in Re Jourdanton Hospital Corporation D/B/A South Texas Regional Medical Center ( 2015 )

NO. 14-1080
IN THE
SUPREME COURT OF TEXAS
•• «-•"
IN RE JOURDANTON HOSPITAL CORPORATION D/B/A SOUTH *" &
TEXAS REGIONAL MEDICAL CENTER,
RELATOR
Original Proceeding from the
Fourth Court of Appeals at San Antonio, Texas
Cause No. 04-14-00817-CV
RELATOR'S OPPOSED EMERGENCY MOTION
TO STAY UNDERLYING PROCEEDINGS
Monte F. James
State Bar No. 10547520
mjames@jw.com
Joshua A. Romero
State Bar No. 24046754
jromero@jw.com
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 - facsimile
COUNSEL FOR RELATOR
EMERGENCY RELIEF REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Defendant/Relator:
Jourdanton Hospital Corporation d/b/a South Texas Regional Medical Center
Appellate Counsel and Trial Counsel:
Monte F. James
State Bar No. 10547520
Mjames@jw.com
Joshua A. Romero
State Bar No. 224046754
Jromero@jw.com
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: (512) 236-2000
Facsimile: (512) 236-2002
Co-Defendant:
Edward Blackmon, Jr., M.D.
Trial Counsel:
John S. Serpe
State Bar No. 18037400
J serpe@serpcjones.com
ChadJ. Castille
State Bar No. 24031920
Ccastille@serpejones.com
Ryan Clement
State Bar No. 24036371
Rclemcnt@serpejones.com
SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC
American Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
u
Plaintiff/Real Party in Interest:
Stacy Smith, individually and as next friend of Charles Lewis Smith
Trial and Appellate Counsel:
Marynell Maloney
State Bar No. 12883200
MaryneU@marynellmaloneylawfirm.com
Michelle Maloney
State Bar No. 24069099
Michelle@marynellmaloncylawfirm.com
MARYNELL MALONEY LAW FIRM, PLLC
115 E. Travis, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 212-8000
Facsimile: (210) 212-8385
and
Ryan Krebs
State Bar No. 00792088
Ryan@ryankrebsmdjd.com
LAW OFFICES OF RYAN KREBS
805 West 10lh Street, Suite 300
Austin, Texas 78701
Telephone: (512) 478-2072
Facsimile: (512) 494-0420
Respondent in the Court of Appeals:
Hon. Donna S. Rayes
81st District Court at Atascosa County, Texas
#1 Courthouse Circle Dr., Suite 206
Jourdanton, Texas 78026
Telephone: (830) 769-3750
Facsimile: (830) 769-2841
Dcourts81_218@yahoo.com
Respondent in the Supreme Court:
Fourth Court of Appeals at San Antonio
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037
Keith H. Hottle, Clerk of Court
Telephone: (210) 335-2635
Facsimile: (210) 335-2762
COA4noticingservice@txcourts.gov
IV
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS v
TABLE OF AUTHORITIES vi
EXECUTIVE SUMMARY 1
FACTUAL BACKGROUND 2
ARGUMENT 4
A. Temporary Relief Is Permitted Under Texas Rule of Appellate
Procedure 52.10 4
B. Temporary Relief Is Necessary To Prevent Prejudice To STRMC
Pending Mandamus Review, Preserve This Court's Ability to
Fashion Effective Relief, and Avoid Waste of Resources 5
PRAYER 6
RULE 9.4 CERTIFICATE OF COMPLIANCE 7
RULE 52.10(a) CERTIFICATE OF CONFERENCE AND COMPLIANCE 8
CERTIFICATE OF SERVICE 9
APPENDICES
1. A true and correct copy of the Docket Control Order.
2. A true and correct copy of various correspondence between the parties'
counsel.
TABLE OF AUTHORITIES
Page(s)
Cases
In re Bates,
429 S.W.3d 47 (Tex. App.—Houston [lstDist] 2014, no pet) 4
In re Kelleber,
999 S.W.2d 51 (Tex. App.—AmariUo 1999, no pet.) 4
In re Reed,
901 S.W.2d 604 (Tex. App.—San Antonio 1995, no writ) 4
Republican Party of Texas v. Die
924 S.W.2d 932 {Tex. 1996) 5
Other Authorities
Tex. R. App. P. 10.3(a)(3) 1
Tex. R. App. P. 52.10 1,4
VI
TO THE HONORABLE SUPREME COURT OF TEXAS:
Pursuant to Texas Rules of Appellate Procedure 10.3(a)(3) and 52.10(a), Relator
Jourdanton Hospital Corporation d/b/a Soudi Texas Regional Medical Center
("STRMC") files this Opposed Emergency Motion to Stay the Underlying
Proceedings, and requests the Court to temporarily stay all underlying proceedings in
the trial court until this Court rules on STRMC's Petition for Writ of Mandamus
("Petition").1
EXECUTIVE SUMMARY
In this medical malpractice case, the Court is currendy considering whether
Texas Rule of Civil Procedure 204 permits a defendant to conduct an independent
medical examination of a plaintiff when (1) the plaintiff has designated numerous
experts to testify about his medical condition, and (2) the plaintiffs own experts
intend to conduct the same testing requested by the defendant.
In light of the Court's June 5, 2015 request for briefing on the merits and the
trial court's scheduling order, STRMC seeks to stay the underlying proceedings
pending the Court's mandamus review. The stay is requested in order to preserve
judicial resources and the parties' resources. As set forth below, the plaintiff has
continued to demand that STRMC promptly depose his experts even though this
1 The case pending before the trial court is captioned as follows: Stacy Smith, Individually
and As Next Friendfor Charles Lewis Smith, a Minor vs. Jourdanton Hospital Corporation d/b/a South Texas
Regional Medical Center and Edward Barton Blackmon,]r. M.D., Cause No. 12-12-1063-CVA, In the 81st
Judicial District Court of Atascosa County, Texas.
1
Court has not issued a ruling, which means STRMC may need to depose those experts
twice—once before the Court's ruling and once after the ruling (if mandamus relief is
granted). And if STRMC refuses to undertake expert depositions immediately, and
assuming the Court issues a ruling two months after the merits briefing deadline of
August 11, 2015, the parties will be left to complete the requested examination,
analyze the test results, and take 23 expert depositions in the span of two months under the
trial court's current scheduling order. Therefore, a stay is appropriate to maintain the
status quo pending the Court's resolution of the Petition.
FACTUAL BACKGROUND
The trial court denied STRMC's motion to examine the plaintiff on October
27, 2014, finding a "unique situation" because the plaintiff is a minor. MR Tab 2, p. 1;
MR Tab 7, p. 17. On December 10, 2014, the Fourth Court of Appeals summarily
denied STRMC's petition for writ of mandamus without opinion. MR Tab 8, p. 1.
STRMC filed its Petition with this Court on January 14, 2015, and the Court
requested a response from plaintiff on February 27, 2015. The mandamus briefing
was completed on April 24, 2015. Recently, on June 5, 2015, the Court requested
briefing on the merits, with final briefing due by August 11, 2015.
Plaintiff has continued to insist that STRMC prompdy depose his eight experts
(three of which are located outside Texas), despite the fact that die Petition remains
pending. See Appendix 2.2 STRMC has resisted this demand because conducting the
depositions before the Court's ruling may necessitate re-deposing those experts—
undoubtedly an expensive and time-consuming endeavor.3 If, on the other hand,
STRMC postpones the expert depositions, and in light of this Court's recent request
for merits briefing and deadline of August 11, 2015, the parties will be in the
untenable position of conducting the requested examination (if permitted), analyzing
the test results, and deposing the parties' 23 expert witnesses in the span of two months
under the current scheduling order.4 This, of course, conservatively assumes that die
Court will issue a ruling two months after merits briefing. If the ruling does not issue
until four months after merits briefing, the current discovery deadline of December
16, 2015, will have expired. JV429 S.W.3d 47, 53 (Tex. App.—Houston [1st Dist.] 2014, no pet); see also
TEX.R.APP.P. 52.10.
The purpose of Rule 52.10 is to maintain the status quo and preserve an
appellate court's ability to fashion effective relief. See In re Kelkber, 999 S.W.2d 51, 52
(Tex. App.—Amarillo 1999, no pet.) ("That is, the power of the court to grant
emergency measure is ancillary to its power to adjudicate a pending petition for
extraordinary relief. Simply put, Rule 52.10 exists to afford the court opportunity to
address the dispute encompassed within a petition for mandamus (for instance) by
maintaining the status quo until it can address that dispute."); /// re Reed, 901 S.W.2d
604, 609 (Tex. App.—San Antonio 1995, no writ) (involving predecessor to Rule
52.10). Temporary relief, moreover, should be granted in instances where a relator
will suffer prejudice pending mandamus renew, impairing an appellate court's ability
to provide full and effective relief. See Republican Party of Texas v. Diets^ 924 S.W.2d
932, 933 (Tex. 1996). As set forth below, that standard is amply met here.
B. Temporary Relief Is Necessary To Prevent Prejudice To STRMC
Pending Mandamus Review, Preserve This Court's Ability to
Fashion Effective Relief, and Avoid Waste of Resources.
As a threshold matter, a stay is necessary to prevent the continued waste of
judicial resources, as well as the resources of the parties. For example, plaintiff has
continued to demand that STRMC prompdy proceed with the depositions of
plaintiffs testifying experts, even though the Court has not ruled on the Petition. See
Appendix 2. This demand presents a situation in which STRMC may have to depose
plaintiffs experts now, and then re-depose those same experts, three of which are
located outside of Texas, if the Court permits the requested examination. This is
undoubtedly a costly and time-consuming undertaking—and an unnecessary exercise
if a stay is granted. On the other hand, if STRMC waits to conduct depositions until
the Court issues a ruling (and assuming conservatively that a ruling issues two months
after completion of merits briefing), the parties would have to conduct the requested
examination, analyze the test results, and take 23 depositions in the span of two months
under the current scheduling order. And if the Court's ruling issues four mondis after
the completion of merits briefing, the current discovery deadline will have expired. See
Appendix 1. Accordingly, a stay is warranted.
Furthermore, in the absence of a stay, the trial court will very likely have to
address discovery disputes related to the experts and their depositions that will
invariably arise again (in some form) in the second depositions.5 This would cause an
unnecessary waste of judicial resources. Indeed, it is indisputable that the Court's
ruling on STRMC's Petition will significandy influence the course and substance of
this entire case, including the expert depositions (regardless of how the Court rules).
And most, if not all, experts deposed during the Court's mandamus review would have
to be re-deposed after the Court's mandamus review if relief is granted. Aside from
the extraordinarily prohibitive expense of such an endeavor, the futile exercise would
almost assuredly result in the need for significant court time to resolve otherwise
unnecessary discovery disputes.
PRAYER
Relator South Texas Regional Medical Center respectfully requests the Court to
stay all underlying proceedings in the trial court until the Court rules on STRMC's
Petition for Writ of Mandamus, and for all such other and further relief to which it
may be jusdy entided.
5 As one example, plaintiff has recently filed a Motion To Strike and Motion to
Exclude Defendants' Expert Witnesses.
Respectfully submitted,
I si Monte F. fames
Monte F. James
State Bar No. 10547520
mj ames@jw. com
Joshua A. Romero
State Bar No. 24046754
jromero@jw.com
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: 512-236-2000
Facsimile: 512-236-2002
ATTORNEYS FOR RELATOR
JOURDANTON HOSPITAL
CORPORATION D/B/A SOUTH
TEXAS REGIONAL MEDICAL
CENTER
RULE 9.4 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface (Garamond) no smaller
than 14-point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), because it contains 1,272 words,
excluding any parts exempted by TEX. R. App. P. 9.4(i)(l).
Isi Joshua A. Romero
Joshua A. Romero
7
RULE 52.10 CERTIFICATE OF CONFERENCE AND COMPLIANCE
On June 10, 2015,1 conferred with Michelle Maloney and Ryan Krebs, counsel
for Real Parties in Interest, regarding the merits of this Motion via email. On June 11,
2015, Ms. Maloney stated on behalf of Real Parties in Interest that this Motion is
opposed. I certify that I have notified counsel for Real Parties in Interest, Michelle
Maloney and Ryan Krebs, by expedited means via email concerning the filing of the
foregoing Emergency Motion to Stay Underlying Proceedings on this 10th day of
June, 2015. This Motion is not opposed by Defendant Edward Blackmon, M.D.
I si Joshua A. Romero
Joshua A. Romero
8
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was served on the following counsel for
Real Part}7 in Interest via electronic service and on Respondents via certified mail,
return receipt requested, on this 11th day ofJune, 2015:
Respondents:
Keith H. Hottle, Clerk of Court
Fourth Court of Appeals at San Antonio
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037
Hon. Donna S. Rayes
81st District Court at Atascosa County, Texas
#1 Courthouse Circle Dr., Suite 206
Jourdanton, Texas 78026
Telephone: (830) 769-3750
Facsimile: (830) 769-2841
Dcourts81_218@yahoo.com
Counsel for Real Party in Interest Stacy Smith:
Marynell Maloncy
Michelle Maloney
MARYNELL MALONEY LAW FIRM, PLLC
115 E. Travis, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 212-8000
Facsimile: (210) 212-8385
Ryan Krebs
LAW OFFICES OF RYAN KREBS
805 West 10lh Street, Suite 300
Austin, Texas 78701
Telephone: (512) 478-2072
Facsimile: (512) 494-0420
Counsel for Defendant Edward Blackmon, Jr., M.D.:
John S. Serpe
ChadJ. Castillc
Ryan Clement
SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC
American Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Isi loshua A.. Romero
Joshua A. Romero
10
NO. 14-1080
IN THE
SUPREME COURT OF TEXAS
IN RE JOURDANTON HOSPITAL CORPORATION D/B/A SOUTH
TEXAS REGIONAL MEDICAL CENTER,
RELATOR
APPENDIX TO
RELATOR'S OPPOSED EMERGENCY MOTION TO STAY
UNDERLYING PROCEEDINGS
1. A true and correct copy of the Docket Control Order.
2. A true and correct copy of various correspondence between the parties'
counsel.
11
13553687v.5
Appendix 1
03/iMar. 5. 201!> 8:39AM22362oo2 • No. 9788 P. l)2/oo3
Caw* NO. 12.12-1063-CVA
IN THfc DISTRICT COURT OF
VS. COUNTY, TEXAS
JmidmWo Boiplul CononUan id. for beirlnj or submission M IblJowi:
Olipoi|llve motloni or pieu subject l» tft tmerlooulory tppal must be set by Oils ditt.
Svmmeiy Judgfneol mcUnw not subject to *n Inteilooutory.eppttl mart be set by this dete.
Rule 166u(i)>ao«ioniBitiy not be let before Ihll d»te. '
7. CRALUtNGEa TO EXPERf TESTIMONY. All motions to otoludstKibnony md evidence
ehdlenget lo expert testimony must be Otod by U»k date, unless emended by leave of eoort.
1-11-16 PLKADINCS. All imwdmeoisind supplements must be filed bythk dele. ThU order does not
8.
PweluUe prompt BlfngofpleeiJIngidireotlyitsjionslvetoiihj'thBely filed pletdlagu
PWm!tLlLCONreRENCTd*()D0C1(WCALUTWlhJlbTtp*»
(«) aspects oftrial Wllh the court on tWi dslc All hearings begin et ?:00 wn., unless specified otherwise
by the courl Failure to appear will btgrmindi fordlsmtsaal for want of prosecution.
TRIAL. ' •
Jury Trial Requested? Date Paid:
TypeotCese
Esrimiied lenftH orTrUI
MTORNEyTOR. PLA1NTIFP
Addrcic:
B05W, IQth Street, Sullc 300 U ad
Amtln.TX 78701
Phone: 7<>->\ utt. Phoha; *SrY 2
Fax: Fax! 5/L ^4
Appendix 2
Romero, Josh
From: Michelle Maioney
Sent Thursday, June 04, 2015 10:50 AM
To: Romero, Josh; Ryan Krebs (ryan@ryankrebsmdjd.com) (ryan@ryankrebsmdjd.com)
Cc: Allie Brown; Samantha Booker; Wyman, Michelle; Ryan Clement; Chad Castille; James,
Monte; Celeste Malaise
Subject: RE: Smith v. STRMC and Blackmon
Hi Josh,
Please do get us dates to run by our experts. Our opinion is that you're discovering our experts - it has absolutely nothing
to do with whether or not you get an exam.
Thanks,
Michelle
Michelle M. Maioney
Maryneli Maioney Law l-irm. IJLLC
115 Hast Travis St.. Stc. 1800
San Antonio, Texas 78205
T: 210.212.8000
F: 210.212.8.185
michelle@marvnellmalonevlawfirm.com
JT Please consider the environment before printing this cmnil Think green...
This communication contains confidential information intended for the use of the individual or entity to whom it is addressed, if the reader or this
message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any
dissemination, distribution, or copying of this communication is strictly prohibited. Any use, dissemination, forwarding, printing, or copying of this
email without consent of the originator is strictly prohibited, Ifyou have received this email in error, please immediately notify Maryneli Maioney
Law Firm, PLLC by telephone at 210-212-8000.
From: Romero, Josh [mailto:Jromero@Jw.com]
Sent: Thursday, June 04, 2015 10:12 AM
To: Michelle Maioney; Ryan Krebs (ryan@ryankrebsmdjd.com) (ryan@ryankrebsmdjd.com)
Cc: Allie Brown; Samantha Booker; Wyman, Michelle; Ryan Clement; Chad Castille; James, Monte; Celeste Malaise
Subject: RE: Smith v. STRMC and Blackmon
Michelle—
We can provide you dates, but the problem is the pending Texas Supreme Court case. If we depose the experts before
the decision (and the decision permits the requested examination), we would need to depose your experts again. We
are trying to avoid deposing your experts twice. What are your thoughts on this?
Thanks,
Josh
From: Michelle Maioney fmailto:mlchelle@marynellmalonevlawflrm.com1
Sent: Thursday, June 04, 2015 10:09 AM
l
To: Romero, Josh; Ryan Krebs (ryan®ryankrebsmdjd.com) (ryan@ryankrebsmdid.com)
Cc: Allie Brown; Samantha Booker; Wyman, Michelle; Ryan Clement; Chad Castille; James, Monte; Celeste Malaise
Subject: RE: Smith v. STRMC and Blackmon
Importance: High
Josh and Ryan -1 already emailed on this April 23rd but I follow up again.
Please immediately let me know your dates of availability to complete the depositions of Plaintiffs experts as requested
below. Rather than getting dates from my experts that prove unworkable for either one of you, and then having to go back
to my experts with other dates, I would rather present them with dates that all counsel are already available. Since we'll
have to travel out of Texas for Bennetts, Cokely, and Rice, I would prefer to schedule these depos first and then schedule
Hunter (Houston) and Nelson (Austin), and then Trevino and Wegner to take place in San Antonio.
Thanks,
Michelle
Michelle M. MhIoiicv
Maryncll Maloney Law firm. PIJ.C
115 East Travis Si., Ste. 1800
San Antonio. Texas 78205
T: 210.212.8000
I": 210.212.8385
m ichel lefoimarvne I Imaloney lawfirm .com
1 Please consider the environment before priming this email Think green .
This communication contains confidential information intended for the use of the individual or entity to whom it is addressed. If the reader of this
message is not the intended recipient, or the employee or agent responsible lo deliver it to the intended recipient, you are hereby notified that any
disseminaiion, distribution, or copying of this communication is strictly prohibited. Any use, dissemination, forwarding, printing, or copying of this
email without consent of the originator is strictly prohibited, If you have received this email in error, please immediately notify Maryncll Mnloney
Low Finn. IU.I.C by telephone at 210-212-8000.
115 East Travis St.. Ste. 1800
San Antonio, Texas 78205
T: 210.212.8000
F: 210.212.8385
michelle@marvnellmalonevlawfiiTn.com
l Please consider die environment befote printing this email. Think green ..
Tliis communication contains confidential information intended for the use ofthc individual or entity to whom it is addressed. If the reader of this
message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any
dissemination, distribution, or copying of this communication is strictly prohibited. Any use. dissemination, forwnrding, printing, or copying of this
email without consent of the originator is strictly prohibited, If you have received this email in error, please immediately notify Marynell Maloney
Law Firm, PLLC by telephone at 210-212-8000.
From: Michelle Maloney
Sent: Thursday, April 23, 2015 3:56 PM
To: 'Romero, Josh'; Ryan Krebs frvancarvankrebsmdtd.com) fryanairyankrebsmdid.com)
Cc: Allie Brown; Samantha Booker; Wyman, Michelle; Ryan Clement; Chad Castille; James, Monte; Celeste Malaise
Subject: RE: Smith v. STRMC and Blackmon
Importance: High
Josh and Ryan,
Please let me know your dates of availability to complete the depositions of Plaintiffs experts as requested below. Rather
than getting dates from my experts that prove unworkable for cither one of you, and then having to go back to my experts
with other dates, I would rather present them with dates that all counsel are already available. Since we'll have to travel
out of Texas for Bennetts, Cokely, and Rice, I would prefer to schedule these depos first and then schedule Hunter
(Houston) and Nelson (Austin), and then Trevino and Wegner to take place in San Antonio.
Thanks,
Michelle
Michelle M. Maloney
Marynell Maloney Law Firm. PLLC
115 East Travis St.. Ste. 1800
San Antonio, Texas 78205
T: 210.212.8000
F: 210.212.8385
micheHe@marvnellmalonevlawfirm.com
JT Please consider Ihc environment bcfuie priming ihis email. Think green..
This communication contains confidential infonnation intended for the use ofthc individual or entity to whom it is addressed. If the reader of this
message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any
dissemination, distribution, or copying of this communication is strictly prohibiled. Any use. disscminntion, forwarding, priniing, or copying of this
email without consent of the originator is strictly prohibited, If you have received this emuil in error, please immediately notify Marynell Maloney
Law Firm, PLLC by telephone at 210-212-8000.
From: Romero, Josh rmallto:JromerogBiw.com1
Sent: Thursday, April 02, 2015 3:04 PM
To: Michelle Maloney; Ryan Krebs frvan@irvankrebsmdid.com) (ryan(3)ryankrebsmdid.com)
Cc: Allie Brown; Samantha Booker; Wyman, Michelle; Ryan Clement; Chad Castille; James, Monte; Celeste Malaise
Subject: RE: Smith v. STRMC and Blackmon