In Re AstraZeneca Pharmaceuticals LP v. the State of Texas

ACCEPTED
15-25-00088-CV
FIFTEENTH COURT OF APPEALS
November 21, 2025 AUSTIN, TEXAS
8/18/2025 3:30 PM
No. 15-25-00088-CV CHRISTOPHER A. PRINE
CLERK
RECEIVED IN
15th COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE FIFTEENTH JUDICIAL DISTRICT 8/18/2025 3:30:28 PM
AUSTIN, TEXAS CHRISTOPHER A. PRINE
Clerk

IN RE: ASTRAZENECA PHARMACEUTICALS LP
Relator

Original Proceeding from the 71st Judicial District Court
in Harrison County, Texas
The Honorable Brad Morin, Presiding

SUR-REPLY IN FURTHER RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Samuel F. Baxter Mark Lanier
Jennifer L. Truelove Zeke DeRose
McKool Smith, P.C. Jonathan Wilkerson
104 East Houston, Suite 300 THE LANIER FIRM
Marshall, Texas 75670 10940 W. Sam Houston Pkwy N, Suite 100
(903) 923-9000 Houston, TX 77064
Fax: (903) 923-9099 (800) 723-3216
Fax: (713) 659-2204

Attorneys for Plaintiffs and Real-Parties-
in-Interest SCEF, LLC and Lynne Levin-
Guzman
TABLE OF AUTHORITIES

Page(s)

Cases

Balawajder v. Belanger,
2005 Tex. App. LEXIS 1654 (Tex. App.—Eastland, March 3, 2005, pet.
denied)................................................................................................................... 2

City of Austin v. L.S. Ranch, Ltd.,
970 S.W.2d 750 (Tex. App.—Austin 1998, no pet.) ............................................ 1

FDIC v. Lenk,
361 S.W.3d 602 (Tex. 2012) ................................................................................ 7

Fortinberry v. Freeway Lumber Co.,
453 S.W2d 849 (Tex. App.-Houston [1st Dist. 1970) .......................................... 4

In re Hardwick,
426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012, orig.
proceeding) ....................................................................................................... 2, 3

Harris County Appraisal Dist. v. O'Connor & Assocs.,
2006 Tex. App. LEXIS 9421 (Tex. App.—Houston [14th Dist.]
Oct. 31, 2006, appeal dismissed) .......................................................................... 1

In re Int’l Profit Assocs., Inc.,
274 S.W.3d 672 (Tex. 2009, orig. proceeding) (per curiam) ............................... 5

In re Liberty Cnty. Mut. Ins. Co.,
606 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding) ........................................................................................................... 2

Montelongo v. Abrea,
622 S.W.3d 290 (Tex. 2021) ................................................................................ 6

In re Rino-K&K Compression, Inc.,
656 S.W.3d 153 (Tex. App.—Eastland 2022, orig. proceeding) ......................... 4

In re Shire PLC,
633 S.W.3d 1 (Tex. App.—Texarkana 2021, orig. proceeding) .......................... 5

ii
In re Sanofi-Aventis U.S. LLC,
711 S.W.3d 732 (Tex. App.—15th Dist. 2025, orig. proceeding) ...................... 8

In re Travelers Prop. Cas. Co. of Am.,
485 S.W.3d 921 (Tex. App.—Dallas 2016, orig. proceeding) ............................. 2

In re Waste Mgmt. of Tex., Inc.,
392 S.W.3d 861 (Tex. App.—Texarkana 2013, orig. proceeding) ...................... 7

iii
Astra’s1 Reply boils down to three points. According to Astra, (i) even though

Plaintiffs’ operative pleading alleges extensive in-forum activities that meet the

THFPA’s venue provision, this Court must resolve Astra’s mandamus challenge by

looking at a superseded pleading; (ii) even though Astra purposefully waited 20

months to file its mandamus petition, that delay does not trigger laches; and (iii) even

though there are key factual differences between the cases, Sanofi is allegedly “on

all fours with this case” and dispositive here. None of this passes muster.

1. Astra’s assertion that the Second Amended Petition is irrelevant fails for

two reasons. First, under Rule 65, Plaintiffs’ previous venue allegations are

superseded and no longer part of the record. Astra cannot contest this and does not

even try. Nor does Astra seriously contest that, because the venue allegations in the

superseded pleading are no longer part of the record, the venue dispute Astra put

before this Court is now academic.2 It is thus beside the point that, notwithstanding

the filing of the Second Amended Petition, there may still be a “live [venue]

1
Terms defined in Plaintiffs’ Response carry the same meaning here. Unless
otherwise indicated, all emphases herein are supplied.
Harris County Appraisal Dist. v. O’Connor & Assocs., 2006 Tex. App.
2

LEXIS 9421, *9-10 (Tex. App.—Houston [14th Dist.] Oct. 31, 2006, appeal
dismissed) (dismissing as “moot” an appeal involving a “pleading that was no longer
‘live’”); City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 755 (Tex. App.—Austin
1998, no pet.) (holding that interlocutory appeal of denial of plea to jurisdiction
based on lack of controversy was rendered moot when the appellee amended the
petition to allege justiciable controversy).

1
4931-8137-5314
controversy between the parties”—concerning different facts. Reply at 18. If a venue

controversy remains, it is different from the one at issue here. And any controversy

that still exists should be resolved by the District Court (not this Court), based on

the current record (not a record that is now “ineffective”3).

Second, the three cases Astra cites to support its contrary position (Reply at

7-8) are inapt. Two of them do not involve amended pleadings;4 rather, they stand

for the unremarkable proposition that the record on appeal must mirror the record

presented below. While more analogous, Astra’s third case—Hardwick5—is

similarly distinguishable. Hardwick involved a dispute between a developer of oil

and gas reserves (Smith) and an individual (Hardwick) who had performed various

landman work for Smith. After Hardwick resigned his job, Smith filed suit in Harris

County. Hardwick filed a motion to transfer venue, arguing that, pursuant to two

distinct sections of the Civil Practice and Remedies Code, venue was mandatory

elsewhere—either in the county where Hardwick resided or any of the counties in

which the land underlying the parties’ dispute was located. The district court denied

Balawajder v. Belanger, 2005 Tex. App. LEXIS 1654, *7 (Tex. App.—
3

Eastland, March 3, 2005, pet. denied) (“An amended pleading . . . replaces all
previous pleadings, rendering the previous pleadings ineffective.”).
4
In re Liberty Cnty. Mut. Ins. Co., 606 S.W.3d 866, 874 (Tex. App.—Houston
[14th Dist.] 2020, orig. proceeding); In re Travelers Prop. Cas. Co. of Am., 485
S.W.3d 921, 924 (Tex. App.—Dallas 2016, orig. proceeding).
5
In re Hardwick, 426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012, orig.
proceeding).

2
4931-8137-5314
the venue motion, and Hardwick filed a mandamus petition. While the mandamus

petition was pending, Smith twice amended its petition and asserted an altogether

different theory of venue. The court of appeals declined to consider the amended

petitions, granted mandamus, and directed the district court to determine the county

where the suit should be transferred. Even if this Court were bound by Hardwick

(and it is not), there are two key factual distinctions that make it inapplicable here.

As an initial matter, in Hardwick, the plaintiff did not file suit in any of the

counties where it was statutorily required to file; rather, it filed suit in a court where

it had no right to be. Here, in contrast, the THFPA expressly authorizes suit in any

county where any part of the challenged conduct occurred, including Harrison

County. Furthermore, Hardwick did not involve a motion to transfer predicated on

the defendant’s denial of venue facts, as here, and the amendments the Hardwick

plaintiff undertook while mandamus was pending sought to assert a different theory

of venue. In contrast, the new allegations Plaintiffs added to the Second Amended

Petition demonstrate that the centerpiece of Astra’s 2023 venue motion—the

assertion that Astra conducts no relevant in-forum activities—was incorrect. At

bottom, Astra misstated its connections to Harrison County; refused to produce

venue discovery; and, having been caught red handed, now pretends that its actual

connections to Harrison County do not matter. This does not hold water. Plaintiffs

were within their rights to amend their pleading to conform their venue allegations

3
4931-8137-5314
with the discovery record, and Plaintiffs’ current venue allegations are now

uncontested.6 Consistent with Rule 65, the Court should now dismiss Astra’s

mandamus challenge because it presents an academic question calling for an

advisory opinion.

2. Astra’s assertion that laches is not triggered—despite the 20-month gap

between the venue ruling and this challenge—is incorrect. According to Astra,

because it has a “statutory” right to mandamus, laches does not apply. Reply at 12.

But none of Astra’s cases exempts venue rulings from laches. Indeed, the only case

Plaintiffs (and apparently Astra) have found that considered this issue—In re Rino-

K&K Compression, Inc., 656 S.W.3d 153, 161 (Tex. App.—Eastland 2022, orig.

proceeding)—makes clear that laches can apply to venue rulings.7 And there is no

reason to think that a statutorily-created right to mandamus is exempt from the

Supreme Court’s unqualified holding that “delaying the filing of a petition for writ

of mandamus relief may waive the right to mandamus unless the relator can justify

Astra did not file an Answer to the Second Amended Petition. Thus, for all
6

of Astra’s protestations (see Reply 9-11), Plaintiffs’ venue allegations are
uncontested. See Fortinberry v. Freeway Lumber Co., 453 S.W2d 849, 852 (Tex.
App.—Houston [1st Dist. 1970) (“It is our belief that if the account in the plaintiff’s
amended petition had substantially differed from that made a part of its original
petition, [the defendant’s] denial of the original account . . . would not have been
sufficient to destroy the probative force of the amended account.”).
7
As explained in the Response, the In re Rino-K&K court found that the
plaintiff’s challenge was not barred by laches because the plaintiff acted diligently.

4
4931-8137-5314
the delay.” In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009, orig.

proceeding) (per curiam).

Equally unpersuasive is Astra’s argument that, because it filed its challenge

more than 90 days prior to trial, laches does not apply. As Plaintiffs explained in the

Response, while Section 15.0642 requires mandamus relief to be sought before a

date certain, it does not create a license for Astra to “slumber on its rights”—for

years. Rather, Section 15.0642 merely provides a point of no return and cuts off

appellate relief if mandamus is not pursued before.

Astra’s attempt to explain away the 20-month delay is facially untenable.

Astra asserts that it acted “reasonabl[y]” because, when it lost the venue ruling 24

months ago, this Court “did not exist” and the court that would have heard the

challenge back then (the Sixth Court) “had recently issued In re Shire PLC, 633

S.W.3d 1 (Tex. App.—Texarkana 2021, orig. proceeding), suggesting mandamus

review in [THPFA] cases would be an inefficient use of both party and judicial

resources.” Reply at 16. It is not credible to assert that a defendant is excused from

its obligation to diligently pursue its appellate rights because it thinks it has no shot

on appeal. Tellingly, Shire has nothing to do with venue or any procedural issue

relevant here.

Finally, there is no merit to Astra’s attempts to minimize the prejudice

Plaintiffs will suffer from an eve-of-trial venue change. Putting aside the additional

5
4931-8137-5314
time and expenditures that will result from transfer, Plaintiffs have also explained

that a transfer to a venue located 300 miles away from Harrison County may

hamstring Plaintiffs’ trial proofs.8 Astra has no response to this point.

3. Astra reliance on Sanofi—and its assertion that Sanofi is “on all fours with

this case” (Reply at 1)—fails, for three distinct reasons.

First, unlike the Sanofi defendant, Astra did not contest below that its product

websites communicate “offers” to prescribers. See Response at 7, 25. In its Reply,

Astra tacitly concedes this but argues there is no waiver because, “[u]nder Texas

law, parties may waive issues, not arguments.” Reply at 5 (citing Montelongo v.

Abrea, 622 S.W.3d 290, 298 n.10 (Tex. 2021); emphasis in the original)). According

to Astra, because it challenged venue below, it is free to raise any venue arguments

here—even arguments that rely on facts it conceded below. Id. That is not the law.

Astra was free to argue below (just like Sanofi) that, as a factual matter, its product

websites did not convey offers to prescribers. Astra did not, instead focusing on a

different factual point (alleged lack of proof of access from Harrison County).

Indeed, during oral argument before the District Court, Astra argued that, to establish

venue through the websites, “all they would have had to do was to . . . have someone

Baxter Decl. ¶ 6 (noting that four of the six experts whose testimony
8

Plaintiffs expert to proffer at trail are based in or around Harrison County, that three
of them are practicing physicians whose ability to care for their patients will be
significantly impacted if the case is transferred, and that one or more of these experts
may not even be able to attend trial in Travis County).

6
4931-8137-5314
come in here and say I’ve accessed the website here in Harrison County and it’s

available.” MR227. Plaintiffs offered that proof below, and the Reply tacitly

concedes this. At bottom, Astra conceded a factual issue below, which it cannot walk

back here. See FDIC v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (“When a party fails

to preserve error in the trial court . . . , an appellate court may not consider the

unpreserved or waived issue.”). This is classic waiver.

Second, here, unlike in Sanofi, Plaintiffs produced evidence that Astra

distributed—within Harrison County—physical brochures that advertised the

challenged Free Nurse and Support Services and invited applications for these

services.9 While, under Sanofi, the brochure is not an “offer”—that is irrelevant.

Indisputably, the product brochure at issue advertises the free services Plaintiffs are

challenging and invites patients to apply for them. This in-forum activity is

indisputably “part” of the challenged conduct—and thus it suffices under the

TMFPA’s venue provision. And while Astra attempts to analogize (Reply at 6-7) to

one of the allegations this Court found insufficient in Sanofi—which concerned

9
In its Reply, Astra continues to urge that the District Court should not have
considered this evidence. Reply at 5. But Astra did not move to strike, nor did it ask
the District Court to rule on the objection it raised during the venue hearing.
“To preserve error for appellate review, a party must first present its complaint to
the trial court and obtain a ruling.” See In re Waste Mgmt. of Tex., Inc., 392 S.W.3d
861, 870 n.13 (Tex. App.—Texarkana 2013, orig. proceeding) (citing Tex. R. App.
P. 33.1).

7
4931-8137-5314
Sanofi representatives visiting providers—this fails. The reason why this Court

found the Sanofi plaintiff’s allegation concerning sales reps insufficient was because

the plaintiff there failed to provide the necessary “details of what allegedly occurred

at those meetings [between sales reps and providers] or how those meetings relate

to the allegations [at issue].” In re Sanofi-Aventis U.S. LLC,

711 S.W.3d 732, 739 (Tex. App.—15th Dist. 2025, orig. proceeding). The physical

brochures readily provide that detail because they advertise the free services

Plaintiffs are challenging.

Third, Astra’s position that Sanofi precludes remand for venue discovery is

incorrect. As Plaintiffs explained in their Response, at every turn, Plaintiffs’ actions

here distinguish this case from Sanofi. That is because Plaintiffs (i) served venue

discovery (MR168-80); (ii) expressly cross-moved for a continuance (MR160); (iii)

expressly opposed Astra’s motion for protective order (MR160); and (iv) obtained a

ruling denying that motion and authorizing venue discovery (SMR1).10 What’s

more, we now know precisely what venue discovery would have shown: that Astra’s

denial of Plaintiffs’ 2023 venue facts was baseless.

10
Compare Sanofi, 711 S.W.3d at 741 (“Here, there is no evidence in the
record that [the plaintiff] served discovery on Sanofi prior to the venue determination
or that [the plaintiff] obtained a ruling from the trial court on its continuance motion
or discovery request. It proceeded at the venue hearing without re-urging its
continuance motion or discovery request and without requesting a ruling.”).

8
4931-8137-5314
For the foregoing reasons, Astra’s petition for writ of mandamus should be

dismissed or denied.

9
4931-8137-5314
Dated: August 18, 2025 Respectfully submitted,

/s/ Sam Baxter /s/ Mark Lanier
Samuel F. Baxter (co-lead Mark Lanier (co-lead counsel)
counsel) Zeke DeRose
sbaxter@mckoolsmith.com Jonathan Wilkerson
Jennifer L. Truelove THE LANIER FIRM
jtruelove@mckoolsmith.com 10940 W. Sam Houston Pkwy N
MCKOOL SMITH P.C. Houston, TX 77064
104 East Houston, Suite 300 (800) 723-3216
Marshall, Texas 75670 Fax: (713) 659-2204
(903) 923-9000
Fax: (903) 923-9099

Attorneys for Plaintiffs and Real-
Parties-in-Interest SCEF, LLC and
Lynne Levin-Guzman

10
4931-8137-5314
CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and

foregoing document has been served on August 18, 2025 to counsel of record.

/s/ Samuel F. Baxter
Samuel F. Baxter

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2016, this Surreply in Further

Response to Petition for Writ of Mandamus contains 2,168 words, excluding the

portions of the brief exempt from the word count under Texas Rule of Appellate

Procedure 9.4(i)(1).

/s/ Samuel F. Baxter
Samuel F. Baxter

11
4931-8137-5314
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Envelope ID: 104513977
Filing Code Description: Motion
Filing Description: MOTION FOR LEAVE TO FILE SUR-REPLY IN
FURTHER RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Status as of 8/18/2025 3:36 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Kennon L.Wooten kwooten@scottdoug.com 8/18/2025 3:30:28 PM SENT

Angela Goldberg agoldberg@scottdoug.com 8/18/2025 3:30:28 PM SENT

Jonathan Wilkerson 24050162 jonathan.wilkerson@lanierlawfirm.com 8/18/2025 3:30:28 PM SENT

Melissa Smith 24001351 melissa@gillamsmithlaw.com 8/18/2025 3:30:28 PM SENT

William Peterson 24065901 willpete@gmail.com 8/18/2025 3:30:28 PM SENT

Samuel Baxter 1938000 sbaxter@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

Brian McBride 24002554 scott.mcbride@morganlewis.com 8/18/2025 3:30:28 PM SENT

Zeke DeRose 24057421 zeke.derose@lanierlawfirm.com 8/18/2025 3:30:28 PM SENT

Jennifer Truelove 24012906 jtruelove@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

Alex Brown 24026964 alex.brown@lanierlawfirm.com 8/18/2025 3:30:28 PM SENT

Lynne Kurtz-Citrin 24081425 lynne.kurtz-citrin@oag.texas.gov 8/18/2025 3:30:28 PM SENT

Jonathan Bonilla 24073939 Jonathan.Bonilla@hhs.texas.gov 8/18/2025 3:30:28 PM SENT

W. Mark Lanier 11934600 jrm@lanierlawfirm.com 8/18/2025 3:30:28 PM SENT

Heidi Rasmussen 24090345 heidi.rasmussen@morganlewis.com 8/18/2025 3:30:28 PM SENT

Nadia Burns 24041176 nadia.burns@oag.texas.gov 8/18/2025 3:30:28 PM SENT

Ruth Adams radams@scottdoug.com 8/18/2025 3:30:28 PM SENT

Paige Cheung 24116193 paige.cheung@oag.texas.gov 8/18/2025 3:30:28 PM SENT

Steve McConnico smcconnico@scottdoug.com 8/18/2025 3:30:28 PM SENT

Jordan Kadjar jkadjar@scottdoug.com 8/18/2025 3:30:28 PM SENT

John Dodds john.dodds@morganlewis.com 8/18/2025 3:30:28 PM SENT

Erica Jaffe erica.jaffe@morganlewis.com 8/18/2025 3:30:28 PM SENT

W. Mark Lanier WML@LanierLawFirm.com 8/18/2025 3:30:28 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Envelope ID: 104513977
Filing Code Description: Motion
Filing Description: MOTION FOR LEAVE TO FILE SUR-REPLY IN
FURTHER RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Status as of 8/18/2025 3:36 PM CST

Case Contacts

W. Mark Lanier WML@LanierLawFirm.com 8/18/2025 3:30:28 PM SENT

Vivian Egbu vivian.egbu@oag.texas.gov 8/18/2025 3:30:28 PM SENT

Lauren Sibley lauren.sibley@oag.texas.gov 8/18/2025 3:30:28 PM SENT

Steven Strauss steven.strauss@morganlewis.com 8/18/2025 3:30:28 PM SENT

joel leach jleach@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

denise lopez dlopez@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

Cynthia Lu cynthia.lu@oag.texas.gov 8/18/2025 3:30:28 PM ERROR

Angel Devine adevine@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

Radu Lelutiu rlelutiu@mckoolsmith.com 8/18/2025 3:30:28 PM SENT

Ryan McCarthy ryan.mccarthy@morganlewis.com 8/18/2025 3:30:28 PM SENT

Bradie Williams bradie.williams@morganlewis.com 8/18/2025 3:30:28 PM SENT

Joshua Morrow josh@lkcfirm.com 8/18/2025 3:30:28 PM SENT

Scott Keller scott@lkcfirm.com 8/18/2025 3:30:28 PM SENT

Andrew Davis andrew@lkcfirm.com 8/18/2025 3:30:28 PM SENT

Cathy Hodges catherine.hodges@aporter.com 8/18/2025 3:30:28 PM SENT