Petition for Writ of Certiorari — Barbara Lindsey, Petitioner v. Max. F. Adler, M.D., P.A., fka Park Cities Dermatology Center, aka Coppell Dermatology Center, et al.

No.

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rleet'

Supreme Court of tf)e ©uitet States

JUN 1 3 2023

ggiag.nsw

BARBARA LINDSEY,

Petitioner,

v.

MAX F. ADLER, M.D., RA. F/K/A PARK CITIES

DERMATOLOGY CENTER A/K/A COPPELL

DERMATOLOGY; MAX F. ADLER; LINDA L. WHITE;

AND JOHN DOES,

Respondents.

On Petition For A Writ Of Certiorari

To The Fifth District Court Of Appeals

For The State Of Texas

PETITION FOR WRIT OF CERTIORARI

Barbara Lindsey

Petitioner Pro Se

2800 Westminster Ave.

Dallas, TX 75205

gokudu@aol. com

682-554-7341

RECEIVED

JUN 1 5 2023

1

QUESTIONS PRESENTED

This appeal presents an important and novel

question concerning the claim splitting branch of res

judicata or claim preclusion. In-this case, Petitioner

brought a prior action predicated upon the improper

placement of a foreign object in her body, which was

dismissed. Subsequently, another foreign object was

discovered, which was not related to the prior object.

The Texas Courts dismissed the claim under the rule

against claim splitting.

The following issues are thus raised:

1. Does it violate the Due Process Clause to give

preclusive effect to judgments rendered in proceedings

against a party against who did not have a “full and

fair opportunity” to litigate the claim?

2. Does it violate the Due Process Clause to bar

a plaintiff from bringing an action who did not know or

could not reasonably have known of her injuries at the

time of the first action?

.

i . *

11

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

RELATED CASES

Lindsay v. Adler, No. 05-12-00010-CV, 2013 WL

1456633 (Tex. App. - Dallas Apr. 9,2013, no pet.) (mem.

op.).

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

1

LIST OF PARTIES........................... .....................

11

RELATED CASES..................................................

11

TABLE OF CONTENTS........................................

in

TABLE OF AUTHORITIES...................................

v

PETITION FOR WRIT OF CERTIORARI...........

1

OPINIONS BELOW................................................

1

JURISDICTION.......................................................

1

CONSTITUTIONAL AND STATUTORY PROVI­

SIONS INVOLVED..............................................

2

STATEMENT OF THE CASE................................

3

REASONS FOR GRANTING THE WRIT............

5

CONCLUSION.........................................................

7

APPENDIX

Court of Appeals Memorandum Opinion filed

August 26, 2022................................................. App. 1

Court of Appeals Judgment filed August 26,

2022

App. 10

District Court Order Granting Defendants’ Mo­

tion to Dismiss filed November 9, 2020

App. 11

Court of Appeals Order filed September 22,

2022

App. 12

IV

TABLE OF CONTENTS - Continued

Page

Texas Supreme Court Denial of Review filed

App. 13

January 27, 2023

Texas Supreme Court Denial of Rehearing filed

App. 14

March 17, 2023

V

TABLE OF AUTHORITIES

Page

Federal Cases

Clements v. Airport Auth., 69 F.3d 321 (9th Cir.

1995)...................................................................

6

Computer Assocs. Int’l v. Altai, Inc., 126 F.3d 365

(2d Cir. 1997)......................................................

5

Cooper v. Retrieval-Masters Creditors Bureau,

Inc., 42 F.4th 688 (7th Cir. 2022)......................

5

Dookeran v. Cnty. of Cook, III., 719 F.3d 570 (7th

Cir. 2013)............................................................

6

Katt v. Dykhouse, 983 F.2d 690 (6th Cir. 1992)....

5

Katz v. Gerardi, 655 F.3d 1212 (10th Cir. 2011)..

5

Kremer v. Chem. Constr. Corp., 456 U.S. 461

(1982)..................................................................

6

Manning v. Auburn, 953 F.2d 1355 (11th Cir.

1992)...................................................................

5

Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521

(6th Cir. 2006).....................................................

5

Rexing Quality Eggs v. Rembrandt Enterprises,

Inc., 953 F.3d 998 (7th Cir. 2020)......................

6

Scholz v. United States, 18 F.4th 941 (7th Cir.

2021)...................................................................

5

Smith v. Potter, 513 F.3d 781 (7th Cir. 2008)......

5

VI

TABLE OF AUTHORITIES - Continued

Page

State Cases

Clark v. Singer, 298 S.E.2d 484 (Ga. 1983)..........

7

Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d

709 (Ohio 1987)......................................................

7

Landgraffv. Wagner, 546 P.2d 26 (Ariz. Ct. App.),

appeal dismissed, 429 U.S. 806 (1976).............

7

Shessel u. Stroup, 316 S.E.2d 155 (Ga. 1984).......

7

Constitutional Provisions

U.S. Const., amend. XIV.....

2,6

Miscellaneous

Christopher J. Trombetta, The Unconstitution­

ality of Medical Malpractice Statutes of Re­

pose: Judicial Conscience Versus Legislative

Will, 34 Vill. L. Rev. 397 (1989)...........................

6

Josephine Herring Hicks, The Constitutionality

of Statutes of Repose: Federalism Reigns, 38

Vand. L. Rev. 627 (1985).......................................

6

Restatement (Second) of Judgments § 26(l)(e)...

5

Restatement of Judgments (Second) § 24............

5

TEXAS CIVIL PRACTICE AND REMEDIES

CODE Sec. 74.351.................................................

2

1

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certio­

rari issue to review the judgment below.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

Lindsey v. Adler, 2022 Tex. App. LEXIS 6446, *1, 2022

WL 3699608 (Tex. App. Dallas August 26, 2022).

JURISDICTION

The Court of Appeals issued its decision on August

26,2022. The Supreme Court of Texas denied a petition

for review on January 27, 2023. Lindsey v. Adler, 2023

Tex. LEXIS 98 (Tex. January 27, 2023). Rehearing was

denied on March 17, 2023. Lindsey v. Adler, 2023 Tex.

LEXIS 274 (Tex. March 17, 2023). These documents

are in the Appendix at App. 1-14.

The jurisdiction of this Court is invoked under 28

U. S. C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. XIV: No state shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

TEXAS CIVIL PRACTICE AND REMEDIES

CODE Sec. 74.351. EXPERT REPORT, (a) In a health

care liability claim, a claimant shall, not later than the

120th day after the date each defendant’s original an­

swer is filed or a later date required under Section

74.353, serve on that party or the party’s attorney one

or more expert reports, with a curriculum vitae of each

expert listed in the report for each physician or health

care provider against whom a liability claim is as­

serted. The date for serving the report may be ex­

tended by written agreement of the affected parties.

Each defendant physician or health care provider

whose conduct is implicated in a report must file and

serve any objection to the sufficiency of the report not

later than the later of the 21st day after the date the

report is served or the 21st day after the date the de­

fendant’s answer is filed, failing which all objections

are waived.

(b) If, as to a defendant physician or health care

provider, an expert report has not been served within

the period specified by Subsection (a), the court, on

the motion of the affected physician or health care

3

provider, shall, subject to Subsection (c), enter an order

that:

(1) awards to the affected physician or health

care provider reasonable attorney’s fees and costs of

court incurred by the physician or health care pro­

vider; and

(2) dismisses the claim with respect to the physi­

cian or health care provider, with prejudice to the refil­

ing of the claim.

(c) If an expert report has not been served within

the period specified by Subsection (a) because elements

of the report are found deficient, the court may grant

one 30-day extension to the claimant in order to cure

the deficiency. If the claimant does not receive notice of

the court’s ruling granting the extension until after the

applicable deadline has passed, then the 30-day exten­

sion shall run from the date the Petitioner first re­

ceived the notice.

STATEMENT OF THE CASE

In 2009, Petitioner went to Respondents for laser

scar removal. (1CR271.) During treatment she was

offered an injection for “stinging.” The exact site of

that injection became swollen, protruded, infected, and

discolored (1CR212-214).

Petitioner sought treatment almost immediately

for problems with the injection site. Within a short

time, a foreign body (microchip or chip) was recovered

4

from the site of the injection. (1CR214). That finding

prompted a lawsuit in 2011. Unfortunately, Petitioner

couldn’t get an attorney, and the 2011 lawsuit was dis­

missed for want of an Expert Report under 74.351(b).

(1CR357)

Problems arose again when a hardened lump ap­

peared at the same site almost 7 years later. On May

26, 2017, a surgeon located and removed another for­

eign body from the injection site. (CR212). Until it was

removed on May 26, 2017, Petitioner was completely

unaware of this Second Foreign Body. (1CR214)

The item removed from Petitioner has zero con­

nection with laser scar removal. Lab analysis revealed

“parts of wireless sensor body network.” (1CR227).

Medical and lab records were also reviewed by a

Board-Certified Anatomical Pathologist MD, licensed

in seven states including Texas, who concluded: “in fact

a crystalloid foreign object. In other words, it is not

tissue naturally produced or derived from her body.”

(1SUPPCR8).

Petitioner filed a claim for the Second Foreign

Body in 2019 - which was as fast as she was able to

do it. Petitioner attorneys seemed befuddled by the

nature of the foreign body involved, and did not want

to take the case. In short, she proceeded pro se and

managed to file this case just under 24 months from

the May 26, 2017 discovery of the foreign body

(1CR15).

On November 9, 2020 Dallas County’s 160th Dis­

trict Court dismissed the case. Petitioner appealed to

5

the Fifth District Court of Appeals, Dallas, which af­

firmed in a memorandum opinion. The Texas Supreme

Court denied a petition for review.

REASONS FOR GRANTING THE WRIT

“Claim splitting draws on and is a subset of the

doctrine of res judicata.” Cooper v. Retrieval-Masters

Creditors Bureau, Inc., 42 F.4th 688,696 (7th Cir. 2022)

(citing Scholz v. United States, 18 F.4th 941, 951 (7th

Cir. 2021)). It requires a plaintiff to assert all causes of

action arising from a common set of facts in one law­

suit. See Katz u. Gerardi, 655 F.3d 1212 (10th Cir.

2011); Restatement of Judgments (Second) § 24.

Res judicata, however, does not apply to claims

that accrued after the prior suit was filed. Cooper at

697 (citing Smith v. Potter, 513 F.3d 781, 783 (7th Cir.

2008)); see also Rawe v. Liberty Mut. Fire Ins. Co., 462

F.3d 521,529-530 (6th Cir. 2006) (“res judicata does not

apply to claims that were not ripe at the time of the

first suit”) (citing Katt v. Dykhouse, 983 F.2d 690, 694

(6th Cir. 1992)); Manning v. Auburn, 953 F.2d 1355,

1360 (11th Cir. 1992) (“we do not believe that the res

judicata preclusion of claims that ‘could have been

brought’ in earlier litigation includes claims which

arise after the original pleading is filed in the earlier

litigation.”); Computer Assocs. Int’l v. Altai, Inc., 126

F.3d 365, 369 (2d Cir. 1997).

The Restatement (Second) of Judgments § 26(l)(e)

setting forth exceptions to the general rule concerning

6

claim splitting for cases involving continuing wrongs

applies to situations in which a harm cannot be reme­

died “at one go.” See Rexing Quality Eggs v. Rembrandt

Enterprises, Inc., 953 F.3d 998 (7th Cir. 2020).

To be sure, these authorities do not speak directly

to the Due Process considerations at stake. But given

the Due Process concerns in the application of claim

preclusion, the analysis flows therefrom. Claim preclu­

sion “is bounded by the Due Process Clause of the Four­

teenth Amendment, which overrides the otherwise

preclusive effect of a prior judgment if the claimant did

not have a ‘full and fair opportunity to litigate [the]

claim’ in the prior action.” Dookeran v. Cnty. of Cook,

III., 719 F.3d 570, 576 (7th Cir. 2013) (quoting Kremer

v. Chem. Constr. Corp., 456 U.S. 461, 482 (1982)); see

Clements v. Airport Auth., 69 F.3d 321, 328 (9th Cir.

1995).

The determination of the Texas Courts thus con­

flict with Kremer and decisions of the federal courts of

appeals.

Quite aside from Due Process concerns with claim

preclusion, there is also the question whether a state

may, consistent with Due Process, bar Petitioner’s

claim without her being aware that she had been

injured. This Court has not passed on this issue and it

is an open one. See Josephine Herring Hicks, The Con­

stitutionality of Statutes of Repose: Federalism Reigns,

38 Vand. L. Rev. 627, 643 (1985); Christopher J. Trombetta, The Unconstitutionality of Medical Malpractice

7

Statutes of Repose: Judicial Conscience Versus Legis­

lative Will, 34 Vill. L. Rev. 397, 399 (1989).

It has been the subject of conflicting decisions at

the state level. Compare Landgraffv. Wagner, 546 P.2d

26, 29 (Ariz. Ct. App.), appeal dismissed, 429 U.S. 806

(1976) (no constitutional infirmity) with Shessel v.

Stroup, 316 S.E.2d 155, 156 (Ga. 1984), and Clark v.

Singer, 298 S.E.2d 484, 485 (Ga. 1983); Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987)

(Medical malpractice statute of repose which cut off

right of person injured by malpractice who could not

reasonably discover injury within three years after act

constituting malpractice to pursue his claim violated

due process clause under State Constitution; such

plaintiffs were not afforded reasonable time in which

to enforce their right.)

CONCLUSION

Certiorari should be granted to resolve the serious

issues raised on this petition.

Dated: June 13, 2023

Respectfully submitted,

Barbara Lindsey

Petitioner Pro Se

2800 Westminster Ave.

Dallas, TX 75205

gokudu@aol.com

682-554-7341