendants be discharged from all liability and recover their costs, and for such other and

further relief to which they may show themselves justly entitled, either at law or in equity.

DEFENDANTS’ ORIGINAL ANSWER - PAGE 5 147074V1


Respectfully submitted,

RINEY & MAYFIELD LLP


Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509

By_______/s/Thomas C. Riney_____________
Thomas C. Riney

ATTORNEYS FOR DEFENDANTS EVAN MATSHES, MD;


SAM ANDREWS, MD; NATIONAL AUTOPSY ASSAY
GROUP, LLC; AND NAAG PATHOLOGY, PC

DEFENDANTS’ ORIGINAL ANSWER - PAGE 6 147074V1


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Defendants’ Original Answer was this
29th day of March, 2019, served on all known counsel of record in accordance with the Texas
Rules of Civil Procedure as follows:

Travis S. Ware VIA ELECTRONIC FILING


Benjamin P. Garcia
Crystal A. Link
office@waregarcialaw.com
WARE & GARCIA, PLLC
1915 Broadway
Lubbock, Texas 79401

ATTORNEYS FOR PLAINTIFF

__________/s/Thomas C. Riney_____________
Thomas C. Riney

DEFENDANTS’ ORIGINAL ANSWER - PAGE 7 147074V1