TCU Lawsuit Update - 2/21/18

FILED
2/21/2018 11:06 AM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY
CAUSE NO. CC-18-00585-A
KOLBY LISTENBEE, § IN THE COUNTY COURT

Plaintiff, §
§
VS. §
§
TEXAS CHRISTIAN UNIVERSITY; §
TEXAS CHRISTIAN UNIVERSITY §
BOARD OF TRUSTEES; BIG XII § AT LAW NO. 1 OF
CONFERENCE, INC.; GARY §
PATTERSON; CHRIS DEL CONTE; §
DAVID GABLE; ZACH LACROSS; §
DILLON SMITH; JAMES RUSSELL §
“RUSTY” BURNS; DOUGLAS §
MEACHAM; and JOHN AND JANE §
DOES 1-10, §
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF’S FIRST AMENDED PETITION
Plaintiff, Kolby Listenbee, files this First Amended Petition against Defendants TEXAS
CHRISTIAN UNIVERSITY; TEXAS CHRISTIAN UNIVERSITY BOARD OF TRUSTEES;
BIG 12 CONFERENCE, INC.; DAVID GABLE; ZACH LACROSS; DILLON SMITH; CHRIS
DEL CONTE; GARY PATTERSON; JAMES RUSSELL “RUSTY” BURNS; DOUGLAS
MEACHAM; and JOHN AND JANE DOES 1-10, and alleges as follows:
DISCOVERY-CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
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
seeks monetary relief over $100,000.
PLAINTIFF’S FIRST AMENDED PETITION Page 1

CLAIM FOR RELIEF
2. Pursuant to Texas Rule of Civil Procedure 47, Plaintiff seeks monetary relief over
$1,000,000.
PARTIES
3. Plaintiff is Kolby Listenbee. Plaintiff resides in Dallas, Dallas County, Texas.
4. Defendant Texas Christian University (“TCU”), is a Texas corporation whose
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
Dr., Fort Worth, Texas 76129.
5. Defendant Texas Christian University Board of Trustees (“TCU Board”), is a Texas
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.
6. Defendant Big 12 Conference, Inc. (“Big 12”), is a Texas corporation whose
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.
7. Defendant David Gable (“Gable”) is an individual who resides in Aledo, Parker
County, Texas. Gable may be served with process at TCU, 2900 Stadium Dr., Fort Worth, TX
76129.
8. Defendant Zach LaCross (“LaCross”) is an individual who resides in Fort Worth,
Tarrant County, Texas. LaCross may be served with process at TCU, 2900 Stadium Dr., Fort
Worth, TX 76129.

9. Defendant Dillon Smith (“Smith”) 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.
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.,
Fort Worth, TX 76129.
13. Defendant Douglas Meacham (“Meacham”) is an individual who resides in
Lawrence, Douglas County, Kansas. Meacham 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
identified at a later date as relevant and indispensable parties to this lawsuit.
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.

VENUE
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
this state as well as the place of residence of Plaintiff Kolby Listenbee.
FACTS
A. Background on Defendants
17. Upon information and belief, the following is known about the named Defendants
in this action:
a. Defendant Texas Christian University is a private university in the Division

1 level of the NCAA;
b. Defendant Big 12 is the collegiate conference of which Defendant TCU is

a member;
c. At the time of the incident in question, Defendant TCU employed the

following Defendants:
i. Dr. Karen Michele Kirk (head team physician for TCU

football)
ii. Dr. Jason Mogonye (assistant team physician for TCU

football)
iii. David Gable (head Athletic Trainer for TCU football)
iv. Zach LaCross (assistant Athletic Trainer for TCU football)
v. Dillon Smith (assistant Athletic Trainer for TCU football)
vi. Chris Del Conte (Athletic Director for TCU)
vii. Gary Patterson (Head Coach for TCU Football)
viii. James Russell “Rusty” Burns (Assistant Coach for TCU

Football)
ix. Douglas Meacham (former Offensive Coordinator for TCU

Football)
x. John and Jane Does 1-10

B. Background on Kolby Listenbee
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
TCU for college football starting in the Fall of 2012.
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
“reputation as one of the nation’s fastest collegians.” 1
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
26th best in all of college football for 2014.
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.

22. After his junior year, Kolby’s rise in productivity on the football field was noticed
on a national level. Several articles 3 were written on Kolby and his potential to be a huge star in
his senior year as well as in the National Football League.
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
C. Game that Created the Incident(s) in Question
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
six more points to add to their lead.
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

Figure 1 - Kolby's catch
Figure 2 - Awkward fall after catch
Figure 3 - Awkward Fall after catch

26. After the catch, Kolby stood up with a noticeable limp. As he walked over to the
sideline, the pain in Kolby’s pelvic area caused him to fall to the ground. See, Figure 4.

Figure 4 - Kolby falls to the ground on sideline due to pain
27. The TCU football staff immediately began treating Kolby with massage therapy on
his lower back. See, Figure 5. Kolby was in too much pain to return to the game.
Figure 5 - Kolby receiving massage therapy
D. Kolby’s Initial Diagnosis
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
MRI without contrast to confirm the diagnosis.

29. On or about September 23, 2015, Kolby underwent a pelvic MRI without contrast
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.
E. Osteitis Pubis and Standard Treatment
31. Osteitis Pubis is an inflammation of the pubic symphysis (the cartilage that unites
the two pubic bones) and surrounding muscles. 5 See, Figure 6.
Figure 6 - Osteitis Pubis

32. The standard of care in treating osteitis pubis for an athlete is rest for eight to twelve
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

33. The use of corticosteroids and/or numbing agent should be limited because they
can result in atrophy of the surrounding tissues especially with frequent administration or excessive
doses. This atrophy can result in further musculoskeletal injury.
34. In fact, the NCAA Sports Medicine Handbook 6 specifically recommends that:
a. Injectable corticosteroids should be administered only after more

conservative treatments, including nonsteroidal anti-inflammatory
agents, rest, ice, ultrasound and various treatment modalities, have
been exhausted.
b. Repeated corticosteroid injections at a specific site should be done

only after the consequences and benefits of the injections have been
thoroughly evaluated.
c. Corticosteroid injections only should be done if a therapeutic effect

is medically warranted and the student-athlete is not subject to either
short- or long-term significant risk.
d. These agents should only be administered when medically justified,

when the risk of administration is fully explained to the student-
athlete, when the use is not harmful to continued athletics activity
and when there is no enhancement of a risk of injury.
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:
a. These agents should only be administered when medically justified,

when the risk of administration is fully explained to the patient,
when the use is not harmful to continued athletics activity and when
there is no enhancement of a risk of injury.
36. The Handbook specifically does not recommend the following:
a. The use of local anesthetic injections if they jeopardize the ability

of the student-athlete to protect himself or herself from injury.
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

F. Kolby’s Treatment
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
Offensive Coordinator, and Defendant Burns – the assistant coach.
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

42. Kolby continued to practice and play in every game for the 2015 football season
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.
Date Opponent Catches Yards Touchdowns

October 17, 2015 Iowa State 6 101 1
October 29, 2015 West Virginia 4 86 0
November 7, 2015 Oklahoma State 3 58 1
November 14, 2015 Kansas 2 48 0
November 21, 2015 Oklahoma 4 98 1
November 27, 2015 Baylor 1 5 0
January 2, 2016 Oregon 1 1 0
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
(the coaches) knew, supervised, and/or approved of the injections.
44. In his very last game at TCU, Kolby started in the Valero Alamo Bowl versus the
University of Oregon. At halftime, Kolby complained to Dr. Mogonye that his pelvis was in
immense pain once again. Dr. Mogonye injected Kolby with anesthetic as he had done during
halftime of several other previous games. This time, however, Dr. Mogonye inadvertently injected
the anesthetic into Kolby’s femoral artery. Kolby immediately became paralyzed from the waist
down. When he tried to stand up and walk, Kolby collapsed on the locker room floor. It was
evident Kolby was not going to play the second half of his last ever bowl game. Now the question
was whether Kolby would even be able to watch the remainder of the game. Kolby was given a

barstool with wheels, similar to a doctor’s examination chair, and was wheeled out by his
teammates onto the sidelines. Kolby watched the rest of the game in that seat unable to walk.
G. Pressure on Kolby to Return to Play
45. 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.
46. 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
Burns that Kolby was in significant pain. Despite this knowledge and seeing Kolby being carried
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.
47. 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,
film sessions, and team meetings.
48. 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.
49. 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.
50. Kolby was told on numerous occasions that if he did not return to play it would be
“next man up” and that his position as wide receiver would be given to the next player on the
roster.
51. 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.
52. 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.
9
http://www.foxsports.com/college-football/story/tcu-horned-frogs-gary-patterson-kobly-listenbee-better-without-
100815

53. 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
unable to continue playing at TCU.
54. 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
before he was fully healed.
55. 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
entire infrastructure of his pelvis.
H. TCU and Big 12’s Lack of Policies, Procedures, and Protocols
56. Defendant TCU is a Division 1 NCAA university. Its football team is a perennial
powerhouse that strives for the national championship each year.
57. Defendant Big 12 is one of the top major collegiate conferences whose members
are always competing in the College Football Playoffs.
58. 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
and safety of its student athletes.
59. 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
despite their pain for fear of retribution or retaliation.

60. 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
orthopedic injuries such as osteitis pubis.
61. 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.
I. Systematic Pattern of Misconduct at TCU
62. Upon information and belief, the TCU football team implemented a system in
which a pattern of verbal abuse, pressure to return to play despite serious injuries, and negligent
medical treatment was prevalent and accepted.
63. This system was created by Defendant Patterson, supported by Defendants TCU,
TCU Board of Trustees, and Del Conte, and orchestrated by Defendants Meacham, Burns, Gable,
Smith, and LaCross.
64. Several examples of this systematic misconduct occurred prior to Plaintiff
Listenbee enrolling at TCU and during his time at TCU. They are as follows:
a. In 2002, former TCU running back Lonta Hobbs made history

with an incredible freshman year of 1,029 rushing yards scoring 13
touchdowns. In the offseason, Hobbs was involved in a catastrophic
car accident where he suffered a concussion. The trauma of the
accident caused Hobbs to be diagnosed with Post Traumatic Stress
Disorder (“PTSD”). The TCU coaching and training staff persuaded
Hobbs to return to Fort Worth from his hometown to obtain the medical
treatment he needed. However, Hobbs was never referred to a
psychiatrist or radiologist to treat his injury. Instead, for the two
months after the accident, Hobbs was “belligerent” and emotionally Lonta Hobbs
unstable. Despite showing signs of this instability, Hobbs was pressured into returning to
play. Hobbs was informed that should he not return, his job would be given to the new
freshman running back, Robert Merrill. The premature return caused Hobbs additional
emotional instability as well as physical unbalance. Hobbs was unable to return to the
player he once was due to this additional damage.

b. In 2010, former TCU running back Ed Wesley was concussed in a game against
Southern Methodist University. Then team physician Dr. Samuel Haraldson refused to
allow Wesley to return to the game because of the concussion. "Any loss of consciousness
is automatically considered a concussion," Haraldson said to the media about Wesley’s
incident. "He had an unsteady gait and a few memory problems.” It was due to that
decision that Defendant Patterson “verbally accosted” Haraldson for not clearing Wesley
to return to play. Defendant Patterson was “screaming at [Haraldson] insanely at the top
of his lungs that he doesn't think [Wesley] has a concussion and what right do [Haraldson]
have to hold him out." The confrontation happening during the game itself and was
captured live on ESPN. After the game, Defendant Patterson stated about Wesley that
“He’s fine. As far as I’m concerned he was fine 10 minutes after he got hurt. But it was
good that we protected him.” Although Wesley did not return to play in that game, the
incident was indicative of Defendant Patterson’s insistence that players return to play
despite suffering very serious injuries. Despite the audacity and publicity of the event,
Defendants TCU, TCU Board of Trustees, and Del Conte supported Defendant Patterson
and his actions. A frame of that verbal accosting is seen below.
Defendant Patterson verbally accosting then Team Physician Dr. Samuel Haraldson
c. In another incident, in the 2011 season, former TCU football player, David
Johnson, sprained his ankle. Johnson was administered pain medication and had his ankle
wrapped with lots of tape. When Johnson expressed worry to his position coach about not
being able to play because of his ankle, the position coach stated that “in your career, you
will never play at 100%. You will always be hurt. And if you can’t do that, we don’t have
a place for you here.” That player noticed that this became a “common thread [at TCU] –
players being informed by coaches that ‘if you don’t play this year, we have no use for you.

Future potential means very little, and we may very well not have a spot for you next year
if you sit out.”
d. Another incident involved David Johnson, but this

time in the Spring season of 2012. Johnson tore his
anterior cruciate ligament (“ACL”) in April 2012. In
discussions on how to repair the tear, the player was
informed by TCU’s athletic trainers and team physicians
that he had two options. He could replace his torn ACL
with an autograft – a piece of his own tissue – or with an
allograft – donor tissue from a cadaver. The player was
told that autograft was stronger and would hold better,
however the recovery time would be longer (nine months
compared to a six months recovery time with an allograft).
The football team would resume practicing for the
upcoming season a mere four months later. Before
deciding, Johnson had personal meetings with coaches,
including Defendant Patterson, in the coaches’ offices in David Johnson
the TCU football stadium. Johnson was informed “that if I
was unable to play the upcoming season, if I sat out, that they may not have a scholarship
for me the next year.” Due to this pressure, the player chose the allograft replacement
surgery because of the shorter recovery time. Immediately after the surgery, the player
began rehabilitating his knee. Although he was originally informed the
rehabilitation/recovery time would take six months, he was soon informed that TCU had
an “accelerated recovery process” that could have him “ready to go by 5 months.” By
August 2012, a mere four months after his ACL surgery, the player was cleared to practice
two-a-days. Despite feeling and reporting soreness in his knee, Johnson “knew [his] clock
was ticking.” Johnson was not fully healed from the ACL tear or his repair surgery. The
player returned to play in the 2012 season and was named a starter within eight weeks into
the season. In the ninth game, the player re-tore the same ACL due to the premature return
to play. He was 20 years old. The damage the rushed return to play caused was significant.
Johnson had damage to the head of his femur and extensive meniscus tears. He underwent
surgery for the damage and began rehabilitation immediately once again. Johnson
informed the training staff that the rehabilitation was not making the pain go away. The
comments were “shrugged off” and he was told to “continue working out the knee and not
let rehab be interrupted.” Johnson received several corticosteroid injections in his knee.
When he questioned the long-term effects to the tissue, he was told by the training staff
“not to worry about it, because I was young and would be fine.” Johnson rehabilitated his
knee for the rest of the season and into the Spring of 2013 in order to be ready for the 2013
season.
e. Johnson was involved in another incident before the 2013 season began. During a
pre-season practice, Johnson felt his twice-repaired knee “shift” and immediately started
limping. Fearing that he may have torn his ACL once again, Johnson removed himself
from the practice and went to the sidelines. He informed the trainers of his issue and was
told that he would be examined after the practice. Johnson stood on the sidelines and
continued to watch the practice in support of his teammates. Johnson stood in the back,

behind a line of teammates, so that he would be able to move out of the way of an oncoming
player on the field who was pushed to the sidelines. 10 Shortly thereafter, Defendant
Patterson walked by and “eyed” Johnson with a “disgusted look, shaking his head.”
Defendant Patterson made a derogatory statement to Johnson to which Johnson responded
that he was fearful about tearing his ACL again and that was why he was on the sidelines.
Defendant Patterson turned around and paced quickly at Johnson and said, “Standing in
the back sure changes your mouth.” Johnson asked what that meant to which Defendant
Patterson replied in anger “What did you say?!” Enraged, Defendant Patterson ordered
Johnson be removed from the practice. After the practice, Johnson was called into
Defendant Patterson’s office to discuss the confrontation. According to Johnson,
Defendant Patterson “beat around the bush with his words, not being clear or making sense,
which isn’t like him, besides when screaming.” When Johnson attempted to steer the
conversation back to the confrontation, Defendant Patterson did not want to continue the
discussion with Johnson and told him to leave. The next day, Johnson spoke to the team
physicians about having his knee scoped for possible clean up. The following day Johnson
was informed that he had been taken off the team roster and was no longer welcome back
on the team. 11
f. In another incident, after the 2012 season, former TCU star

defensive specialist Stansley Maponga was deciding whether to leave
TCU and enter the NFL Draft prior to his senior year season.
Defendant Patterson made it clear to the entire team that if Maponga
left early, Maponga would not be allowed to come back to TCU to
complete his degree in the future, would not be allowed to use the
facilities at TCU to work out, and that NFL scouts and coaches would
be informed that Maponga had a poor work ethic and was soft.
Stansly Maponga
g. In another incident during the 2013 season, former TCU wide
receiver Cameron White was concussed during a game and was cleared to return to the
field shortly thereafter. White was injured in a violent collision during the second game of
the season against SE Louisiana University. White came off the field and told the training
staff that “I don’t feel right.” Despite this information, the TCU trainers, including
Defendant Gable, cleared White to return to play. Upon information and belief, the TCU
trainers were pressured by Defendant Patterson to clear known injured players. After the
game, White’s concussion was counted as the last one he could suffer before becoming
“medically disqualified” to play football again. The player attempted to transfer to another
school near his hometown but was blocked by Defendant Patterson.
h. In another incident, involving Cameron White, White suffered an MCL sprain

during the game against Iowa State University. After the game, White was injected with
10
The first time Johnson injured his ACL, he was on the sidelines and a player on the field collided into him.
11
Johnson states that it was “a known fact that throughout the TCU program, voiced by [Defendant] Patterson himself,
that if you go against his will in your intentions to stay with or leave the program, he will make it intentionally difficult
for you to leave or gain a place [at] a new school. ..Patterson often would allege that he wouldn’t release you from
your ‘contract’ and would bad mouth you to other schools – tell the coaches there that you were lazy, don’t work hard,
and were not tough.”

an unknown substance by the team
physicians. White was subsequently
injected before each game for the rest of the
season, a total of 10 games. White was never
told what was in the injection or the long-
term effects of the injection. White was
never provided informed consent for the
injections. White also requested an MRI be
performed of his knee but was told by TCU
that it was unnecessary and was cleared to
return to play.
65. Upon information and belief,
Defendant Patterson, Meacham, Burns, and several
other members of the TCU coaching staff pressured,

Cameron White
harassed, abused, and humiliated many injured
football players in hopes that such manipulation would pressure the player to return to the field
before being fully healed and despite not fully understanding the severity of the damage the player
may suffer if he returned to play. This manipulative system was well known to Defendant TCU,
TCU Board of Trustees, and Del Conte.
66. In addition, upon information and belief, the TCU football coaches prefer to keep
the diagnosing and treating of their players “in house” with the TCU team physicians. In other
words, it is only on the rare occasion that an outside specialist would be consulted. For example,
an orthopedist for a serious injury like osteitis pubis. The coaches believe that the team physicians
can be easily manipulated to clear their players to return to play while an outside physician could
not be swayed as easily. This is evidenced by TCU’s lack of an orthopedic physician on staff nor
any radiology equipment on campus – unlike other top tier schools across the nation that have the
resources TCU has. The systematic scheme allows injured players to receive subpar treatment for
their serious injuries, gives the coaches premature return-to-play decision when serious injury or
harm could be caused, and creates an inherent conflict of interest.

67. In addition, upon and information, the head athletic trainer, Defendant David Gable,
is now engaged to be married to Head Team Physician, Dr. Michele Kirk. This relationship, which
was never disclosed to Plaintiff or any other TCU athlete, is a significant conflict of interest at
TCU. At TCU, the head team physician, who is the student-athlete’s last line of defense, is in a
personal relationship with the head Athletic Trainer, who works at the behest of the coaching staff
who simply want their players to return to competition from injury regardless of the long-term
implications. Failing to disclose this romantic relationship to the players is a significant lack of
informed consent.
68. Defendant Big 12 knew or should have known of TCU’s systematic misconduct of
its student-athletes but did nothing to prevent it or stop it once implemented. Defendant Big XII
failed to monitor, supervise, and/or audit TCU’s policies of student-athlete return-to-play clearance
and thereby allowed the systematic misconduct to continue.
J. Kolby’s Post College Path to the Professional Level
69. After the 2015 football season, Kolby graduated from TCU in December 2015.
70. Kolby attempted to pursue his dream of becoming a professional football player in
the National Football League.
71. 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.
72. In March 2016, Kolby underwent surgery to repair two sports hernias he developed
due to the injections administered to him after his September 19, 2015 injury.
73. In April 2016, Kolby was selected in the 6th Round by the Buffalo Bills – a
professional football team located in Buffalo, New York.

74. In May 2016, Kolby signed a four-year rookie contract with the Bills for
$2,472,932.
75. Despite practicing with the Bills, the team placed Kolby on the non-football injury
list in August 2016.
76. 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.
77. 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.
78. 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
began, Kolby was not offered a position on any team.
79. 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.
80. 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.
K. Kolby’s Damages
81. 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.

82. 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
earnings, and endorsement earnings.
83. In addition, Plaintiff’s injury resulted from Defendants’ gross negligence, malice,
or fraud, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies
Code section 41.003(a).
84. In addition, Plaintiff is entitled to recover reasonable and necessary attorney fees.
85. Plaintiff seeks unliquidated damages within the jurisdictional limits of this
Court. See Tex. R. Civ. P. 47(b).
CAUSE OF ACTION ONE – NEGLIGENCE AND GROSS NEGLIGENCE AGAINST

DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN
UNIVERSITY BOARD OF TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC.,
CHRIS DEL CONTE, AND DEFENDANT DOES 1-10
86. Plaintiff hereby incorporates all prior allegations as though set forth herein.
87. 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
institution/conference in the same or similar circumstances. Defendants also owed a fiduciary duty
to Plaintiff.
88. 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:
a. Negligently failing to implement or require procedures and/or policies on:
i. how to treat and clear to play student athletes for Plaintiff’s

specific injury;

ii. how and when to record, maintain, and retain medical
records for student athletes;
iii. how and when to refer/consult with specialists in specialized

medical fields related to Plaintiff’s injury;
iv. how and when pharmaceutical drugs, including local

anesthetics and corticosteroids, should be administered;
v. informing the student athlete of the risks of playing with

injury and the long-term implications;
b. negligent hiring, training, supervision of Defendant TCU’s doctors, athletic

trainers, coaches, and staff who were involved in Plaintiff’s injury;
c. negligently lacking an orthopedist and/or orthopedic surgeon on the football

team staff;
d. negligently lacking the protective equipment necessary for football players

who returned to play after being treated for the injury Plaintiff suffered;
e. Other breaches that may be discovered throughout litigation.
89. Defendants’ breaches of duty were with conscious indifference, malicious,
fraudulent, willful, reckless, and/or wanton.
90. 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,
and past and future aggravation of preexisting condition.
91. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.
92. Plaintiff’s injury resulted from Defendants’ gross negligence, which entitles
Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
93. 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
negligence on the part of the Plaintiff.

CAUSE OF ACTION TWO – NEGLIGENT HIRING, RETENTION, SUPERVISION,
TRAINING, AND MANAGEMENT AGAINST DEFENDANT TEXAS CHRISTIAN
UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD OF
TRUSTEES, CHRIS DEL CONTE, AND DEFENDANT DOES 1-10
95. 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.
96. The aforementioned individuals were unqualified to handle their duties and
responsibilities, generally, and as it relates to the incident in question.
97. 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.
98. Defendants failed to use ordinary care in hiring, retaining, supervising, training,
and managing the aforementioned individuals.
99. Defendants’ negligence in hiring, retaining, supervising, training, and managing
the aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.
100. Defendants’ actions and/or omissions were with conscious indifference, malicious,
101. 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
impairment, and past and future aggravation of preexisting condition.

CAUSE OF ACTION THREE – NEGLIGENT MISREPRESENTATION AGAINST

DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN
UNIVERSITY BOARD OF TRUSTEES, CHRIS DEL CONTE, AND DEFENDANT
DOES 1-10
106. Defendants represented the following to Plaintiff:
a. TCU’s football program had the nation’s best medical personnel;
b. Any injuries Plaintiff suffered would be treated properly;
c. Plaintiff’s health would be a top priority as it relates to playing

football; and
d. Plaintiff would not be placed in the uncomfortable position of being

forced back on the football field if he was not fully healed of his
injuries.
107. 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.
108. Defendants’ representation was a misstatement of facts and opinions. Defendants
did not use reasonable care in communicating the information to Plaintiff.
109. Plaintiff justifiably relied on Defendants’ representations when Plaintiff agreed to
play for the school’s football team.

111. Defendants’ misrepresentations proximately caused injury to Plaintiff, which
CAUSE OF ACTION FOUR – RES IPSA LOQUITOR AGAINST DEFENDANT TEXAS

CHRISTIAN UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD
OF TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC., DEFENDANT CHRIS
DEL CONTE, AND DEFENDANT DOES 1-10
116. Defendants directly and proximately caused the injuries and damages suffered by
Plaintiff.
117. It was Defendants’ responsibility to properly care for and treat Plaintiff.
118. That the events causing the injuries and damages to Plaintiff were of a kind which
do not ordinarily occur in the absence of negligence on the part of Defendants.
119. Thus, the doctrine of res ipsa loquitur is applicable as a theory of negligence,
causation and damages in this case and appropriately pled herein.
CAUSE OF ACTION FIVE – INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT
TEXAS CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, DEFENDANT BIG 12

CONFERENCE, INC., DEFENDANT CHRIS DEL CONTE, AND DEFENDANT DOES
1-10
121. Plaintiff brings suit against Defendants in Plaintiff’s individual capacity.
122. Defendants’ conduct, as described above, during the incident in question was
intentional and/or reckless.
123. Defendants’ conduct was extreme and outrageous.
124. Defendants’ conduct proximately caused severe emotional distress to Plaintiff.
125. Plaintiff’s severe emotional distress cannot be remedied by any other cause of
action.
126. Defendants’ conduct 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, and
past and future aggravation of preexisting condition.
128. Plaintiff’s injury resulted from Defendants’ conduct, which entitles Plaintiff to
exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
CAUSE OF ACTION SIX – FRAUD AGAINST DEFENDANT TEXAS CHRISTIAN

UNIVERSITY, DEFENDANT TEXAS CHRISTIAN UNIVERSITY BOARD OF
TRUSTEES, DEFENDANT BIG 12 CONFERENCE, INC., DEFENDANT CHRIS DEL
CONTE, AND DEFENDANT DOES 1-10

131. Defendants represented to Plaintiff that:

football; and

injuries.
132. 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’
football team. Plaintiff relied on these statements.
133. Defendants’ representation to Plaintiff was a false statement of opinion Defendants
knew (1) to be false, (2) to be based on false facts, and/or (3) Plaintiff would justifiably rely on
because of Defendants’ special knowledge.
134. Defendants made the false representations knowing they were false.
135. Defendants made the false representations recklessly, as a positive assertion, and
without knowledge of their truth.
136. Defendants either intended for Plaintiff to rely on these false representations or had
reason to expect Plaintiff would act in reliance on the false representations.
137. Plaintiff justifiably relied on Defendants’ false representation when Plaintiff agreed
to attend Defendants’ school and play for Defendants’ football team.
138. Defendants’ fraudulent conduct proximately caused injury to Plaintiff, which

140. Plaintiff’s injury resulted from Defendants’ fraudulent conduct, which entitles
were due to the fraudulent conduct of the Defendants, without any contributing negligence on the
part of the Plaintiff.
CAUSE OF ACTION SEVEN – VICARIOUS LIABILITY (RESPONDEAT SUPERIOR)

AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS
CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, AND DEFENDANT DOES 1-10
143. 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
within the authority delegated to the aforementioned Defendants.
144. As such, Defendants TCU and TCU Board are vicariously liable for the negligence
and gross negligence of the aforementioned individuals under the doctrine of respondeat superior.
CAUSE OF ACTION EIGHT – ACTUAL OR APPARENT AGENCY/AUTHORITY

AGAINST DEFENDANT TEXAS CHRISTIAN UNIVERSITY, DEFENDANT TEXAS
CHRISTIAN UNIVERSITY BOARD OF TRUSTEES, AND DEFENDANT DOES 1-10
146. 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
taken on behalf of Defendants were authorized.
147. Defendants held out Kirk and Mogonye as having the authority to act on
Defendants’ behalf as proven by their following acts and/or omissions:
a. Affirmatively holding Kirk and Mogonye out as having authority to act on

Defendants’ behalf;
b. Providing Kirk and Mogonye with an office within Defendants’ football

stadium;
c. Providing Kirk and Mogonye with examination rooms within Defendants’

football stadium;
d. Providing Kirk and Mogonye with official school clothing to wear;
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. 12
12
http://www.gofrogs.com/school-bio/tcu-medicine.html

Figure 7 - TCU Athletic Training and Sports Medicine Website
h. Failing to take affirmative steps to indicate to Plaintiff and other student

athletes that Kirk and Mogonye were anything other than agents or
employees of Defendants;
148. 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.
149. 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
Kirk and Mogonye had the authority to act on behalf of Defendants.
150. Plaintiff justifiably relied on Kirk and Mogonye’s authority.

151. As such, Defendants TCU and TCU Board are vicariously liable for the negligence
and gross negligence of the aforementioned team physicians under the doctrine of actual or
apparent authority.
CAUSE OF ACTION NINE – MEDICAL NEGLIGENCE, NEGLIGENCE, AND GROSS

NEGLIGENCE AGAINST DAVID GABLE, ZACH LACROSS, DILLON SMITH, AND
DEFENDANT DOES 1-10
153. Defendants are individuals licensed to practice medicine in Texas.
154. Defendants owed a legal duty to Plaintiff to possess and apply the knowledge and
to use the skill and care that is used by reasonable and prudent healthcare practitioners in the same
or similar circumstances.

specific injury;




b. Negligently recording, maintenance, and retention of Plaintiff’s medical

records;
c. Negligently failing to refer/consult with specialists in specialized medical

fields related to Plaintiff’s injury;
d. Negligently clearing Plaintiff to practice and play;

e. Negligently prescribing drugs to mask pain and seriousness of Plaintiff’s
injury;
f. Negligently prescribing corticosteroids on a continuous basis;
g. Negligently omitting risks and not fully disclosing to Plaintiff of playing

with injury and the long-term implications;
h. Negligently failing to warn of the risks of unreasonable harm resulting from

playing with Plaintiff’s condition before it was healed properly;
i. Negligently diagnosing Plaintiff’s injury;
j. Negligently lacking an orthopedist and/or orthopedic surgeon on staff;
k. Negligently lacking the protective equipment necessary for football players

who returned to play after being treated for the injury Plaintiff suffered;
l. Negligently violating the NCAA Sports Medicine Handbook relating to the

use of local anesthetics and corticosteroids; and
m. Other breaches that may be discovered throughout litigation.

CAUSE OF ACTION TEN – NEGLIGENT MISREPRESENTATION AGAINST
DEFENDANTS DAVID GABLE, ZACH LACROSS, DILLON SMITH, AND
DEFENDANT DOES 1-10

football; and
d. Plaintiff would not be placed in the uncomfortable position of

being forced back on the football field if he was not fully healed
of his injuries.
the course of a transaction in which Defendants had an interest.
164. Defendants’ representations were misstatements of facts and opinions. Defendants
return to play for the school’s football team.

CAUSE OF ACTION ELEVEN – RES IPSA LOQUITOR AGAINST DEFENDANTS

DAVID GABLE, ZACH LACROSS, DILLON SMITH, AND DEFENDANT DOES 1-10
Plaintiff.
CAUSE OF ACTION TWELVE – INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS AGAINST DEFENDANTS DAVID GABLE, ZACH LACROSS, DILLON
SMITH, AND DEFENDANT DOES 1-10
177. Plaintiff brings suit against Defendant in Plaintiff’s individual capacity.

action.
CAUSE OF ACTION THIRTEEN – LACK OF INFORMED CONSENT AGAINST

DEFENDANTS DAVID GABLE, ZACH LACROSS, DILLON SMITH, AND
DEFENDANT DOES 1-10
186. Plaintiff and Defendants established a physician-patient relationship. Plaintiff was
a student athlete and Defendants were the team physicians assigned to and that treated Plaintiff.
187. 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.

188. 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
anesthetics as well as the premature return to play.
189. A reasonable person would have refused the treatment plan if the risks and hazards
had been disclosed.
CAUSE OF ACTION FOURTEEN – FRAUD AGAINST DEFENDANTS DAVID GABLE,

ZACH LACROSS, DILLON SMITH, AND DEFENDANT DOES 1-10

football; and

injuries.
important to Plaintiff in making his decision to allow Defendants to implement their proposed
treatment plan. Plaintiff relied on these statements.

CAUSE OF ACTION FIFTEEN – FRAUD BY NONDISCLOSURE (FRAUDULENT

CONCEALMENT) AGAINST DEFENDANTS DAVID GABLE, ZACH LACROSS,
DILLON SMITH, AND DEFENDANT DOES 1-10
207. Defendants concealed and/or failed to disclose material facts relating to the
treatment plan implemented for Plaintiff.
208. 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.
209. 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.
210. Defendants knew Plaintiff was ignorant of the information and did not have an
equal opportunity to discover the truth.
211. Defendants deliberately remained silent and did not disclose the information to
Plaintiff.
212. By deliberately remaining silent, Defendants intended for Plaintiff to act without
the information.
213. Plaintiff justifiably relied on Defendants’ deliberate silence.

214. By deliberately remaining silent, Defendant 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, and past and future aggravation of preexisting condition.
CAUSE OF ACTION SIXTEEN – NEGLIGENCE AND GROSS NEGLIGENCE

AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES
RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10
219. 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
also owed a fiduciary duty to Plaintiff.

specific injury;




b. negligently hiring, training, supervision of Defendant TCU’s doctors, athletic

trainers, coaches, and staff who were involved in Plaintiff’s injury;
c. negligently lacking an orthopedist and/or orthopedic surgeon on the football team

staff;
d. negligently lacking the protective equipment necessary for football players who
returned to play after being treated for the injury Plaintiff suffered;
e. pressuring, threatening, humiliating, and harassing Plaintiff to agree to play despite

not being fully healed of his condition; and
f. Other breaches that may be discovered throughout litigation.

CAUSE OF ACTION SEVENTEEN – NEGLIGENT HIRING, RETENTION,

SUPERVISION, TRAINING, AND MANAGEMENT AGAINST DEFENDANTS GARY
PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND
DEFENDANT DOES 1-10
227. 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.
228. 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
and responsibilities, generally, and as it relates to the incident in question.
229. 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.
230. Defendants failed to use ordinary care in hiring, retaining, supervising, training,
and managing the aforementioned individuals.
231. Defendants’ negligence in hiring, retaining, supervising, training, and managing the
aforementioned individuals was the proximate cause of Plaintiff’s injury and damages.
233. Defendants’ actions and/or omissions proximately caused injury to Plaintiff, which

CAUSE OF ACTION EIGHTEEN – NEGLIGENT MISREPRESENTATION AGAINST

DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL
“RUSTY” BURNS, AND DEFENDANT DOES 1-10

football; and

injuries.
the course of a transaction in which Defendants had an interest – recruiting Plaintiff for the school’s
football team.
240. Defendants’ representation was a misstatement of facts and opinions. Defendants

play for the school’s football team.
CAUSE OF ACTION NINETEEN– RES IPSA LOQUITOR AGAINST DEFENDANTS

GARY PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS,
AND DEFENDANT DOES 1-10
Plaintiff.

CAUSE OF ACTION TWENTY– INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM,
JAMES RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10
253. Plaintiff brings suit against Defendant in Plaintiff’s individual capacity.
action.

CAUSE OF ACTION TWENTY-ONE – FRAUD AGAINST DEFENDANTS GARY
PATTERSON, DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND
DEFENDANT DOES 1-10

football; and

injuries.
important to Plaintiff in making his decision to attend Defendants’ school and play for Defendants’
football team. Plaintiff relied on these statements.

CAUSE OF ACTION TWENTY-TWO – FRAUD BY NONDISCLOSURE

(FRAUDULENT CONCEALMENT) AGAINST DEFENDANTS GARY PATTERSON,
DOUGLAS MEACHAM, JAMES RUSSELL “RUSTY” BURNS, AND DEFENDANT
DOES 1-10
275. Defendants concealed and/or failed to disclose material facts relating to the
treatment plan implemented for Plaintiff.
276. 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.
277. 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.
278. Defendants knew Plaintiff was ignorant of the information and did not have an
equal opportunity to discover the truth.
279. Defendants deliberately remained silent and did not disclose the information to
Plaintiff.
280. By deliberately remaining silent, Defendants intended for Plaintiff to act without
the information.
281. Plaintiff justifiably relied on Defendants’ deliberate silence.
282. By deliberately remaining silent, Defendant 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, and past and future aggravation of preexisting condition.
CAUSE OF ACTION TWENTY-THREE – LACK OF INFORMED CONSENT

AGAINST DEFENDANTS GARY PATTERSON, DOUGLAS MEACHAM, JAMES
RUSSELL “RUSTY” BURNS, AND DEFENDANT DOES 1-10
286. Plaintiff was a student athlete and Defendants were the head coach (Patterson) and
assistant coach (Burns) of the TCU football team.

287. 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.
288. 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
anesthetics as well as the premature return to play.
289. A reasonable person would have refused the treatment plan if the risks and hazards
had been disclosed.

JURY DEMAND
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.
REQUEST FOR DISCLOSURE
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.
REQUEST FOR PRODUCTION
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
to its own records on Plaintiff.
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,
and all other relief to which Plaintiff is entitled to.

Respectfully submitted,
POTTS LAW FIRM, LLP
By: /s/ Derek H. Potts

Derek H. Potts
Texas State Bar No. 24073727
Adam T. Funk
3737 Buffalo Speedway
Suite 1900
Houston, Texas 77098
Phone: (713)963-8881
Fax: (713)583-5388
Email: dpotts@potts-law.com
Email: afunk@potts-law.com
Timothy Micah Dortch

2911 Turtle Creek Blvd.
Suite 1000
Dallas, Texas 75219
Phone: (214) 396-9427
Email: mdortch@potts-law.com
Counsel for Plaintiff

TCU Lawsuit Update - 2/21/18

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FILED

CAUSE NO. CC-18-00585-A

KOLBY LISTENBEE, § IN THE COUNTY COURT

PLAINTIFF’S FIRST AMENDED PETITION

CHRISTIAN UNIVERSITY; TEXAS CHRISTIAN UNIVERSITY BOARD OF TRUSTEES;

DEL CONTE; GARY PATTERSON; JAMES RUSSELL “RUSTY” BURNS; DOUGLAS

1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

seeks monetary relief over $100,000.

PLAINTIFF’S FIRST AMENDED PETITION Page 1

3. Plaintiff is Kolby Listenbee. Plaintiff resides in Dallas, Dallas County, Texas.

4. Defendant Texas Christian University (“TCU”), is a Texas corporation whose

Dr., Fort Worth, Texas 76129.

5. Defendant Texas Christian University Board of Trustees (“TCU Board”), is a Texas

6. Defendant Big 12 Conference, Inc. (“Big 12”), is a Texas corporation whose

7. Defendant David Gable (“Gable”) is an individual who resides in Aledo, Parker

8. Defendant Zach LaCross (“LaCross”) is an individual who resides in Fort Worth,

PLAINTIFF’S FIRST AMENDED PETITION Page 2

Fort Worth, TX 76129.

13. Defendant Douglas Meacham (“Meacham”) is an individual who resides in

identified at a later date as relevant and indispensable parties to this lawsuit.

PLAINTIFF’S FIRST AMENDED PETITION Page 3

this state as well as the place of residence of Plaintiff Kolby Listenbee.

a. Defendant Texas Christian University is a private university in the Division

b. Defendant Big 12 is the collegiate conference of which Defendant TCU is

c. At the time of the incident in question, Defendant TCU employed the

i. Dr. Karen Michele Kirk (head team physician for TCU

ii. Dr. Jason Mogonye (assistant team physician for TCU

iii. David Gable (head Athletic Trainer for TCU football)

iv. Zach LaCross (assistant Athletic Trainer for TCU football)

v. Dillon Smith (assistant Athletic Trainer for TCU football)

vi. Chris Del Conte (Athletic Director for TCU)

vii. Gary Patterson (Head Coach for TCU Football)

viii. James Russell “Rusty” Burns (Assistant Coach for TCU

ix. Douglas Meacham (former Offensive Coordinator for TCU

x. John and Jane Does 1-10

PLAINTIFF’S FIRST AMENDED PETITION Page 4

TCU for college football starting in the Fall of 2012.

“reputation as one of the nation’s fastest collegians.” 1

26th best in all of college football for 2014.

PLAINTIFF’S FIRST AMENDED PETITION Page 5

his senior year as well as in the National Football League.

C. Game that Created the Incident(s) in Question

six more points to add to their lead.

PLAINTIFF’S FIRST AMENDED PETITION Page 6

Figure 2 - Awkward fall after catch

Figure 3 - Awkward Fall after catch

PLAINTIFF’S FIRST AMENDED PETITION Page 7

Figure 5 - Kolby receiving massage therapy

D. Kolby’s Initial Diagnosis

MRI without contrast to confirm the diagnosis.

PLAINTIFF’S FIRST AMENDED PETITION Page 8

E. Osteitis Pubis and Standard Treatment

the two pubic bones) and surrounding muscles. 5 See, Figure 6.

Figure 6 - Osteitis Pubis

PLAINTIFF’S FIRST AMENDED PETITION Page 9

doses. This atrophy can result in further musculoskeletal injury.

a. Injectable corticosteroids should be administered only after more

b. Repeated corticosteroid injections at a specific site should be done

c. Corticosteroid injections only should be done if a therapeutic effect

d. These agents should only be administered when medically justified,

a. These agents should only be administered when medically justified,

36. The Handbook specifically does not recommend the following:

a. The use of local anesthetic injections if they jeopardize the ability

PLAINTIFF’S FIRST AMENDED PETITION Page 10