New filing: ME Andrews isn't county 'employee,' not protected by

New filing: ME Andrews isn't county employee, not protected by gov't immunity

Posted:
LUBBOCK COUNTY, Texas -

Attorneys for a grandmother claiming the Lubbock County Medical Examiner's office "dismembered" a child argued Chief Medical Examiner Sam Andrews is not technically an employee of Lubbock County and thus not protected from individual suit.  This response was filed Monday in a Lubbock district court.

Attorneys for Rebecca Ortiz targeted Andrews, Evan Matshes, and the companies they own -- National Autopsy Assay Group and NAAG Pathology Labs -- in a lawsuit claiming Andrews ordered a pathologist to perform an overly extensive and medically unnecessary autopsy on Elaina Castilleja last fall. Andrews has repeatedly claimed he's immune to suit because he's an employee of Lubbock County and can't be held personally liable for performing his duties as medical examiner, instead suggesting Ortiz would have to sue Lubbock County to resolve her claims.

The new filing, a response to Andrews' answer to Ortiz's lawsuit, disputes whether Andrews is actually an employee of Lubbock County. It details the arrangements between Andrews, NAAG, NAAG Pathology Labs, and Lubbock County, indicating the employment arrangement lists the two companies and Andrews as "contractors" -- which Texas statute indicates are not covered as "employees."

... a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the government unit does not have the legal right to control.

Texas Civil Practices & Remedy Code §101.001(2)

The lawsuit indicates Andrews is thrice removed from being an employee of Lubbock County, since he's employed by NAAG, which is contracted by NAAG Pathology Labs, which is contracted to Lubbock County. The suit indicates this does not extend "employee" status, or protection from suit.

Further, the suit references NAAG Pathology Labs' contract with Lubbock County, showing a portion reading "Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties."

On top of disputing Andrews' position as an "employee" of Lubbock County, the suit also claims Andrews' conduct is ultra vires, or "beyond the powers," constituting an individual action that doesn't fall under his purview of chief medical examiner. The suit claims Andrews' instructions in Castilleja's autopsy were outside the scope of his employment and not forensically justified.

Ortiz claims Andrews, Matshes, and NAAG have established a systematic practice of harvesting tissue and organs from autopsy subjects without justification, using them to create a "tissue bank" in San Diego to further Matshes's research interests and goals. Ortiz claims Castilleja's brain, eyes, spine, heart, and lungs were "harvested" as part of that practice. The filing indicates none of that falls under any task lawfully assigned to Andrews, and outside of his contract.

In his responses to questions submitted by Ortiz's attorneys, submitted in early May, Andrews acknowledges Castilleja's remains were still preserved at NAAG's labs in San Diego. Andrews claimed the organs were being preserved for law enforcement use, as well as "pathological examination and documentation." Castilleja's death is blamed on an injury she suffered in 2008 from "criminal trauma" before Ortiz adopted her.

NAAG Pathology Labs notified Lubbock County Judge Curtis Parrish in May the company had no intention to sign a new contract, citing "personal and political agendas" making it difficult for the office to function or recruit pathologists.. The two parties signed a one-year agreement last fall.

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