Mary Hernandez, Individually and as Personal Representative of the Estate of Joseph Hernandez, and Sons, Carlos Cruz Hernandez and Jose Cruz Hernandez v. the Kroger Company

ACCEPTED 01-15-00836-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/20/2015 10:34:55 AM CHRISTOPHER PRINE Appellate Docket Number: ___________________________________________ 01-15-00836-CV CLERK Appellate Case Style:

FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/20/2015 10:34:55 AM DOCKETING STATEMENT (CIVIL) CHRISTOPHER A. PRINE First Court of Appeals Clerk [to be filed in the court of appeals upon perfection of appeal under TRAP 32] I. Parties (TRAP 32.1(a), (e)):

Appellant(s): Appellee(s): Estate of Joseph Hernandez, The Kroger Co., Kroger Texas, L.P., deceased Kroger Limited Partnership I, Kroger Mary Hernandez, Individually and As Limited Partnership II, Kroger 509 Personal Representative of the Operator, Inc., Kroger 017 Operator, Inc. Estate of Joseph Hernandez, Deceased Kroger Management-NMTC Dallas I, LLC, and Sons Carlos Cruz Hernandez and Kroger Management-NMTC Houston I, LLC Jose Cruz Hernandez Kroger Dedicated Logistics Co., The Kroger (See note at bottom of page) (See note at bottom of page) Foundation, Kroger Associates, Inc.

Attorney (lead appellate counsel): Attorney (lead appellate counsel, if known; if not, then trial Newton B. Schwartz, Sr.(Lead) counsel): Brock Akers (Local) Benton Musslewhite, Sr. James Reuss (primary)

Address (lead counsel): Address (lead appellate counsel, if known; if not, then trial 1911 Southwest Fwy counsel): Houston, Texas 77098 3401 Allen Pkwy, Suite 101 Houston, Texas 77019 280 North High St., Suite 1300 Columbus, OH 43215

Telephone: (713) 630-0708 Telephone: (713) 877-2500 (include area code) (include area code) (614) 365-4100

Telecopy: (713) 630-0789 Telecopy: (713) 583-8662 (include area code) (include area code) (614) 365-9145

SBN (lead counsel): 17869000 SBN (lead counsel): 00953250

If not represented by counsel, provide appellant’s/appellee’s address, telephone number, and telecopy number. On Attachment 1, or a separate attachment if needed, list the same information stated above for any additional parties to the trial court’s judgment.

FORM 2 HOU05:76682.1

II. Perfection Of Appeal And Jurisdiction (TRAP 32.1(b), (c), (g), (j)):

Date order or judgment signed: Date notice of appeal filed in trial court: September 4,2015 September 30, 2015

(Attach a signed copy, if possible) (Attach file-stamped copy; if mailed to the trial court clerk, also give the date of mailing)

What type of judgment? (e.g., jury trial, bench trial, Interlocutory appeal of appealable order: summary judgment, directed verdict, other (specify)) Yes No x Defendants' Summary Judgment granted (Please specify statutory or other basis on which September 4, 2015 interlocutory order is appealable) (See TRAP 28)

If money judgment, what was the amount?

Actual damages: Accelerated appeal (See TRAP 28): Yes No x

Punitive (or similar) damages: (Please specify statutory or other basis on which appeal is accelerated)

Attorneys’ fees (trial): Attorneys’ fees (appellate):

$0

Other (specify): Appeal that receives precedence, preference, or priority under statute or rule? Yes No x

(Please specify statutory or other basis for such status)

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Appeal from final judgment? Yes No x Will you challenge this Court’s jurisdiction? If yes, explain. Does judgment dispose of all parties and issues: Yes x No

Does judgment have a Mother Hubbard clause? (E.g.: “All relief not expressly granted is denied”): Yes x No

Does judgment have language that one or more parties “take nothing”? Yes x No

Other basis for finality? III. Actions Extending Time To Perfect Appeal (TRAP 32.1(d)):

Filed Action Date Filed Check as appropriate

Motion for New Trial No … Yes …x September 22, 2015 Motion to Modify Judgment No …x Yes

Request for Findings of Fact and No Yes x September 21, 2015 Conclusions of Law

Motion to Reinstate x No Yes

Motion under TRCP 306a No …x Yes Other (specify): No …X Yes IV. Indigency Of Party (TRAP 32.1(k)): (Attach file-stamped copy of affidavit)

Filed Event Date N/A Check as appropriate

Affidavit filed No …x Yes

Contest filed x No Yes

Date ruling on contest due:

Ruling on contest: Sustained Overruled

V. Bankruptcy (TRAP 8): Will the appeal be stayed by bankruptcy? No Date bankruptcy filed? N/A Name of bankruptcy court: Bankruptcy Case No.: Style of bankruptcy case:

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VI. Trial Court And Record (TRAP 32.1(c), (h), (i)):

Court: County: Trial Court Docket Number 149th (Cause No.): Brazoria 74064

Trial Judge (who tried or disposed of case): Court Clerk (district clerk): Terry Holder Rhonda Barchak Telephone Number:(979) 864-1318 Telephone Number: (979) 864-1316 (include area code) (include area code)

Telecopy Number: N/A Telecopy Number: N/A (include area code) (include area code) Address: Brazoria County Civil CourthouseAddress: Rhonda Barchak, District Clerk 111 East Locust St., Rm. 214A Brazoria County Civil Courthouse Angleton, Texas 77515 111 East Locust St., Suite 500 Angleton, Texas 77515-4678

Clerk’s Record Sworn copy for Will request Was requested on: accelerated appeal (Note: No request required October 6, 2015 Yes x Yes under TRAP 34.5(a), (b))

(See TRAP 28.3)

Court Reporter or Court Recorder: Court Reporter or Court Recorder: Robin Rios, Court Reporter

Telephone Number: (979) 864-1483 Telephone Number: (include area code) (include area code)

Telecopy Number: N/A Telecopy Number: N/A (include area code) (include area code)

Address: 111 East Locust St. Address: Room 214A, Angleton, TX 77515

(Attach additional sheet if necessary for additional court reporters/recorders)

Length of trial (approximate): State arrangements made for payment of court reporter/recorder: Paid in full per attached payment and receipt

Reporter’s or Recorder’s Record None Will request Was requested on: October 13, 2015 x (check if electronic recording )

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VII. Nature Of The Case (TRAP 32.1(f)) (Subject matter or type of case: E.g., personal injury, breach of contract, workers’ compensation, or temporary injunction) (see list below): Wrongful death--CPRC § 71.001; Public policy of Texas Personal Injury and Survival and death action product liability and negligent food safety violations per CPRC §71.021; and four violations of Federal "Food, Drug and Cosmetic Act per 21 U.S.C. 2101-2110 and § 346a; and noticed violations for adulterated or misbranded foods per 21 U.S.C. 352 and 373. Administrative/agency _____ Malpractice Legal _____ Banking _____ Medical _____ Other _____ x Business _____ Motor Vehicle _____

Condemnation _____ Municipal _____ x Consumer/DTPA _____ Oil & Gas _____

Construction _____ Personal Injury _____ x x Contract _____ Premises Liability _____

Employment/Labor _____ Probate _____

Family _____ Products Liability _____ x

Custody _____ Real Property _____

Property Division _____ Securities _____

Termination _____ Tax _____

Other _____ x U.C.C./Tex. Bus. & Com. Code _____ x Fraud _____ Venue _____

Insurance _____ Workers’ compensation _____ Juvenile _____ Other (specify): _____ Landlord/Tenant _____

VIII. Supersedeas Bond None x Will file Was filed on: (TRAP 32.1(1)):

IX. Extraordinary Relief: Will you request extraordinary relief (e.g., temporary or ancillary relief) from this Court? Yes No x If yes, briefly state the basis for your request.

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X. Pro Bono Pilot Program: The Third Court of Appeals, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee, is conducting a Pro Bono Pilot Program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court. The Pro Bono Committee will screen and select the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant. If a case is selected by the Committee and can be matched with appellate counsel, that counsel will take over the representation of the appellant without charging legal fees. More information regarding this program can be found in the Third Court of Appeals Pro Bono Pilot Program Pamphlet available in paper form at the Clerk’s Office or on the Internet at http://www.tex- app.org. If your case is selected, and we match your case with one of our volunteer lawyers, you will receive a letter from the Committee within thirty (30) to forty-five (45) days of submitting this Docketing Statement. NOTE: There is no guarantee that, if you submit this case for possible inclusion in the Pro Bono Pilot Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono Committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and a Listserv to its pool of volunteer appellate attorneys.

1. Do you want this case to be considered for inclusion in the Pro Bono Pilot Program?

Yes No x

If you answered “Yes” to Question X.1, then please answer the following questions.

2. Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Pilot Program.

Yes … No …x

3. If you have not previously filed an affidavit of indigency and attached a file-stamped copy of that affidavit, does your income exceed 175% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? These guidelines can be found in the Third Court of Appeals Pro Bono Pilot Program Pamphlet as well as on the Internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Yes … No …x

4. Are you willing to disclose your financial circumstances to the Pro Bono Committee? If so, please attach an Affidavit of Indigency completed and executed by the appellant. Forms may be found in the Clerk’s Office or on the Internet at http://www.tex-app.org. Your participation in the Pro Bono Pilot Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.

Yes x No

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5. Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary). See attached Exhibit FF.

XI. Related Matters: List any pending or past related appeals or original proceedings (e.g., mandamus, injunction, habeas corpus) before this or any other Texas appellate court by court, docket number, and style. N/A

XII. Any other information requested by the court (see attachments, if any). N/A XIII. Signature:

/s/ Newton B. Schwartz, Sr. __________________________________________________ Date: _________________________ October 20, 2015 Signature of counsel (or pro se party) State Bar No.:___________________ 17869000 Newton B. Schwartz, Sr. Printed Name: _____________________________________

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XIV. Certificate of Service: The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court’s order or judgment as follows on October 20 ______________________, 19____. xx 2015

Via U.S. Regular mail, electronic transmittal and facsimile transmission on: James Reuss VIA FAX: (614) 365-9145 Carpenter, Lipps & Leland, LLP 280 North High Street, Suite 1300 Columbus, Ohio 43215 Email:reuss@carpenterlipps.com Telephone: (614) 365-4100 Brock C. Akers VIA FAX: (713) 583-8662 The Akers Firm 3401 Allen Parkway, Suite 101 Houston Texas 77019 Telephone: (713) 877-2500 Email: bca@akersfirm.com ATTORNEY FOR DEFENDANTS/APPELLEES

/s/ Newton B. Schwartz, Sr. ________________________________________ Signature

(TRAP 9.5(e) requirements stated below; use additional sheets, if necessary)

Note: Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state:

(1) the date and manner of service; (2) the name and address of each person served; and (3) if the person served is a party’s attorney, the name of the party represented by that attorney.

HOU05:76682.1 −8−

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William E.8urns, M.D. Family Practice 201 Oak Dr. South #101, LAKE JACKSON, TX 77566 (979) 2974507 FAX (979) 480-9074

12/12/2012 To Whom It May Concern:

Mr. Joe Hernandez is my patient who recently had a positive test for Listeria. He was 'eferred to a gastroenterologist, Dr. Sweatt for treatment If I can be of any further assistance to (OU please feel free to contact my office staff. Sincerely,

~-~~ Villiam E.Bums, M.D.

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1. Violation of the public policy of Texas prohibiting the sale of unsafe, adulterated, and/or misbranded food for human consumption, since 194 by Texas Supreme court cases, Jacob Decker & Sons, Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 828 1942 Tex. LEXIS 275; 142 A.L.R. 1479 (1942) and Griggs Canning Co. v. Josey, 139 Tex, 623, 164 S.W. 2d 825, 840 (Tex. 1942). 2. DTPA per § 17.50(a)(2) and 3. Personal Injury and (b) Wrongful death doctrine—CPRC § 71.001, et seq; and (c) Survival Act per CPRC §71.021, et seq; and 4. Negligence and Negligence Per Se for statutory violations of Federal "Food, Drug and Cosmetic Act” per 21 U.S.C. § 301-357 and §341-350 (1-1), Annual Report for Congress; and (b) requiring actual in-store notices of Listeria, including failure to warn of Listeria and (c) failed to post country of origin where grown or imported from, outside the United States for 21 U.S.C. §350(f)(g) and (h) of Listeria and sale of adulterated or misbranded foods unsafe for human consumption. 5. Failed to grant Appellants’ timely Motions to conduct additional discovery after Kroger defendants’ failing to timely answer and denying Appellants’ Requests for Production of documents per TRCP 196 for months without good cause, delaying Appellants’ review of and discovery from grower of melons and failing to disclose Jenson Farms and/or Frontera Produce, Ltd., as growers and suppliers to Kroger and/or of known Listeria in melons as of date of sale September 3, 2011. Per Reporters’ Record and Clerk’s Record: Appellant timely responded, controverted and objected to Kroger Defendants’ Traditional and No-Evidence Motions for Summary Judgment. See Transcript of Reporter’s Record of September 1, 2015 hearing, requested, paid for and acknowledged by Court Reporter Robin Rios on October 13, 2015 (attached) and by Exhibits: Exhibit AA—purchase of known Listeria laden Melons from Kroger defendants—September 3, 2011 Exhibit BB—Mary Hernandez’s deposition testimony regarding—its purchase, original refrigeration and eaten and ingested solely by Joseph Hernandez, deceased. Exhibit CC— Treating doctor’s diagnosis of Listeria in Melon, causally related to his sickness, injuries, and illness by Dr. William Burns, M.D. and his controverting Affidavit (Exhibit DD) filed timely, one week prior to September 1, 2015 hearing. Exhibit EE—See Texas above declared Texas

public policy since 1942 to date surviving enactment of (1) Chapter CPRC § 82.003-82.008— Strict Product Liability governing such food for consumption such per Jacob Decker & Sons, Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 828 1942 Tex. LEXIS 275; 142 A.L.R. 1479 (1942) and Griggs Canning Co. v. Josey, 139 Tex, 623, 164 S.W. 2d 825, 840 (Tex. 1942), declared the Public Policy of Texas to date present that the seller of food (Kroger) for public consumption as here is strictly liable without fault or negligence and/or this Public Policy is not affected by later enactment of CPRC Chapter 82 for illnesses and injuries and death resulting, including that a melon or cantelope is not a designed or manufactured product within CPRC Chapter 82.