Professional Documents
Culture Documents
1/31/2018 3:44 PM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY
CC-18-00585-A
CAUSE NO. _________________
Plaintiff, Kolby Listenbee, files this original petition against Defendants TEXAS
BIG 12 CONFERENCE, INC.; DAVID GABLE; ZACH LACROSS; DILLON SMITH; CHRIS
MEACHAM; and JOHN AND JANE DOES 1-10, and alleges as follows:
DISCOVERY-CONTROL PLAN
Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions
process in Texas Rule of Civil Procedure 169 because Plaintiff requests injunctive relief, Plaintiff
2. Pursuant to Texas Rule of Civil Procedure 47, Plaintiff seeks monetary relief over
$1,000,000.
PARTIES
registered office is located in Tarrant County, Texas. Defendant TCU may be served with process
by serving its registered agent for service of process, Victor Boschini Jr., 2800 South University
business that does business in Tarrant County, Texas. Defendant TCU Board may be served with
process by serving its chairman, Mark L. Johnson, at 2800 South University Dr., Fort Worth, Texas
76129.
registered office is located in Dallas County, Texas. Defendant Big 12 may be served with process
by serving its Commissioner, Bob Bowlsby, at 400 East John Carpenter Freeway, Irving, Texas
75062.
County, Texas. Gable may be served with process at TCU, 2900 Stadium Dr., Fort Worth, TX
76129.
Tarrant County, Texas. LaCross may be served with process at TCU, 2900 Stadium Dr., Fort
Worth, TX 76129.
Tarrant County, Texas. Smith may be served with process at TCU, 2900 Stadium Dr., Fort Worth,
TX 76129.
10. Defendant Chris Del Conte (“Del Conte”) is an individual who resides in Fort
Worth, Tarrant County, Texas. Smith may be served with process at TCU, 2900 Stadium Dr., Fort
Worth, TX 76129.
11. Defendant Gary Patterson (“Patterson”) is an individual who resides in Fort Worth,
Tarrant County, Texas. Patterson may be served with process at TCU, 2900 Stadium Dr., Fort
Worth, TX 76129.
12. Defendant James Russell “Rusty” Burns (“Burns”) is an individual who resides in
Fort Worth, Tarrant County, Texas. Burns may be served with process at TCU, 2900 Stadium Dr.,
Lawrence, Douglas County, Kansas. Burns may be served with process at Kansas University,
Anderson Family Football Complex, 1146 Maine St., Lawrence, Kansas 66045.
14. Defendant John and Jane Does 1 – 10 are unknown Defendants who may be
JURISDICTION
15. The Court has subject matter jurisdiction over the lawsuit because the amount in
controversy exceeds this Court’s minimum jurisdictional requirements. This case cannot be
removed to federal court pursuant to 28 U.S.C. § 1441(b) because multiple defendants are forum
defendants.
16. Venue is proper in Dallas County pursuant to Texas Civil Practices & Remedies
Code Section 15 because Dallas County is the county of Defendant Big 12’s principal office in
FACTS
A. Background on Defendants
17. Upon information and belief, the following is known about the named Defendants
in this action:
18. Plaintiff Kolby Listenbee, born on January 25, 1994, is a life-long resident of
Tarrant County. Kolby attended Bowie High School in Arlington, Texas where he played
quarterback for the high school football team. In or around 2011, Kolby committed to Defendant
Texas Christian University to play college football. Kolby received a full scholarship to attend
19. In his freshman year, 2012, Kolby transferred from the quarterback position to wide
receiver. Kolby struggled to learn the new position that required learning new skills like running
routes and catching the ball. Kolby was unable to contribute to the team greatly because of this
position. His struggled continued into his sophomore year in 2013 as well.
20. Kolby then joined TCU’s Track and Field team his sophomore year. Kolby
competed in numerous track events, specializing in the 60m, 100m, and 200m races. Mr.
Listenbee’s speed garnered him many accolades and championships. This includes running a 6.67s
60m in 2015, a 10.04s 100m in 2015, and a 20.60s 200m in 2015. These times cemented Kolby’s
21. With the help of his track successes, Kolby became more comfortable and confident
on the football field. In his junior year, 2014, Kolby finished with 41 receptions for 753 years and
four touchdowns. Twelve of those receptions were for 30 or more yards – a feat surpassed by only
one other college wide receiver that year.2 Kolby averaged 18.4 yards per reception which was
1
Chatmon, Brandon, Track triumphs spark TCU's Kolby Listenbee to gridiron success, September 2, 2015;
http://www.espn.com/blog/big12/post/_/id/102836/track-triumphs-spark-tcus-kolby-listenbee-to-gridiron-success
2
Id.
on a national level. Several articles3 were written on Kolby and his potential to be a huge star in
23. In his senior year, Kolby played the first two games of the season and picked up
right where he left off his junior year. He caught 7 passes for 151 yards and 1 touchdown
contributing in wins against the University of Minnesota and Stephen F. Austin University. 4
24. On September 19, 2015, the TCU football team played the Southern Methodist
University football team in Fort Worth, Texas. Kolby started the game, as he had done in the two
previous games. Kolby played the entire first half of the game and started the third quarter.
25. At the 13-minute mark in the third quarter, TCU began a long drive downfield. The
score was 28-17 with TCU prevailing. TCU’s offense was on SMU’s 31 yard line and looked to
score. Defendant Patterson called for a passing play on 1st down and 10 yards to go. TCU’s
quarterback passed the ball to Kolby who caught the ball in the end zone. See, Figure 1. Kolby
landed awkwardly while still holding on to the ball. See, Figure 2 and 3. This catch gave TCU
3
Id; http://www.star-telegram.com/sports/college/big-12/texas-christian-university/article30618720.html
4
Individual Receiving Statistics for 2015 TCU Football Season; http://www.gofrogs.com/sports/m-footbl/stats/2015-
2016/indgbg.html
sideline, the pain in Kolby’s pelvic area caused him to fall to the ground. See, Figure 4.
his lower back. See, Figure 5. Kolby was in too much pain to return to the game.
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28. After the SMU game, Kolby was seen by Dr. Michelle Kirk at the TCU Sports
Medicine facility on TCU campus. Dr. Kirk diagnosed Kolby with osteitis pubis, pain in right
groin, and status post football injury on September 19, 2015. Dr. Kirk referred Kolby for a pelvic
at Touchstone Imaging in Fort Worth, Texas. Dr. Naveed Khan interpreted the study and stated
that Kolby suffered osteitis pubis with marrow edema and possible grade 1 strain of his obturator
muscles bilaterally.
30. Prior to September 19, 2015, Kolby had never sustained injuries to his pelvic
region.
31. Osteitis Pubis is an inflammation of the pubic symphysis (the cartilage that unites
Pubic symphysis
weeks until the athlete is pain-free, or has minimal pain and then light rehabilitation. If rest and
rehabilitation do not ameliorate the athlete’s condition, then corticosteroid therapy may be
considered.
5
http://emedicine.medscape.com/article/87420-overview
can result in atrophy of the surrounding tissues especially with frequent administration or excessive
34. In fact, the NCAA Sports Medicine Handbook 6 specifically recommends that:
35. Local anesthetics are also commonly used to treat athletes with osteitis pubis for
the pain the condition exudes. The NCAA Sports Medicine Handbook 7 specifically recommends
that:
6
2014-2015 NCAA Sports Medicine Handbook, Guideline 2N, Injectable Corticosteroids in Sports Injuries
7
2014-2015 NCAA Sports Medicine Handbook, Guideline 2M, The Use of Local Anesthetics
37. After his diagnosis of osteitis pubis, Kolby was instructed by Athletic Trainer David
Gable to immediately begin rehabilitation. Kolby relied on Defendant Gable’s expertise in the
field and began his rehabilitation of his hip the day after his injury.
38. On September 26, 2015, TCU football played a game against Texas Tech
University. Kolby did not play in the game. The next week, on October 3, 2015, TCU football
played a game against The University of Texas. Kolby also did not play in this game. TCU won
both games. Before and after the Texas Tech game, TCU football was ranked fourth in the nation.
After the University of Texas game, TCU football jumped up to second in the nation.
39. Between September 19, 2015 and October 3, 2015, a span of 14 days, Kolby
refrained from playing football games but was forced to practice and undergo rehabilitation.
40. On or around October 4, 2015, Kolby was examined by Dr. Kirk, Dr. Jason
Mogonye (another team doctor), Gable, LaCross, and Smith to determine his ability to return to
play. Kolby informed Defendants that he was still in pain. Despite his assertions, Kolby was
cleared by Defendants to practice with the team. Final clearance to return to play was given by
Defendant Patterson – the head coach of the TCU football team, Defendant Meacham – the
41. On October 10, 2015, Kolby played in his first game since the injury against Kansas
State University. Kolby, still in immense pain and with limited mobility, had zero catches for zero
yards and zero touchdowns. Defendant Patterson called Kolby’s performance “average.” 8
8
http://dev.rotoworld.com/recent/cfb/133231/kolby-listenbee
for Defendant TCU. It was evident that Kolby’s production suffered due to his injury. The chart
below illustrates Kolby’s statistics for each game following his injury on September 19, 2015.
43. Throughout the remainder of the season, Kolby received injections of local
anesthetics and corticosteroids from Drs. Kirk and/or Mogonye – TCU football’s team physicians.
These injections were given before the games and sometimes at halftime depending on Kolby’s
pain level. Kolby received an average of three injections per game before kickoff. Defendants
Gable, LaCross, and Smith (the Athletic Trainers) and Defendants Patterson, Meacham, and Burns
44. Between September 19, 2015 and October 3, 2015, Kolby faced tremendous
pressure to return to play despite his pain and his condition. These pressures came directly and
indirectly from Defendants Patterson, Gable, LaCross, Smith, Meacham, and Burns.
45. The first time Kolby was pressured was during the game Kolby was originally
injured in. Kolby landed awkwardly, limped off the field, and was then subsequently carried on
the sidelines by teammates to the Athletic Trainers’ table. As he was carried off, Defendant
Patterson congratulated Kolby on the touchdown. Defendant Gable stood near Kolby while he
received a massage on the table. Defendant Gable informed Defendants Patterson, Meacham, and
by teammates, Defendants Patterson, Meacham, and Burns personally told Kolby “to get back out
on the field.” Kolby refused as he was barely able to walk. Defendant Patterson was visibly upset
by Kolby’s decision.
46. After the game and for the next two weeks, Defendants Patterson, Meacham, and
Burns continually harassed, humiliated, pressured, and threatened Kolby to return to play. On
numerous occasions, the aforementioned Defendants made fun of Kolby’s injury by telling him,
in front of the entire TCU football team, that Kolby was “faking it” and that he was “soft.” The
coaching Defendants would tell Kolby’s teammates who were also injured that Kolby is only
“saying he was injured because ‘misery loves company.’” The Defendants would also verbally
contrast Kolby to other injured teammates who were playing through their injury during practices,
47. On the way to the September 26, 2015 game against Texas Tech University,
Defendant Patterson forced Kolby to sit in a different airplane seat than the one Kolby typically
sits. The football team allowed starting seniors to sit in the first class section while the remainder
of the team had to sit in coach class. Defendant Patterson forced Kolby to switch seats with the
third string quarterback and sit in coach class. The humiliating incident occurred in front of the
entire team.
48. A few days prior to the October 3, 2015 game versus the University of Texas
Longhorns, Defendant Patterson told Kolby that if TCU was to lose to Texas then Kolby would
not only be dismissed from the TCU football team, but also from TCU itself.
can result in atrophy of the surrounding tissues especially with frequent administration or excessive
34. In fact, the NCAA Sports Medicine Handbook 6 specifically recommends that:
35. Local anesthetics are also commonly used to treat athletes with osteitis pubis for
the pain the condition exudes. The NCAA Sports Medicine Handbook 7 specifically recommends
that:
6
2014-2015 NCAA Sports Medicine Handbook, Guideline 2N, Injectable Corticosteroids in Sports Injuries
7
2014-2015 NCAA Sports Medicine Handbook, Guideline 2M, The Use of Local Anesthetics
37. After his diagnosis of osteitis pubis, Kolby was instructed by Athletic Trainer David
Gable to immediately begin rehabilitation. Kolby relied on Defendant Gable’s expertise in the
field and began his rehabilitation of his hip the day after his injury.
38. On September 26, 2015, TCU football played a game against Texas Tech
University. Kolby did not play in the game. The next week, on October 3, 2015, TCU football
played a game against The University of Texas. Kolby also did not play in this game. TCU won
both games. Before and after the Texas Tech game, TCU football was ranked fourth in the nation.
After the University of Texas game, TCU football jumped up to second in the nation.
39. Between September 19, 2015 and October 3, 2015, a span of 14 days, Kolby
refrained from playing football games but was forced to practice and undergo rehabilitation.
40. On or around October 4, 2015, Kolby was examined by Dr. Kirk, Dr. Jason
Mogonye (another team doctor), Gable, LaCross, and Smith to determine his ability to return to
play. Kolby informed Defendants that he was still in pain. Despite his assertions, Kolby was
cleared by Defendants to practice with the team. Final clearance to return to play was given by
Defendant Patterson – the head coach of the TCU football team, Defendant Meacham – the
41. On October 10, 2015, Kolby played in his first game since the injury against Kansas
State University. Kolby, still in immense pain and with limited mobility, had zero catches for zero
yards and zero touchdowns. Defendant Patterson called Kolby’s performance “average.” 8
8
http://dev.rotoworld.com/recent/cfb/133231/kolby-listenbee
for Defendant TCU. It was evident that Kolby’s production suffered due to his injury. The chart
below illustrates Kolby’s statistics for each game following his injury on September 19, 2015.
43. Throughout the remainder of the season, Kolby received injections of local
anesthetics and corticosteroids from Drs. Kirk and/or Mogonye – TCU football’s team physicians.
These injections were given before the games and sometimes at halftime depending on Kolby’s
pain level. Kolby received an average of three injections per game before kickoff. Defendants
Gable, LaCross, and Smith (the Athletic Trainers) and Defendants Patterson, Meacham, and Burns
44. Between September 19, 2015 and October 3, 2015, Kolby faced tremendous
pressure to return to play despite his pain and his condition. These pressures came directly and
indirectly from Defendants Patterson, Gable, LaCross, Smith, Meacham, and Burns.
45. The first time Kolby was pressured was during the game Kolby was originally
injured in. Kolby landed awkwardly, limped off the field, and was then subsequently carried on
the sidelines by teammates to the Athletic Trainers’ table. As he was carried off, Defendant
Patterson congratulated Kolby on the touchdown. Defendant Gable stood near Kolby while he
received a massage on the table. Defendant Gable informed Defendants Patterson, Meacham, and
by teammates, Defendants Patterson, Meacham, and Burns personally told Kolby “to get back out
on the field.” Kolby refused as he was barely able to walk. Defendant Patterson was visibly upset
by Kolby’s decision.
46. After the game and for the next two weeks, Defendants Patterson, Meacham, and
Burns continually harassed, humiliated, pressured, and threatened Kolby to return to play. On
numerous occasions, the aforementioned Defendants made fun of Kolby’s injury by telling him,
in front of the entire TCU football team, that Kolby was “faking it” and that he was “soft.” The
coaching Defendants would tell Kolby’s teammates who were also injured that Kolby is only
“saying he was injured because ‘misery loves company.’” The Defendants would also verbally
contrast Kolby to other injured teammates who were playing through their injury during practices,
47. On the way to the September 26, 2015 game against Texas Tech University,
Defendant Patterson forced Kolby to sit in a different airplane seat than the one Kolby typically
sits. The football team allowed starting seniors to sit in the first class section while the remainder
of the team had to sit in coach class. Defendant Patterson forced Kolby to switch seats with the
third string quarterback and sit in coach class. The humiliating incident occurred in front of the
entire team.
48. A few days prior to the October 3, 2015 game versus the University of Texas
Longhorns, Defendant Patterson told Kolby that if TCU was to lose to Texas then Kolby would
not only be dismissed from the TCU football team, but also from TCU itself.
“next man up” and that his position as wide receiver would be given to the next player on the
roster.
50. On October 8, 2015, Defendant Patterson purposely told news reporters that he
believed the football team was actually better when Kolby was not playing. 9 Kolby took this as
an affront to his abilities and even more pressure to attempt to return to play despite not being
ready.
51. Most importantly to Kolby, Defendants Patterson, Meacham, and Burns informed
Kolby that if he did not return to play soon then they would begin to tell NFL scouts that he was
not tough enough for the professional level and/or he was faking his injury.
52. At the young and impressionable age of 21, Kolby believed that his college career
was at risk. Consequently, Kolby also believed his professional career would be at risk if he was
53. Due to this pressure and relying on Defendants Patterson, Gable, LaCross, Smith,
Meacham, and Burns’ assurances that he was clear to play, Kolby returned to the football field
54. The continuous injections numbed Kolby’s pain in his pelvic area allowing him to
practice with the team and take the field each Saturday for games. Without his knowledge, the
injections, specifically the corticosteroids, were deteriorating Kolby’s cartilage, muscles, and the
9
http://www.foxsports.com/college-football/story/tcu-horned-frogs-gary-patterson-kobly-listenbee-better-without-
100815
55. Defendant TCU is a Division 1 NCAA university. Its football team is a perennial
56. Defendant Big 12 is one of the top major collegiate conferences whose members
57. Upon information and belief, despite being on higher education’s biggest stage,
Defendants TCU and Big 12 lack policies, procedures, and protocols that are crucial for the health
58. Upon information and belief, these policies, procedures, and protocols include
safeguards against the immense pressure the student athletes receive from their team’s coaching
staff about return to play. The athletes are unable to voice their opposition to returning to play
59. Upon information and belief, in addition, Defendants TCU and Big 12 lack policies,
procedures, and protocols regarding the medical clearance to return to play as it relates to
60. Upon information and belief, all policies, procedures, and protocols are called for
and approved by Defendants Big 12, TCU, TCU Board, and Athletic Director Chris Del Conte.
61. After the 2015 football season, Kolby graduated from TCU in December 2015.
62. Kolby attempted to pursue his dream of becoming a professional football player in
63. In February 2016, Kolby attended the NFL Combine in Indianapolis, Indiana. He
participated in the 40 yard dash where he posted the second fastest time that year at 4.39 seconds.
due to the injections administered to him after his September 19, 2015 injury.
65. In April 2016, Kolby was selected in the 6th Round by the Buffalo Bills – a
66. In May 2016, Kolby signed a four-year rookie contract with the Bills for
$2,472,932.
67. Despite practicing with the Bills, the team placed Kolby on the non-football injury
68. Kolby was never able to play in the NFL due to his pelvic instability. In December
2016, Kolby underwent surgery to repair his pubic symphysis. A metal plate was placed in the
area to fuse his pelvic bones together. Kolby also had repairs made to his previous hernias.
69. Despite hard work and extensive rehabilitation throughout the 2016-2017 season,
Kolby was unable to play football. In June 2017, the Buffalo Bills waived Kolby.
70. Since June 2017, Kolby has visited with several NFL teams in hopes of landing a
spot on a professional roster which would mitigate his damages. Unfortunately, as the season
71. Towards the end of the season, Kolby was invited to join the practice squad of the
Miami Dolphins professional football team. Kolby accepted and played on their practice squad
for several weeks. Kolby was then released by Miami on December 5, 2017.
72. Shortly thereafter Kolby signed on to the practice squad for the Indianapolis Colts.
Kolby signed a reserve/futures contract with the Colts on January 1, 2018. A reserve/futures
contract is non-guaranteed and the salary is only paid if Kolby makes the team.
73. As a result of Defendants’ actions and/or omissions, Kolby suffered past and future
damages, including, past and future medical expenses, past and future lost wages and/or loss of
earning capacity, past and future pain and suffering past and future mental anguish, past and future
physical disfigurement, past and future physical impairment, and past and future aggravation of
preexisting condition.
74. In addition, due to the breach of contract by Defendants, Kolby has suffered losses
in value and losses in profits, including, but not limited to NFL career earnings, track & field
75. In addition, Plaintiff’s injury resulted from Defendants’ gross negligence, malice,
or fraud, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies
76. In addition, Plaintiff is entitled to recover reasonable and necessary attorney fees.
77. Plaintiff seeks unliquidated damages within the jurisdictional limits of this
78. Plaintiff hereby incorporates all prior allegations as though set forth herein.
79. Defendants owed a legal duty to Plaintiff. Defendants owed a duty to Plaintiff as
the school and conference of higher education in which Plaintiff agreed to receive his education
from and played for on the football field. Defendants owed a duty to possess and apply the
knowledge and to use the skill and care that is used by a reasonable and prudent educational
to Plaintiff.
80. Defendants breached its duties and were negligent as it relates to the incident in
question. Defendants’ negligence, errors, acts, and omissions include, but are not limited to:
82. Defendants’ breach of duty proximately caused injury to Plaintiff, which resulted
in Plaintiff suffering past and future damages, including, past and future medical expenses, past
and future lost wages and/or loss of earning capacity, past and future pain and suffering past and
83. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
84. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
85. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
86. Plaintiff hereby incorporates all prior allegations as though set forth herein.
87. Defendants employed Team Physicians Dr. Karen Michele Kirk and Dr. Jason
Mogonye as well as Defendants David Gable, Zach LaCross, Dillon Smith, James Russell Burns,
Douglas Meacham, Gary Patterson, and Chris Del Conte during the incident in question.
88. The aforementioned individuals were unqualified to handle their duties and
89. Defendants knew or should have known that hiring and retaining the
aforementioned individuals would create an unreasonable risk of injury to members of their student
athlete body.
90. Defendants failed to use ordinary care in hiring, retaining, supervising, training,
the aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.
93. Defendants’ actions and/or omissions proximately caused injury to Plaintiff, which
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
94. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
95. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
96. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
97. Plaintiff hereby incorporates all prior allegations as though set forth herein.
the course of a transaction in which Defendants had an interest – recruiting Plaintiff for the school’s
football team.
102. Defendants’ actions and/or omissions were with conscious indifference, malicious,
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
104. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
105. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
106. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
107. Plaintiff hereby incorporates all prior allegations as though set forth herein.
Plaintiff.
109. It was Defendants’ responsibility to properly care for and treat Plaintiff.
110. That the events causing the injuries and damages to Plaintiff were of a kind which
111. Thus, the doctrine of res ipsa loquitur is applicable as a theory of negligence,
112. Plaintiff hereby incorporates all prior allegations as though set forth herein.
114. Defendants’ conduct, as described above, during the incident in question was
117. Plaintiff’s severe emotional distress cannot be remedied by any other cause of
action.
Plaintiff suffering past and future damages, including, past and future medical expenses, past and
future lost wages and/or loss of earning capacity, past and future pain and suffering past and future
mental anguish, past and future physical disfigurement, past and future physical impairment, and
119. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
121. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
122. Plaintiff hereby incorporates all prior allegations as though set forth herein.
124. Defendants’ representations to Plaintiff were material because the statements were
important to Plaintiff in making his decision to attend Defendants’ school and play for Defendants’
knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on
126. Defendants made the false representations knowing they were false.
127. Defendants made the false representations recklessly, as a positive assertion, and
129. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
131. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
132. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
133. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the fraudulent conduct of the Defendants, without any contributing negligence on the
134. Plaintiff hereby incorporates all prior allegations as though set forth herein.
135. The acts and/or omissions of Team Physicians Dr. Karen Michele Kirk and Dr.
Jason Mogonye as well as Defendants David Gable, Zach LaCross, Dillon Smith, James Russell
Burns, Gary Patterson, and Chris Del Conte, were performed while in the employment of
Defendants, TCU and TCU Board, and were within the course and scope of that employment or
and gross negligence of the aforementioned individuals under the doctrine of respondeat superior.
137. Plaintiff hereby incorporates all prior allegations as though set forth herein.
138. At the time of the incident in question, Defendants either (1) intentionally granted
Kirk and Mogonye the authority to act on Defendants’ behalf, (2) intentionally allowed Plaintiff
and other student athletes to believe that Kirk and Mogonye had authority to act on Defendants’
behalf, or (3) through a lack of due care, allowed Kirk and Mogonye to believe that their actions
139. Defendants held out Kirk and Mogonye as having the authority to act on
e. Providing Kirk and Mogonye with official identification badges for security
access to Defendants’ football stadium;
f. Providing Kirk and Mogonye with access to Plaintiff and other student
athletes before, during, and after football games, including during practices;
g. Expressing that Kirk and Mogonye were the football team’s “team
physicians” on Defendants’ website, See, Figure 7.10
10
http://www.gofrogs.com/school-bio/tcu-medicine.html
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140. At the time of the incident in question, Kirk and Mogonye were acting within the
scope of the authority granted by Defendants when they negligently treated Plaintiff.
141. Due to Defendants’ conduct, Plaintiff reasonably believed that Kirk and Mogonye
had the authority to act on the Defendants’ behalf. A reasonably prudent person, using diligence
and discretion in light of the Defendants’ conduct, would naturally and reasonably suppose that
action.
Plaintiff suffering past and future damages, including, past and future medical expenses, past and
future lost wages and/or loss of earning capacity, past and future pain and suffering past and future
mental anguish, past and future physical disfigurement, past and future physical impairment, and
175. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
176. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
177. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
a student athlete and Defendants were the team physicians assigned to and that treated Plaintiff.
179. Before obtaining Plaintiff’s consent for the treatment plan they implemented for
Kolby’s condition, Defendants did not properly inform Plaintiff of the inherent risks and hazards
associated with such plan. Specifically, Defendants did not inform Plaintiff of the risks and
hazards associated with the use of corticosteroids and local anesthetics nor inform Plaintiff of the
risks and long term implications of returning to play before Plaintiff’s condition had completed
healed.
pelvic area, including the cartilage, bone, muscle, and tissue deteriorated due to Defendants’
actions and/or omissions, including, but not limited to the continuous use of corticosteroids and
181. A reasonable person would have refused the treatment plan if the risks and hazards
Plaintiff suffering past and future damages, including, past and future medical expenses, past and
future lost wages and/or loss of earning capacity, past and future pain and suffering past and future
mental anguish, past and future physical disfigurement, past and future physical impairment, and
183. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
184. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
185. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
186. Plaintiff hereby incorporates all prior allegations as though set forth herein.
188. Defendants’ representations to Plaintiff were material because the statements were
important to Plaintiff in making his decision to allow Defendants to implement their proposed
knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on
190. Defendants made the false representations knowing they were false.
191. Defendants made the false representations recklessly, as a positive assertion, and
192. Defendants either intended for Plaintiff to rely on these false representations or had
193. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
195. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
196. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
were due to the fraudulent conduct of the Defendants, without any contributing negligence on the
198. Plaintiff hereby incorporates all prior allegations as though set forth herein.
199. Defendants concealed and/or failed to disclose material facts relating to the
200. Defendants had a duty to disclose the information to Plaintiff because Defendants
had a fiduciary duty to do so as well as a duty pursuant to their physician-patient relationship with
Plaintiff.
201. The information concealed or not disclosed was material because it affected
Plaintiff’s health, well-being, and future. Specifically, Defendants concealed or did not disclose
information that the continuous injections given to Plaintiff would deteriorate his pelvic area
causing him great harm. Defendants also concealed or did not disclose information that Plaintiff
was not fully healed at the time they cleared him to return to play.
202. Defendants knew Plaintiff was ignorant of the information and did not have an
203. Defendants deliberately remained silent and did not disclose the information to
Plaintiff.
204. By deliberately remaining silent, Defendants intended for Plaintiff to act without
the information.
which resulted in Plaintiff suffering past and future damages, including, past and future medical
expenses, past and future lost wages and/or loss of earning capacity, past and future pain and
suffering past and future mental anguish, past and future physical disfigurement, past and future
207. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
208. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
209. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
210. Plaintiff hereby incorporates all prior allegations as though set forth herein.
211. Defendants owed a legal duty to Plaintiff. Defendants owed a duty to Plaintiff as
the head coach and assistant coach of the TCU football team during the incident in question.
Defendants owed a duty to possess and apply the knowledge and to use the skill and care that is
used by a reasonable and prudent football coach in the same or similar circumstances. Defendants
212. Defendants breached its duties and were negligent as it relates to the incident in
question. Defendants’ negligence, errors, acts, and omissions include, but are not limited to:
d. negligently lacking the protective equipment necessary for football players who
returned to play after being treated for the injury Plaintiff suffered;
214. Defendants’ breach of duty proximately caused injury to Plaintiff, which resulted
in Plaintiff suffering past and future damages, including, past and future medical expenses, past
and future lost wages and/or loss of earning capacity, past and future pain and suffering past and
future mental anguish, past and future physical disfigurement, past and future physical impairment,
215. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
216. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
were due to the negligence and gross negligence of the Defendants, without any contributing
218. Plaintiff hereby incorporates all prior allegations as though set forth herein.
219. Defendants decided that Team Physicians Dr. Karen Michele Kirk and Dr. Jason
Mogonye as well as Defendants David Gable, Zach LaCross, and Dillon Smith, should be
employed by Defendant TCU for the benefit of the TCU football team.
220. Team Physicians Dr. Karen Michele Kirk and Dr. Jason Mogonye as well as
Defendants David Gable, Zach LaCross, and Dillon Smith were unqualified to handle their duties
221. Defendants knew or should have known that hiring and retaining the
aforementioned individuals would create an unreasonable risk of injury to members of their student
athlete body.
222. Defendants failed to use ordinary care in hiring, retaining, supervising, training,
223. Defendants’ negligence in hiring, retaining, supervising, training, and managing the
aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.
224. Defendants’ actions and/or omissions were with conscious indifference, malicious,
225. Defendants’ actions and/or omissions proximately caused injury to Plaintiff, which
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
and future mental anguish, past and future physical disfigurement, past and future physical
226. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
227. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
228. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
229. Plaintiff hereby incorporates all prior allegations as though set forth herein.
231. Defendants made the representations in the course of Defendants’ business and in
the course of a transaction in which Defendants had an interest – recruiting Plaintiff for the school’s
football team.
234. Defendants’ actions and/or omissions were with conscious indifference, malicious,
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
236. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
237. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
238. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
239. Plaintiff hereby incorporates all prior allegations as though set forth herein.
240. Defendants directly and proximately caused the injuries and damages suffered by
Plaintiff.
241. It was Defendants’ responsibility to properly care for and treat Plaintiff.
242. That the events causing the injuries and damages to Plaintiff were of a kind which
244. Plaintiff hereby incorporates all prior allegations as though set forth herein.
246. Defendants’ conduct, as described above, during the incident in question was
249. Plaintiff’s severe emotional distress cannot be remedied by any other cause of
action.
Plaintiff suffering past and future damages, including, past and future medical expenses, past and
future lost wages and/or loss of earning capacity, past and future pain and suffering past and future
mental anguish, past and future physical disfigurement, past and future physical impairment, and
251. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
252. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
253. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
254. Plaintiff hereby incorporates all prior allegations as though set forth herein.
256. Defendants’ representations to Plaintiff were material because the statements were
important to Plaintiff in making his decision to attend Defendants’ school and play for Defendants’
knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on
258. Defendants made the false representations knowing they were false.
259. Defendants made the false representations recklessly, as a positive assertion, and
260. Defendants either intended for Plaintiff to rely on these false representations or had
261. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed
resulted in Plaintiff suffering past and future damages, including, past and future medical expenses,
past and future lost wages and/or loss of earning capacity, past and future pain and suffering past
and future mental anguish, past and future physical disfigurement, past and future physical
263. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
264. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
265. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the fraudulent conduct of the Defendants, without any contributing negligence on the
266. Plaintiff hereby incorporates all prior allegations as though set forth herein.
267. Defendants concealed and/or failed to disclose material facts relating to the
268. Defendants had a duty to disclose the information to Plaintiff because Defendants
had a fiduciary duty to do so as well as a duty pursuant to their physician-patient relationship with
Plaintiff.
269. The information concealed or not disclosed was material because it affected
Plaintiff’s health, well-being, and future. Specifically, Defendants concealed or did not disclose
information that the continuous injections given to Plaintiff would deteriorate his pelvic area
was not fully healed at the time they cleared him to return to play.
270. Defendants knew Plaintiff was ignorant of the information and did not have an
271. Defendants deliberately remained silent and did not disclose the information to
Plaintiff.
272. By deliberately remaining silent, Defendants intended for Plaintiff to act without
the information.
which resulted in Plaintiff suffering past and future damages, including, past and future medical
expenses, past and future lost wages and/or loss of earning capacity, past and future pain and
suffering past and future mental anguish, past and future physical disfigurement, past and future
275. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
276. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
277. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
278. Plaintiff was a student athlete and Defendants were the head coach (Patterson) and
Kolby’s condition, Defendants did not properly inform Plaintiff of the inherent risks and hazards
associated with such plan. Specifically, Defendants did not inform Plaintiff of the risks and
hazards associated with the use of corticosteroids and local anesthetics nor inform Plaintiff of the
risks and long term implications of returning to play before Plaintiff’s condition had completed
healed.
280. Plaintiff was injured by the occurrence of an undisclosed risk. Specifically, Kolby’s
pelvic area, including the cartilage, bone, muscle, and tissue deteriorated due to Defendants’
actions and/or omissions, including, but not limited to the continuous use of corticosteroids and
281. A reasonable person would have refused the treatment plan if the risks and hazards
Plaintiff suffering past and future damages, including, past and future medical expenses, past and
future lost wages and/or loss of earning capacity, past and future pain and suffering past and future
mental anguish, past and future physical disfigurement, past and future physical impairment, and
283. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
284. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
285. All injuries suffered by Plaintiff relating to this incident, past, present and future,
were due to the negligence and gross negligence of the Defendants, without any contributing
Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
CONDITIONS PRECEDENT
All conditions precedent to Plaintiff’s claim for relief have been performed or have
occurred.
Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within
50 days of the service of this request, the information or material described in Rule 194.2.
Under Texas Rule of Civil Procedure 192, Plaintiff requests that Defendant produce all
medical records in its possession pertinent to Plaintiff Kolby Listenbee, including, but not limited
PRAYER
For these reasons, Plaintiff asks that the Court issue citation for Defendants to appear and
answer, and that Plaintiff be awarded a judgment against Defendants for the following: actual
damages, exemplary damages, Prejudgment and postjudgment interest, Court costs, attorney fees,