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Colonic Promoters Facing Legal Actions

Stephen Barrett, M.D.


Jimmy John Girouard, Colon Therapeutics (Girouard's company), operators of the Years to Your Life Health Centers, companies that manufactured several components of Girouard's colonic irrigation systems, and organizations that trained operators of the devices are being sued in connection with the death of a 72-year-old woman who perforated her large intestine while administering colonic irrigation. Girouard and his company have also been warned by the FDA that their devices require professional supervision and cannot be legally marketed directly to consumers. The warning letter states that Girouard obtained marketing clearance only for use in medically indicated colon cleansing, such as before radiologic or sigmoidoscopic examinations. The suit alleges that the woman was unsupervised when she administered the "colonic," perforated her colon early in the procedure, required surgery the same day, and remained seriously ill for several months before she died from liver failure. The complaint also alleges that Years to Your Life Health Center falsely advertised colonic irrigations as "painless" procedures which provided health benefits including an improved immune system and increased energy, as well as relief from indigestion, diarrhea, constipation, weight loss, body odor, candida, acne, mucus colitis, gas, food cravings, fatigue, obesity, diverticulosis, bad breath, parasitic infections, and premenstrual syndrome. In 1997, the FDA warned Girouard about safety violations and warned Tiller Mind and Body, Inc. (another defendant) about illegal claims and manufacturing violations.

Colonic irrigation has no rational role in the prevention or treatment of any health problem. The Colon Therapeutics Web site actually states that "there are no proven medical benefits from colonics."

In December 2003, the Texas Attorney General announced that he had filed a total of six lawsuits against Eternal Health Inc., dba Years to Your Life and Cynthia Pitre; Jennifer Jackson, dba Body Cleanse Spa; Tiller Mind Body Inc., dba Mind Body Naturopathic Institute and Jerri Tiller; Colon Therapeutics Inc. and Jimmy John Girouard; International Association for Colon Hydrotherapy, Class 3 Study Group and Augustine R. Hoenninger III; Linda Gonzalez, dba El Paso Health Center. The suits charge that all of the defendants have engaged in the promotion, sale or unauthorized use of prescription devices for colonic hydrotherapy treatments without physician involvement. The state is seeking (a) temporary and permanent injunctions, (b) civil penalties of up to $25,000 per day per violation of the state's Health and Safety Code, (c) civil penalties of up to $20,000 per violation of the state's Deceptive Trade Practices Act, (d) investigative costs, and (e) attorneys' fees.


THE ESTATE OF LAVERNE BURRELL,
BY AND THROUGH ITS
ADMINISTRATOR. DUANE BURRELL.
DUANE BURRELL, INDIVIDUALLY.
DIANE HAMPTON, AND
LINDELL BURRELL

VS

CYNTHIA PITRE. ETERNAL
HEALTH, INC. D/B/A YEARS TO
YOUR LIFE HEALTH CENTERS,
JIMMY JOHN GIROUARD. AND
COLON THERAPEUTICS, INC.

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CAUSE NO. E-168,700

IN THE DISTRICT COURT OF

JEFFERSON COUNTY, TEXAS

172ND JUDICIAL DISTRICT COURT

FILED SEPT 22, 2003

PLAINTIFFS' SEVENTH AMENDED PETITION

The plaintiffs, the Estate of Laverne Burrell, by and through its Administrator, Duane Burrell, Duane Burrell, Individually, Diane Hampton, and Lindell Burrell, file this Seventh Amended Petition complaining of the following defendants: Cynthia Pitre, Eternal Health, Inc. d/b/a Years to Your Life Health Centers, Jimmy John Girouard, Colon Therapeutics, Inc.. Alice Coudrain, Tiller Mind and Body, Inc., the International Association for Colon Hydrotherapy, Candace L. Stowers, Colon Therapeutics Research Institute, Atlantis Plastics Company, and PFI Molding, Inc. For causes of action, the plaintiffs respectfully show the following.

PARTIES

A. Plaintiffs:

Duane Burrell, Diane Hampton, and Lindell Burrell are the surviving adult children of Laverne Burrell.

Duane Burrell, as the Administrator of the Estate of LavernJ Burrell, brings survival causes of action on behalf of the Estate of Laverne Burrell.

Defendants:

  1. Cynthia Pitre has answered this lawsuit.
  2. Eternal Health, Inc. d/b/a Years to Your Life Health Centers has answered this lawsuit
  3. Jimmy John Girouard has answered this lawsuit.
  4. Colon Therapeutics, Inc. has answered this lawsuit.
  5. Alice Coudrain has answered this lawsuit.
  6. Tiller Mind and Body, Inc. has answered this lawsuit.
  7. The International Association for Colon Hydrotherapy has answered this lawsuit.
  8. Candace L Stowers has answered this lawsuit.
  9. Colon Therapeutics Research Institute has not yet answered this lawsuit.
  10. Atlantis Plastics Company has answered this lawsuit.
  11. PFI Molding, Inc. has not yet answered this lawsuit.

STANDING. JURISDICTION. AND VENUE

This is a wrongful death and survival case filed pursuant to § 71.001 et seq. of the Texas Civil Practice & Remedies Code. It is brought by the Estate of Laverne Burrell and her three surviving children.

This lawsuit is also based on violations of the Texas Deceptive Trade Practices Consumer Protection Act ("DTPA"), as set forth in Chapter 17 of the Texas Business & Commerce Code, and products liability law.

Venue is proper in Jefferson County, Texas because Jimmy John Girouard resides in Jefferson County, Texas, and because his company, Colon Therapeutics, Inc., is located in Jefferson County, Texas.

Venue is also proper in Jefferson County, Texas because a substantial part the events or omissions giving rise to this lawsuit occurred in Jefferson County, Texas.

Damages exceed the Court's minimum jurisdictional limits.

FACTUAL BACKGROUND & DESCRIPTION OF PARTIES

On August 14, 2002, Laverne Burrell died from complications of a punctured colon. Ms. Burrell's colon was punctured on April 20, 2002 when she received a "colonic" at Years to Your Life Health Centers. Ms. Burrell was in immediate severe pain, and she died a slow and painful death over the next 116 days.

On April 20, 2002, Ms. Burrell was an active 72-year old woman who had never had a "colonic" before. The procedure involved serious health risks, including the risk of death, and these risks were not disclosed to Ms. Burrell. In addition, no one told Ms. Burrell that "colonics" do not provide any medical benefits.

In addition, the "colonic" table and rectal nozzle that were used to administer the colonic to Ms. Burrell were prescription medical devices, which could only be possessed by, and used on the order of, a licensed physician. No one at Years to Your Life Health Centers had any medical training, and no one was a licensed healthcare professional. These facts were also not disclosed to Ms. Burrell.

When Laverne Burrell arrived at Years to Your Life Health Centers, Candace L. Stowers, an employee, took Ms. Burrell into a room where she was shown a video about proper nutrition. The video had nothing to do with the colonic procedure that Ms. Burrell was about to receive. When the video was over, Candace L. Stowers took Ms. Burrell into a second room which contained an inclined colon irrigation table. Ms. Burrell was briefly told how to administer the procedure to herself, which included disrobing from the waist down, climbing up on the table, and sliding down on the table until a plastic tube located in the middle of the table was pushed into her rectum. Ms. Burrell was told to then press a button which would start the flow of water into her colon. Ms. Burrell was left to do this alone.

At no time did anyone tell Laveme Burrell that colonics involve serious health risks, including death.

Ms. Burrell started the process as she had been instructed by Candace Stowers, but began suffering severe abdominal pain almost immediately. Unbeknownst to her, the plastic water nozzle from the irrigation table had punctured her colon, which began leaking and poisoning her internal organs. No one from Years to Your Life Health Centers offered Ms. Burrell assistance or called an ambulance.

Ms. Burrell's condition worsened, and she was hospitalized within two or three hours of receiving the colonic. That night, emergency surgery was required to resect Ms. Burrell's colon, wash out her abdominal cavity, and perform a colostomy. A few weeks later while still in the hospital, an intestinal obstruction developed which required a second surgery. During the second surgery, infection was found in Ms. Burrell's pelvis area. Ms. Burrell was discharged from the hospital approximately seven weeks later on June 1, 2002.

A few days later, on June 10, 2002, Ms. Burrell was hospitalized again because her liver was starting to shut down, as evidenced by the yellowing of her eyes and skin.

She was discharged ten days later because her condition could not be medically treated any further. Ms. Burrell was hospitalized once more, but was discharged within a few days because nothing could be done for her. In short, Ms. Burrell was sent home to die.

On August 14, 2002, Laverne Burrell died. She was survived by two sons, Lindell and Duane Burrell, and a daughter, Dianne Hampton.

All of the defendants in this case are responsible for Laverne Burrell's death. Three of the defendants in this case were directly involved in providing the colonic services to Ms. Burrell at Years to Your Life Health Centers. These defendants are:

  1. Eternal Health, Inc. d/b/a Years to Your Life Health Centers;
  2. Cynthia Pitre, the founder, sole shareholder, and sole executive officer of Eternal Health, Inc. d/b/a Years to Your Life Health Centers; and
  3. Candace L. Stowers, the employee who directly assisted Laverne Burrell.

These defendants are "sellers" of defective products, as defined by Section 82.001(3) of the Texas Civil Practice & Remedies Code.

Cynthia Pitre and her business, Years to Your Life Health Centers, advertised colonic irrigations as "painless" procedures which provided health benefits including an improved immune system and increased energy, as well as relief from indigestion, diarrhea, constipation, weight loss, body odor, candida, acne, mucus colitis, gas, food cravings, fatigue, obesity, diverticulosis, bad breath, parasitic infections, and premenstrual syndrome. Cynthia Pitre actually claimed that colonic irrigations were key to her successful battle with breast cancer.

Five other defendants in this lawsuit were involved in the design, manufacture, and sale of the unreasonably dangerous products that were used on Ms. Burrell. These defendants are:

  1. Jimmy John Girouard;
  2. Colon Therapeutics, Inc.;
  3. Alice Coudrain;
  4. Atlantis Plastics Company; and
  5. PFI Molding, Inc.

Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain manufactured and sold the colon irrigation table that was used to administer the colonic to Laverne Burrell. Jimmy John Girouard and Colon Therapeutics, Inc. are "sellers" and "manufacturers" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. Alice Coudrain is a "seller" of defective products, as defined by Section 82.001(3) of the Texas Civil Practice & Remedies Code. These defendants' products were prescription medical devices which could only be possessed by, and used on the order of, a licensed physician. Despite these restrictions, Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain sold these products to anyone, regardless of their medical training.

Atlantis Plastics Company manufactured the rigid plastic tubing that was a component part of the rectal nozzle that Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain incorporated into their colon irrigation table. Therefore, Atlantis Plastics Company is a "seller" and a "manufacturer" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. On information and belief, Laverne Burrell was administered a colonic using a rectal nozzle that had been manufactured by Atlantis Plastics Company.

PFI Molding, Inc. manufactured the tip of the rectal nozzle. The rectal nozzles were a combination of nozzles from PFI Molding, Inc. attached to the plastic tubing from Atlantis Plastics Company. As such, the nozzle tips were component parts of the rectal nozzles that Jimmy John Girouard, Colon Therapeutics, and Alice Coudrain incorporated into their colon irrigation table. Therefore, PFI Molding, Inc. is a "seller" and a "manufacturer" of defective products, as defined by Section 82.001(3) & (4) of the Texas Civil Practice & Remedies Code. On information and belief, Laverne Burrell was administered a colonic using a rectal nozzle that had a tip on it that had been manufactured by PFI Molding, Inc.

In addition, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, and Colon Therapeutics Research Institute trained Cynthia Pitre regarding the administration of colonics, even though they had no college degrees or medical training. Upon the conclusion of the defendants' multi-day training course in a trailer located behind Jimmy John Girouard's house, Cynthia Pitre had no medical credentials whatsoever, and she had no authority to possess, prescribe, or use the prescription medical devices that were designed, manufactured, and sold by Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain. On behalf of the "Board of Examiners of Colon Therapeutics Research Institute," Jimmy John Girouard signed Cynthia Pitre training certificate as a "certified instructor," and Alice Coudrain signed the certificate as a "certified examiner." The defendants knew or should have known of these restrictions, yet their training course failed to inform Cynthia Pitre in this regard. This same training course also failed to inform Cynthia Pitre of the serious risks associated with colonics, even though these defendants knew or should have known of these risks.

Another defendant, Tiller Mind and Body, Inc., trained Candace L. Stowers, the "colonic technician" who assisted Ms. Burrell at Years to Your Life Health Centers on April 20, 2002. On information and belief, Tiller Mind and Body, Inc. failed to inform Mrs. Stowers regarding the serious risks associated with colonics, even though Tiller Mind and Body, Inc. knew or should have known of these risks. Also on information and belief, this same training program failed to inform Mrs. Stowers that prescription medical devices, such as those that were used at Years to Your Life Health Centers on Laverne Burrell, cannot be used to administer colonics unless a licensed physician prescribes the procedure, and possesses and supervises the use of the equipment. If Tiller Mind and Body, Inc. had properly trained Candace L. Stowers regarding colonics and prescription medical devices, Laverne Burrell would not have received a colonic because:

  1. Ms. Burrell did not have a prescription from a licensed physician;
  2. no one at Years to Your Life Health Centers had the authority to possess the prescription medical devices that were used on Ms. Burrell;
  3. no one at Years to Your Life Health Centers had the authority to use the prescription medical devices that were used on Ms. Burrell; and
  4. adequate warnings regarding the dangers of the procedure would have changed Ms. Burrell's mind about receiving a colonic.

Finally, the International Association for Colon Hydrotherapy (which is abbreviated as "I-ACT") is an organization of colon hydrotherapists located in San Antonio. It has no government affiliation or sponsorship whatsoever. On information and belief, I-ACT created the curriculum that was used by Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, and Colon Therapeutics Research Institute to teach Cynthia Pitre and Candace L. Stowers about colonics.

It is believed this same curriculum was used to educate Alice Coudrain who, in turn, helped educate Cynthia Pitre. I-ACT knew or should have know of the serious risks associated with colonics, yet failed to incorporate any such wamings into its curriculum.

In addition, I-ACT knew or should have known that prescription medical devices cannot be used to administer colonics unless a licensed physician possesses the equipment, and prescribes and monitors the procedure. I-ACT also failed to incorporate this critical information into its teaching curriculum. I-ACT's faulty curriculum kept crucial information from those who were involved in providing colonic services to Laverne Burrell, which was a proximate cause of Ms. Burrell's injuries and resulting death.

In summary, Laverne Burrell was killed by snake oil salesmen. The defendants' products and services posed grave health risks to consumers and provided no medical benefits whatsoever. Each defendant knew or should have known this, yet none of them took any action that was calculated to inform customers, like Laverne Burrell, of this critical information.

Each defendant knew or should have known of the serious risks associated with colonics. Each defendant was in a position to warn Laveme Burrell about these risks, directly or indirectly, yet not one of them did.

Each defendant knew or should have known that colonics can only be prescribed by a licensed physician, yet not one of the defendants took any action that was intended to inform customers. like Laverne Burrell. of this fact.

Each defendant knew or should have known that the colonic table and rectal nozzle were prescription medical devices that could only be possessed by a licensed physician, yet not one of the defendants took any action that was intended to inform customers, like Laverne Burrell, of this fact.

These unscrupulous acts killed Laverne Burrell.

FIRST CAUSE OF ACTION: NEGLIGENCE

The plaintiffs incorporate by reference the allegations set forth above. The defendants engaged in negligent conduct which proximately caused Laverne Burrell's injuries and resulting death. Examples of negligence include the following:

Negligence of Eternal Health. Inc. d/b/a Years to Your Life Health Centers Cynthia Pitre. and Candace L. Stowers:

  1. Failing to warn Laverne Burrell of the serious health risks associated with colonics;
  2. Failing to advise Laverne Burrell that colonics provide no proven health benefits;
  3. Failing to warn Laverne Burrell that no one with Years to Your Life Health Centers was properly trained to administer colonics using prescription medical devices;
  4. Failing to warn Laverne Burrell that no one with Years to Your Life Health Centers was a licensed health care professional;
  5. Failing to warn Laverne Burrell that prescription medical devices were going to be used on her;
  6. Failing to warn Laverne Burrell that a prescription from a licensed physician was required for the use of the prescription medical devices;
  7. Failing to obtain proper medical authorization before using prescription medical devices on Laverne Burrell;
  8. Failing to warn Laverne Burrell that no one with Years to Your Life Health Centers was authorized to possess the prescription medical devices that were to be used on her;
  9. Possessing and using prescription medical devices when not authorized to do so;
  10. Failing to provide proper training to the individual who administered the colonic to Laverne Burrell;
  11. Failing to provide proper medical supervision while the colonic procedure was administered to Laverne Burrell; and
  12. Failing to obtain medical treatment for Laverne Burrell when it was obvious that she was in extreme pain.

Negligence of Jimmv John Girouard, Colon Therapeutics. Inc.. and Alice Coudrain:

  1. Selling prescription medical devices to Cynthia Pitre when she was not authorized to possess the devices;
  2. Selling prescription medical devices to Eternal Health, Inc. d/b/a Years to Your Life Health Centers when no one associated with that entity was authorized to possess the devices;
  3. Failing to provide proper warnings on the prescription medical devices that were sold to Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers;
  4. Failing to properly train Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers regarding the serious health risks associated with colonics;
  5. Failing to take reasonable steps to make sure customers are adequately warned of the risks of colonics;
  6. Failing to advise Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that colonics provide no proven health benefits;
  7. Failing to advise Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers of the prior instances in which individuals suffered severe adverse side effects from colonics;
  8. Failing to inform Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that no one with Years to Your Life Health Centers was authorized to possess prescription medical devices;
  9. Failing to inform Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that no one with Years to Your Life Health Centers was authorized to administer colonics using prescription medical devices; and
  10. Failing to inform Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that a prescription from a licensed physician was required for the use of prescription medical devices.

Negligence of Atlantis Plastics Companv and PFI Molding. Inc.:

  1. Selling medical device component parts (i.e., the component parts of the rectal nozzles) to Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain when they were not authorized to possess such devices; and
  2. Failing to provide proper warnings on its medical device component parts that were sold to Jimmy John Girouard, Colon Therapeutics, Inc., and Alice Coudrain.

Negligence of Colon Therapeutics Research Institute:

  1. Failing to properly train Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers regarding the serious health risks associated with colonics;
  2. Failing to advise Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that colonics provide no proven health benefits;
  3. Failing to advise Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers of the prior instances in which individuals suffered severe adverse side effects from colonics;
  4. Failing to inform Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that no one with Years to Your Life Health Centers was authorized to administer colonics using prescription medical devices; and
  5. Failing to inform Cynthia Pitre and/or Eternal Health, Inc. d/b/a Years to Your Life Health Centers that a prescription from a licensed physician was required for the use of prescription medical devices.
  6. Failing to teach Candace L. Stowers about prescription medical devices at all;
  7. Failing to advise Candace L. Stowers that only licensed physicians are authorized to possess prescription medical devices;
  8. Failing to advise Candace L. Stowers that licensed physicians must prescribe colonics when prescription medical devices are used to administer the colonic; and
  9. Failing to advise Candace L. Stowers that a licensed physician must supervise the use of prescription medical devices.

Negligence of Tiller Mind and Body, Inc.:

  1. Failing to properly train Candace L. Stowers regarding the serious health risks associated with colonics:
  2. Failing to advise Candace L. Stowers that colonics provide no proven health benefits;
  3. Failing to advise Candace L. Stowers of the prior instances in which individuals suffered severe adverse side effects from colonics;
  4. Failing to teach Candace L. Stowers about prescription medical devices;
  5. Failing to advise Candace L. Stowers that only licensed physicians are . authorized to possess prescription medical devices;
  6. Failing to advise Candace L. Stowers that licensed physicians must prescribe colonics when prescription medical devices are used to administer the colonic; and
  7. Failing to advise Candace L. Stowers that a licensed physician must supervise the use of prescription medical devices.

Negligence of the International Association for Colon Hydrotherapy:

  1. Failing to develop a teaching curriculum that contained warnings regarding the serious health risks associated with colonics;
  2. Failing to develop a teaching curriculum that addressed the restrictions on possession and use of prescription medical devices in the administration of colonics;
  3. Failing to advise its members, including Jimmy John Girouard, Alice Coudrain, Cynthia Pitre, and Candace L. Stowers, that serious health risks are associated with colonics, and that colonics provide no proven health benefits;
  4. Failing to advise its members, including Jimmy John Girouard, Alice Coudrain, Cynthia Pitre, and Candace L. Stowers, of prior instances in which individuals suffered severe adverse side effects from colonics; and
  5. Failing to advise its members, including Jimmy John Girouard, Alice Coudrain, Cynthia Pitre, and Candace L. Stowers, about the restrictions on prescription medical devices in the administration of colonics.

Negligence Per Se of Eternal Health. Inc. d/b/a Years to Your Life Health Centers. Cynthia Pitre. Candace L. Stowers. Jimmv John Girouard. Colon Therapeutics. Inett Alice Coudrain. Atlantis Plastics Company. and PFI Molding.

The conduct of Etemal Health, Inc. d/b/a Years to Your Life Health Centers, Cynthia Pitre, Candace L. Stowers, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, Atlantis Plastics Company. and PFI Molding, Inc. constitutes negligence per sa because they designed, manufactured, sold, possessed and/or used FDA registered devices in contravention of the FDA regulations and guidelines governing these devices. These regulations were designed to protect the general public from serious injuries and death. If these defendants had followed FDA rules and regulations regarding the use of prescription medical devices, Laveme Burrell would not have received a colonic at Years to Your Life Health Centers, and she would not have suffered her fatal injuries.

SECOND CAUSE OF ACTION: NEGLIGENT MISREPRESENTATION

The plaintiffs incorporate by reference the allegations set forth above.

The defendants made negligent misrepresentations. Specifically, they made representations in the course of their business or in a transaction in which they had a pecuniary interest, the representations supplied false information for the guidance of others in their business, and they did not exercise reasonable care or competence in obtaining or communicating the information. These negligent misrepresentations proximately caused Laverne Burrell's injuries and resulting death.

THIRD CAUSE OF ACTION: DTPA VIOLATIONS

The plaintiffs incorporate by reference the allegations set forth above. Laverne Burrell was an individual consumer who sought or acquired the defendants' goods and services. The defendants are "persons" who can be sued under, the DTPA. See Tex. Bus. & Com. Code Ann. § 17.50(a)(1).

The defendants committed the following violations of the DTPA:

  1. They represented goods and services had uses, benefits, or qualities which they did not (see § 17.46(b)(5»;
  2. They represented goods and services were of a particular standard, quality, or grade when they are of another (see § 17.46(b)(7));
  3. They failed to disclose information concerning goods and services which was known at the time of the transaction and such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed (see § 17.46(b)(24));
  4. They breached express or implied warranties (see § 17.50(a)(2»; and
  5. They engaged in an unconscionable actions or courses of action (see § 17.50(a)(3)).

This conduct entitles the plaintiffs to recover actual damages, economic damages, attorneys' fees, and court costs. See § 17.50(b)(1) & (d).

In addition, the defendants knowingly engaged in the above-referenced conduct, thereby entitling the plaintiffs to awards of mental anguish and treble economic damages. See § 17.50(b)(1).

Alternatively, the defendants intentionally engaged in the above-referenced conduct, thereby entitling the plaintiffs to treble mental anguish and economic damages. See § 17.50(b)(1).

FOURTH CAUSE OF ACTION: PRODUCTS LIABILITY

The plaintiffs incorporate by reference the allegations set forth above.

The colonic irrigation devices described above were unreasonably dangerous, and were designed, manufactured, produced, sold and/or marketed by Cynthia Pitre, Eternal Health, Inc. d/b/a Years to Your Life Health Centers, Candace L. Stowers, Jimmy John Girouard, Colon Therapeutics, Inc., Alice Coudrain, Atlantis Plastics Company, and PFI Molding, Inc. The dangers of these devices, when in the hands of untrained medical personnel, went beyond that which would have been contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the products' characteristics.

Further, these defendants failed to give adequate warnings of the products' dangers which were known by them, or by the application of reasonably developed human skill and foresight should have been known by them, or failed to give adequate instructions to avoid such dangers, which failure rendered the products unreasonably dangerous.

These failures were proximate causes of Laverne Burrell's injuries and death.

FIFTH CAUSE OF ACTION: FRAUD

The plaintiffs incorporate by reference the allegations set forth above.

The defendants committed common law fraud because they failed to disclose material facts concerning their products and services. Specifically:

  • they failed to disclose material facts concerning the safety of colonics and the manner in which such procedures should be administered;
  • they knew that colonic irrigations involved grave safety risks and were supposed to be performed only under medical supervision;
  • they knew that Laverne Burrell was ignorant of these facts and did not have an equal opportunity to discover the truth;
  • they intended to induce Laverne Burrell to submit to a colonic irrigation by failing to disclose these facts; and
  • Laverne Burrell suffered severe injuries and death as a result of acting without knowledge of these undisclosed facts.

The plaintiffs seek recovery of all actual and exemplary damages proximately caused by this fraudulent conduct.

FRAUD. MALICE. AND GROSS NEGLIGENCE

The defendants' conduct was grossly negligent and malicious, as those terms are defined in Tex. Civ. Prac. & Rem. Code § 41.001(7)(B). See Tex. Civ. Prac. & Rem. Code § 41.003(a)(3) (in wrongful death cases, "gross neglect" and "malice" share the same definition under § 41.001 (7)(B)).

The defendants' deceptive conduct (as described above) was also fraudulent, as described above. Therefore, the plaintiffs are entitled to exemplary damages in an amount to be determined by a jury.

WRONGFUL DEATH AND SURVIVAL CLAIMS

The defendants are liable for the death of Laverne Burrell under the Texas Wrongful Death and Survival Statutes.

Under the Survival Statute, the defendants are liable for all injuries sustained and damages incurred by Laverne Burrell, including but not limited to conscious pain and suffering, mental anguish, medical expenses, and funeral expenses.

Under the Wrongful Death Statute, the defendants are liable to Duane Burrell, Dianne Hampton, and Lindell Burrell for their damages proximately caused by the defendants' conduct, including mental anguish and suffering, loss of companionship and society, medical expenses, and funeral expenses.

DAMAGES

Laverne Burrell died a slow and painful death because the defendants participated in a deceptive scheme to provide "colonics" to the unsuspecting public.

The procedure appeared to have medical sponsorship, and it was supposed to be completely safe and make Ms. Burrell feel better. Nothing could have been farther from the truth.

When Laverne Burrell's colon was punctured on April 20, 2002, she immediately experienced severe abdominal pain. Ms. Burrell required immediate emergency medical attention, and she underwent surgery that evening to resect her colon, wash out her abdominal cavity, and perform a colostomy. Several days later, an intestinal obstruction developed which required a second surgery.

On June 1, 2002, Ms. Burrell was discharged from the hospital. She was cared for by family members in the home of Ms. Burrell's daughter, Dianne Hampton.

On June 10, 2002, Ms. Burrell was hospitalized again because she was experiencing liver failure as evidenced by the yellowing of her eyes and skin. On June 20, 2002, Ms. Burrell was discharged because doctors could not help her.

On July 22, 2002, Ms. Burrell was taken by ambulance to the hospital for a third time. On July 26, 2002, Ms. Burrell was sent home again because doctors could not help her. She was sent home to die.

From the day her colon was punctured, Laverne Burrell never returned to her own home - she spent her remaining days either agonizing in the hospital or in her daughter's home because she required constant assistance with her daily activities and bodily functions.

On August 14, 2002, Laverne Burrell died.

Ms. Burrell's children have suffered extreme mental anguish due to the loss of their beloved mother, and will continue to suffer these damages for many years into the future.

Although it pales in comparison to the tremendous pain and mental anguish suffered by her, Laverne Burrell also incurred substantial medical expenses relating to the many medical treatments which were rendered.

Upon her death, Laverne Burrell's children incurred funeral expenses to bury their mother.

ATTORNEYS' FEES

Pursuant to Section 17.50 of the Texas Deceptive Trade Practices Act, the plaintiffs are entitled to their reasonable and necessary attorneys' fees.

NO CAPS ON EXEMPLARY DAMAGES

Exemplary damages will not be capped by Section 41.008(b) of the Texas Civil Practice & Remedies Code because the defendants' conduct constitutes a knowing violation of Section 22.04 of the Texas Penal Code, Injury to an Elderly or Disabled

Individual, because Laverne Burrell was 72 years old when she suffered her fatal injuries. Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c)(7).

CONDITIONS PRECEDENT

All conditions precedent have been performed or have occurred as required by Texas Rule of Civil Procedure 54.

JURY DEMAND

The plaintiffs have previously requested a trial by jury on all issues and tendered the requisite jury fee.

PRAYER

WHEREFORE, the plaintiffs, the Estate of Laverne Burrell, by and through its Administrator, Duane Burrell, Duane Burrell, Individually, Diane Hampton, and Lindell Burrell, respectfully pray that PFI Molding, Inc. be cited to appear and answer herein, and that upon final consideration, they be awarded judgment for those actual, treble, and exemplary damages described above in an amount to be determined by the jury, attorneys' fees, prejudgment and post judgment interest as allowed by law, costs of court, and such other and further relief, at law or in equity, to which they may be justly entitled.

Respectfully submitted

RUSTY HARDIN & ASSOCIATES.P.C
Rusty Hardin
State Bar No.: 08972800 Bob Galatas
State Bar No.: 00787509
1201 Louisiana, Suite 3300
Houston, Texas 77002
(713) 652-9000 Telephone
(713) 652-9800 Facsimile

RIENSTRA, DOWELL & FLATTEN
Gerald R. Flatten
State Bar No.: 07112500
595 Orleans Street, Suite 1007
Beaumont, Texas 77701-3020
(409) 833-6317 Telephone
(409) 833-9530 Facsimile

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on all counsel of record and unrepresented parties, on September 19, 2003, pursuant to Rule 21a.

Dana Timaeus Timaeus & Rose, L.L.P.
1612 Interstate 10
South Beaumont, Texas 77007

Michael McGown
Benckenstein, Norvell & Nathan, L.L.P.
550 Fannin Suite 200
P.O. Box 551
Beaumont, Texas 77704-0551

John Strawn
Cruse, Scott, Henderson & Allen, L.L.P.
2777 Allen Parkway I 7th Floor
Houston, Texas 77019-2133

Nick Baldo
Stevens, Baldo & Freeman, L.L.P.
550 Fannin, Suite 400 Beaumont, Texas 77701

Bill Wilson
Beirne, Maynard & Parsons, L.L.P.
Wells Fargo Bank Tower, 25th Floor 1300 Post Oak Boulevard
Houston, Texas 77056-3000

Troy A. Williams
Hays, McConn, Rice & Pickering 1
200 Smith Street
400 Two Houston Center Houston, Texas 77002

Susan E. Potts
Potts & Reilly, L.L.P.
401 West 15th Street, Suite 850
Austin, Texas 78701-1665

PFI Molding, Inc. c/o David Aguilar
8777 Tallyho Road # 200
Houston, Texas 77061

Colon Therapeutics Research Institute
c/o Jimmy John Girouard
2909 Main Avenue
Groves, Texas 77619
Gerald R. Flatten
Rienstra, Dowell & Flatten
595 Orleans Street, Suite 1007
Beaumont, Texas 77701-3020

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This article was revised on December 3, 2003.