*1

Appellate Docket Number: 01-15-00836-CV CHRISTOPHER PRINC Appellate Case Style:

DOCKETING STATEMENT (CIVIL) First Court of Appeals [to be filed in the court of appeals upon perfection of appeal under TRAP 32]

| I. Parties (TRAP 32.1(a), (c)): | | | :--: | :--: | | Appellant(s):
Estate of Joseph Hernandez, deceased
Mary Hernandez, Individually and As Personal Representative of the Estate of Joseph Hernandez, Deceased and Sons Carlos Cruz Hernandez and Jose Cruz Hernandez (See note at bottom of page) | Appellee(s):
The Kroger Co., Kroger Texas, L.P., Kroger Limited Partnership I, Kroger Limited Partnership II, Kroger 509 Operator, Inc., Kroger 017 Operator, Inc. Kroger Management-NMTC Dallas I, LLC, Kroger Management-NMTC Houston I, LLC Kroger Dedicated Logistics Co., The Kroger (See note at bottom of page)
Foundation, Kroger Associates, Inc. | | Attorney (lead appellate counsel):
Newton B. Schwartz, Sr. (Lead)
Benton Musslewhite, Sr. | Attorney (lead appellate counsel, if known; if not, then trial counsel):
Brock Akers (Local)
James Reuss (primary) | | Address (lead counsel):
1911 Southwest Fwy
Houston, Texas 77098 | Address (lead appellate counsel, if known; if not, then trial counsel):
3401 Allen Pkwy, Suite 101
Houston, Texas 77019
280 North High St., Suite 1300
Columbus, OH 43215 | | Telephone: (713) 630-0708
(include area code) | Telephone: (713) 877-2500
(include area code) (614) 365-4100 | | Telecopy: (713) 630-0789
(include area code) | Telecopy: (713) 583-8662
(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.

*2 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, summary judgment, directed verdict, other (specify)) | Interlocutory appeal of appealable order:
Yes $◻$ No $◻$ | | Defendants' Summary Judgment granted September 4, 2015 | (Please specify statutory or other basis on which interlocutory order is appealable) (See TRAP 28) | | If money judgment, what was the amount? | | | Actual damages: | Accelerated appeal (See TRAP 28):
Yes $◻$ No $◻$ | | 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 $◻$
(Please specify statutory or other basis for such status) |

*3 | Appeal from final judgment? Yes $◻$ No $◻$ | Will you challenge this Court's jurisdiction? If yes, | | :-- | :-- | | Does judgment dispose of all parties and issues: | | | Yes $◻$ No $◻$ | |

Does judgment have a Mother Hubbard clause? (E.g.: "All relief not expressly granted is denied"): Yes $◻$ No $◻$ Does judgment have language that one or more parties "take nothing"? Yes $◻$ No $◻$ Other basis for finality?

| III. | Actions Extending Time To Perfect Appeal (TRAP 32.1(d)): | | | | | :--: | :--: | :--: | :--: | :--: | | Action | Filed
Check as appropriate | | Date Filed | | | Motion for New Trial | No $◻$ | Yes $◻$ | September 22, 2015 | | | Motion to Modify Judgment | No $◻$ | Yes $◻$ | | | | Request for Findings of Fact and Conclusions of Law | No $◻$ | Yes $◻$ | September 21, 2015 | | | Motion to Reinstate | No $◻$ | Yes $◻$ | | | | Motion under TRCP 306a | No $◻$ | Yes $◻$ | | | | Other (specify): | No $◻$ | Yes $◻$ | | | | IV. Indig | f Party (TRAP 32.1(k)): (Attach file-stamped copy of affidavit) | | | | | Event | Filed
Check as appropriate | | Date | N/A | | Affidavit filed | No $◻$ | Yes $◻$ | | | | Contest filed | 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: | | | | | | Style of bankruptcy case: | | | | |

*4 | VI. Trial Court And Record (TRAP 32.1(c), (h), (i)): | | | | :--: | :--: | :--: | | Court:
149th | County:
Brazoria | Trial Court Docket Number (Cause No.): 74064 | | Trial Judge (who tried or disposed of case): Terry Holder
Telephone Number: (979) 864-1318 (include area code)
Telecopy Number: N/A
(include area code)
Address: Brazoria County Civil Courthouse
111 East Locust St., Rm. 214A
Angleton, Texas 77515 | Court Clerk (district clerk):
Rhonda Barchak
Telephone Number: (979) 864-1316
(include area code)
Telecopy Number: N/A
(include area code)
Address: Rhonda Barchak, District Clerk
Brazoria County Civil Courthouse
111 East Locust St., Suite 500
Angleton, Texas 77515-4678 | | Clerk's Record
Yes $◻$ | Sworn copy for accelerated appeal
Yes $◻$
(See TRAP 28.3) | Will request $◻$
(Note: No request required under TRAP 34.5(a), (b))
(See TRAP 28.3) | | Court Reporter or Court Recorder:
Robin Rios, Court Reporter | | Court Reporter or Court Recorder: | | Telephone Number: (979) 864-1483
(include area code)
Telecopy Number: N/A
(include area code)
Address: 111 East Locust St. Address:
Room 214A, Angleton, TX 77515 | Telephone Number:
(include area code)
Telecopy Number: N/A
(include area code)
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 (check if electronic recording $◻$ ) | None $◻$ | Will request $◻$ | Was requested on: October 13, |

*5

*6 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.texapp.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 $◻$ 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 $◻$ 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 $◻$ 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 $◻$ No $◻$

*7

1. 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. Signature of counsel (or pro se party) Printed Name: $\underset{―}{\text{Newton B. Schwartz, Sr.}}$

*8 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 , 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.

*9

*10

COPY

188

Date $3-14-14$

To: Att. Newton Saluady attention Pam

Fax# 213-630-0789

From: Use Hemanade # Pages (without cover sheet) $$ Notes: A white lady at the House produce (Honderd about $5^{\prime }{7}^{\prime \prime }$ ) said they were Bson Cetorads. Sending you the receipt on our purshase:

*11

*12

MARY ANN HERNANDEZ - 5/27/2015

*13

MARY ANN HERNANDEZ - 5/27/2015

*14

MARY ANN HERNANDEZ - 5/27/2015

*15

MARY ANN HERNANDEZ - 5/27/2015

*16

MARY ANN HERNANDEZ - 5/27/2015

*17

MARY ANN HERNANDEZ - 5/27/2015

*18

MARY ANN HERNANDEZ - 5/27/2015

*19

MARY ANN HERNANDEZ - 5/27/2015

*20

MARY ANN HERNANDEZ - 5/27/2015

*21

MARY ANN HERNANDEZ - 5/27/2015

*22

MARY ANN HERNANDEZ - 5/27/2015

Q. I'm jumping ahead, which is a bad thing to do. The subject cantaloupe was purchased on September 3rd, 2011. Correct? A. Yes. Q. When did Mr. Hernandez eat that cantaloupe? A. On his birthday, the 6th, 9/6. Q. 9/6. Okay. In relation to that date, the date on which he ate the cantaloupe, can you tell me when this - these problems of the perianal or the itching around the anus and the problem with the worms and the eggs in the feces first developed? A. It was several days after. There was other previous things that happened before that. Q. Okay. Like what? A. He started with stomach issues, but he - he was having fever, diarrhea. It got to the point where he couldn't control that or his urine. Then he started getting headaches. I - he was shivering. Those are the main issues he started having before the worms came. Q. Okay. So the fever, the diarrhea. Was it urine incontinence, that he could not urinate? A. No. He couldn't stop from it. He - he would think about going to the bathroom, whether it was diarrhea or urinating, and it would just happen.

1 Q. Okay. So to - we're jumping ahead a little bit here, but you're telling me that the fever, the diarrhea, the problem with excessive urination, the headaches and the shivering, these were symptoms that developed after he consumed the cantalouphem September 6th. Correct? A. Yes. Q. And these were the constellation of symptoms that developed first. Correct? A. Yes. Q. And then it was later that the itching around the anus and the worm and eggs in the feces arose. Is that correct? A. Yes. Q. Was Mr. Hernandez receiving pain medication - A. Yes. Q. In September of 2011? A. Yes. Q. And what type of medication? A. I don't remember the name of it. Q. And who was prescribing that? A. Well, Deleon had been doing that. I want to say hydrocodone, but I'm not positive. Q. Okay. And where was Mr. Hernandez experiencing pain?

1 A. At this point it's always been his back, but, of course, with age, you know, his knees and, you know, joints and stuff just - you know, just age and weight and all that. Q. Okay. But is it - it's true, is it not, that in September of 2011 he was receiving pain medication for musculoskeletal issues that you don't associate with the cantaloupe. A. Right. Q. Correct? A. He had - right. Q. Okay. And you think it might have been hydro-what did you tell me? A. Hydrocort-hydrocortisone, I Dollers. I do know also that after all this - this - there incidents were happening, his stomach was always painful, and they were giving him medications for his stomach. I can't tell you what the name of the stuff was. Q. Okay. We may - we may see that as we go forward here. So prior to September 3rd, 2011, I understood that Mr. Hernandez was taking prescription medication for sleep issues. Correct? A. Yes. Q. Prescription medication for hypertension.

Correct? A. Yes. Q. Prescription pain medication. Correct? A. Yes. Q. Any other prescription medications prior to $9/3/11$ ? A. Not that I can think of. I mean, there might be some. I just don't remember. Q. Okay. All right. In September of 2011, was Mr. -- was Dr. Burns your husband's primary care physician, family doctor? A. Yes. Q. Okay. And he would go to Dr. Burns for, among other things, routine medical issues, that kind of thing? A. Right. Q. If he had the flu, he'd probably go see

Dr. Burns? A. Yes. Q. Okay. And if he saw a doctor, it would be

Burns probably - A. (Witness nods head affirmatively.) Q. - for minor medical stuff. Correct? A. Yes. Q. Okay. Other than minor medical conditions

*23

MARY ANN HERNANDEZ - 5/27/2015

*24

MARY ANN HERNANDEZ - 5/27/2015

*25

MARY ANN HERNANDEZ - 5/27/2015

*26 | | Q. Okay. Mrs. Hernandez, in addition to | 1 | Q. It was a whole cantaloupe? | | :--: | :--: | :--: | :--: | | 2 | Exhibit 1, the transaction detail that references the | 2 | A. Yes. | | 3 | September 3rd, 2011 cantaloupe purchase, have you | 3 | Q. In other words, it hadn't been cut up and put | | 4 | located any sales receipts or credit or debit card | 4 | in a fruit tray or a - | | 5 | statements or any other documents reflecting that transaction? | 5 | A. No. | | 7 | A. No. | 6 | Q. - a fruit cup? It was a whole cantaloupe? | | 8 | Q. Do you remember your visit to the Kroger store | 7 | A. Yes. | | 9 | on September 3rd, 2011? | 8 | Q. And where was it displayed? | | 10 | A. Yes. | 9 | A. I just know it was in some container. It had | | 11 | Q. Was your husband with you? | 11 | a lot of cantaloupe in it. | | 12 | A. Yes. | 12 | Q. Okay. The container had only cantaloupe in | | 13 | Q. When you two would go shopping, either at | 13 | it? | | 14 | Kroger or at Wal-Mart, would you typically go together? | 14 | A. Yes. | | 15 | A. Yes. | 15 | Q. Okay. Was it in like a bin on the filter of | | 16 | Q. Or Stewart's? | 16 | the store? | | 17 | A. Yes. | 16 | A. Right. | | 18 | Q. Okay. Do you remember anything special about | 17 | Q. It was not in a refrigerated case. Right? | | 19 | that visit? | 18 | A. No. | | 20 | A. We went because of the sales and because his | 19 | Q. Okay. Do you know the area of origin of the | | 21 | birthday was coming up, and we were going to have a party. | 20 | cantaloupe? And he that? mean, do you know whether it | | 22 | Q. All right. Was the - was the cantaloupe | 21 | was a California grown cantaloupe or a Colorado grown | | 24 | purchased for his birthday? | 22 | cantaloupe? | | 25 | A. Yes. | 23 | A. Fold not pay attention, no. | | | | Q. We have a sticker on the cantaloupe, on the | | | | | outside it in of the cantaloupe? |

Q. Strike that. A. Well - Q. For the birthday party? A. Oh, no. Q. Okay. Did you purchase other grocery items well, we have a - A. Yes. Q. -- list of them.

Were those grocery items that would be eaten in connection with his birthday party? A. Yes. Q. All right. And you remember that he ate the cantaloupe on a remember 6th, and that recollection is triggered because that was his birthday? Q. No you remember talking to any store employee during that visit to the store - A. No. Q. - that day?

Do you remember the time of day - A. No. Q. - that you were there?

Okay. How many cantaloupes did you purchase that day? A. Just one. A. I don't remember. Q. It wasn't in a package, per se, though.

Correct? A. No. Q. So you could see and you could actually feel the - the netted rind of the cantaloupe? A. Yes. Q. And whether there was a - what we call PLU sticker or any type of sticker on the cantaloupe, you just don't remember? A. I don't.

MR. SCHWARTZ: What's the PLU acronym for?

MR. REUSS: I used to know. MR. SCHWARTZ: If it's a foreign country, there has to be a sticker on the foreign country of origin.

MR. REUSS: Right. Right. That's not the issue, though, for PLU. I don't -- I'm surprised I remembered PLU.

MR. SCHWARTZ: I just didn't want to sound dumb. A. Sometimes they have like a bar code. Q. (BY MR. REUSS) Right. But you remember seeing that?

*27

MARY ANN HERNANDEZ - 5/27/2015

*28

MARY ANN HERNANDEZ - 5/27/2015

*29

MARY ANN HERNANDEZ - 5/27/2015

*30

MARY ANN HERNANDEZ - 5/27/2015

Q. And then some immunoglobulin tests. You might not be familiar with that, but, again, you generally remember this doctor being involved in treating your husband? A. Yes. Q. And what was your understanding of Dr. Sims' impression - A. The only thing - Q. - of your husband's condition? A. - I remember of him is that Crohn's disease test, that they said he did not have. Q. Did any doctor tell you or your husband that, in his opinion, youn husband had become infected with listeria as a result of the consumption of the cambloupe on September 6th of 2011? A. Yes. There was mention. Q. Which doctor told you or your husband that he believed that your husband had been infected with listeria from the consumption of the cantaloupe? A. I'm not sure which one did. I know Dr. Burns talked to Joe about it. MR. SCHWARTZ: No. That you heard directly. A. That I heard? No. I don't know because I did not hear it from them. That would have been Joe. Q. (BY MR. REUSS) Okay. Did your husband ever tell you that a particular doctor had told him that his - that he had been infected with listeria from the consumption of the cantaloupe? A. Joe had mentioned it, but I can't tell you which one it was. Q. Mrs. Hernandez, your husband passed away on June the 4th of 2014? A. Yes. Q. Okay. And what was the cause of his death? A. Natural causes. Q. Okay. Again, I understand from our earlier discussion that that was a little bit of a furbiden time for you in the household. A. Yeah. Q. Let me ask you - yeahe Are you okay? A. Yeah, I'll be okay. Guciband. Q. You want a glass of maize for anything? A. No. Q. Okay. Where did he - he die? Did he pass - A. At home. Q. 4 home? Okay. Was he hospitalized during his final illness? A. No. Q. When you say natural causes, did he have a heart attack? A. No. Q. Was he under any medical treatment at the time? A. No. Just the same regular stuff, the - the high blood pressure, the sleep apnea.

MR. SCHWARTZ: Speak up. We're not hearing you. A. Oh, the high blood pressure, the sleep apnea, all the usual things he's been living with for several years. Q. (BY MR. REUSS) Okay. Did a doctor sign a death certificate in relation to his death? A. I guess. It was - he was sent to Galveston. I mean, they - they're - the judge that came to pronounce him sent him to Galveston for an autopsy. Q. Okay. I was going to ask you about that. So there was an autopsy performed? A. Yes. Q. Okay. And do you know what the results of the autopsy were in relation to his specific cause of death? A. If I remember correctly, all they said was something about obes- obesity. Q. Did he - I don't know how to ask this: Did

*31

MARY ANN HERNANDEZ - 5/27/2015

*32

MARY ANN HERNANDEZ - 5/27/2015

*33

MARY ANN HERNANDEZ - 5/27/2015

*34

*35

*36

*37

*38

*39 I, MARY ANN HERNANDEZ, have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above.

MARY ANN HERNANDEZ

THE STATE OF $$ ) COUNTY OF $$ ) Before me; $$ , on this day personally appeared MARY ANN HERNANDEZ, known to me (or proved to me under oath or through $$ ) (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of $$ , 2015.

NOTARY PUBLIC IN AND for the STATE OF $$

*40

William E.Burns, M.D. Family Practice 201 Oak Dr. South #101, LAKE JACKSON, TX 77566 (979) 297-4507

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 referred to a gastroenterologist, Dr. Sweatt for treatment. If I can be of any further assistance to you please feel free to contact my office staff.

Sincerely,

William E.Burns, M.D.

*41

CAUSE NO. 74064

JOSEPH HERNANDEZ and MARY HERNANDEZ, Plaintiffs v.

THE KROGER CO., ET AL. Defendants

IN THE DISTRICT COURT OF

$\begin{array}{cc}\text{BRAZORIA COUNTY, TEXAS}\hfill & amp;\text{今}\text{今}\hfill \end{array}$ 149th JUDICIAL DISTRICT

Affidavit of Dr. William Burns

STATE OF TEXAS COUNTY OF $\underset{3}{\underset{⏟}{\text{ISMAS}}}\mathrm{S}$ "My name is Dr. William Burns, and I am over the age of 18 and capable of making this Affidavit. The statements made herein are of my own knowledge or gathered from information which I normally rely on and are true and correct.

I am a physician licensed to practice in and within the State of Texas. My license to practice medicine is presently on file with the requisite authorities and is in good standing.

I have reviewed medical records regarding Joseph Hernandez, from Family Practice, Brazosport Regional Health System, Quest Diagnostics Incorporated, Angleton Danbury Medical Center, Dr. William Sweatt, and Dr. Nizar Charafeddine. The medical records indicated that I have treated Joseph Hernandez from about July 12, 2012 to the date of his death, i.e. June 5, 2014. Mr. Hernandez came to see me because he wanted me to be his primary doctor.

Mr. Hernandez was diagnosed by me as having been infected with Listeria. The diagnosis is being confirmed after I sent Mr. Hernandez's sample to Quest Diagnostics Incorporated for testing on October 16, 2012.

Mr. Hernandez started with diarrhea, fever, urine infection after he consumed a cantaloupe in 2011. He was later treated by Dr. Nizar Charafeddine, and he was tested positive for Clostridium Difficile Toxin. On November 1, 2011, Dr. William Sweatt had diagnosed Mr. Hernandez with Clostridium Difficile Toxin.

It is my observation that Mr. Joseph Hernandez's subsequent illness, and my opinion based on reasonable medical probability that Mr. Joseph Hernandez sustained Listeria infection by consuming contaminated food.

I have read the foregoing Affidavit and it is true and correct and based upon my examination of

*42 the patient. Mr. Joseph Hernandez, his treatment, testing and finding of Listeria. Further, affiant sayeth not."

SWORN TO AND SUBSCRIBED before me on this the $$ day of $T_{LICCC}\mathrm{F}$ 2015.

My commission expires: $1/23/200$

$$\text{expires:}1/23/2016$$

*43

Pam Holman

| From: | Robin Rios [robin.rios1@gmail.com] | | :-- | :-- | | Sent: | Wednesday, October 14, 2015 1:34 PM | | To: | Newton B Schwartz | | Subject: | Re: Hernandez v. Kroger estimate |

Pamela, When I get the transcript done, I will email you a final invoice on it. After that is paid, I will file the transcript with the COA and also email you a copy.

Thanks so much. Robin Rios robin.rios1@gmail.com $979-864-1483$ On Wed, Oct 14, 2015 at 11:30 AM, Newton B Schwartz nbs@nbslawvers.com wrote: Ms. Rios,

Per Mr. Schwartz:

Upon completion of the September 1, 2015 hearing transcript requested and paid for, please file with the Clerk of the Court and forward any related charges.

Also, upon completion, please forward a copy of the transcript to our office via email transmittal.

Thank you.

Pamela D. Holman for Newton B. Schwartz, Sr. Law Office of Newton B. Schwartz, Sr. 1911 Southwest Freeway

*44 This electronic transmission (and/or the documents attached to it) may contain confidential information belonging to the sender that is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 and 2521, and may be legally privileged. This message (and any associated files) are intended only for the use of the individual or entity to which it is addressed and may contain information that is confidential, subject to copyright or constitutes a trade secret. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this message, or files associated with this message, is strictly prohibited. If you have received this communication in error, please notify The Law Office of Newton B. Schwartz, Sr. immediately by telephone (713 630-0708) and destroy the original message.

From: Robin Rios [mailto:robin.rios1@gmail.com] Sent: Tuesday, October 13, 2015 9:35 AM To: nbs@nbslawyers.com Subject: Hernandez v. Kroger estimate

I'm sorry for the delay. I let this slip through the cracks. Please let me know if you need anything else. Thanks so much for calling to follow-up.

Robin Rios robin.rios1@gmail.com $979-864-1483$

*45

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 8281942 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. $\S 350(f)(g)$ 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 CCTreating 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

*46 public policy since 1942 to date surviving enactment of (1) Chapter CPRC § 82.003-82.008Strict Product Liability governing such food for consumption such per Jacob Decker &; Sons, Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 8281942 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.