in Re Valero Refining-Texas, L.P. ( 2015 )

ACCEPTED
01-15-00566-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/27/2015 3:27:53 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00566-CV
FILED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
8/27/2015 3:27:53 PM
FIRST COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
AT HOUSTON, TEXAS
___________________________________________________________
IN RE VALERO REFINING – TEXAS, L.P.,
___________________________________________________________
Original Proceeding arising from Cause No. 12CV1541, in the
212th District Court of Galveston County, Texas
___________________________________________________________
REAL PARTY IN INTEREST’S
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
___________________________________________________________
SIMPSON, P.C.
Iain G. Simpson
State Bar No. 00791667
1333 Heights Blvd., Suite 102
Houston, Texas 77008
(281) 989-0742
(281) 596-6960 – fax
iain@simpsonpc.com
APPELLATE COUNSEL FOR
REAL PARTIES IN INTEREST
VERNON FOX AND MIKKI FOX
ORAL ARGUMENT CONDITIONALLY REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Real Parties in Interest: Counsel for Real Parties in Interest:
Vernon Fox and Mikki Fox Alton C. Todd
THE LAW FIRM OF ALTON C. TODD
312 S. Friendswood Drive
Friendswood, Texas 77546
281-992-8633
281-648-8633 – facsimile
TRIAL COUNSEL
Iain G. Simpson
SIMPSON, P.C.
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
281-989-0742
281-596-6960 – facsimile
APPELLATE COUNSEL
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................... ii
INDEX OF AUTHORITIES..............................................................................vi
STATEMENT REGARDING ORAL ARGUMENT.................................... ix
RESPONSIVE ISSUES PRESENTED ............................................................. 1
STATEMENT OF FACTS .................................................................................. 1
SUMMARY OF THE ARGUMENT ................................................................ 7
ARGUMENT ...................................................................................................... 10
The Standard of Review ........................................................................ 10
Responsive Issue One ............................................................................ 11
Mandamus cannot issue against a successor judge for her
predecessor’s order. Valero attacks the wrong order and
asks for the wrong relief. Valero’s Petition must be denied.
A. Judge Griffin’s Order for new trial is no longer at
issue. ...................................................................................... 12
B. Judge Grady’s Order does not state her basis,
and Valero never asked Judge Grady to do so. ............... 12
Responsive Issue Two ........................................................................... 14
Judge Grady’s reasons for declining to reconsider Judge
Griffin’s order may include considerations of judicial
consistency and continuity within the case and her court, as
well as recognition that her predecessor was actually present
for trial and able to view witness testimony. Such
iii
considerations are anything but unguided and unprincipled.
They cannot be an abuse of discretion.
A. Consistency of decisions within a single case is a
valid judicial concern. ........................................................ 14
B. Decision of the case at bar and the trial court’s
order for new trial rested upon the credibility of
many witnesses, none of whose testimony Judge
Grady was able to hear in person. ................................... 15
C. Both considerations of consistency and lack of
opportunity to weigh the credibility of witnesses
may constitute good cause for allow Fox’s new
trial to proceed. ................................................................... 17
Responsive Issue Three ......................................................................... 18
Should the Court decide to consider it, Judge Griffin’s Order
was supported by his own observation of all witnesses
during testimony in open court and his evaluation of their
credibility.
A. Valero’s experts never testified that Fox’s experts
were wrong. .......................................................................... 18
B. Fox presented evidence that, even if subjective, is
still evidence. ....................................................................... 19
Responsive Issue Four ........................................................................... 21
Evidence showed that Fox suffered physical injury from
chemical exposure that is more than just mental anguish and
that demonstrated both specific and general causation.
iv
A. Valero mischaracterizes and minimizes the
nature of Fox’s injury in an effort to make its
point. ..................................................................................... 21
B. Valero never actually argues that Fox failed to
show general causation...................................................... 22
C. Fox presented evidence of specific exposure to
particular toxins. ................................................................ 23
CONCLUSION .................................................................................................. 24
PRAYER .............................................................................................................. 25
CERTIFICATE OF COMPLIANCE ............................................................... 26
CERTIFICATE OF SERVICE .......................................................................... 27
v
INDEX OF AUTHORITIES
Cases
Borg-Warner v. Flores,
232 S.W.3d 765 (Tex. 2007)................................................................... 23
Coastal Tankships, U.S.A., Inc. v. Anderson,
87 S.W.3d 591 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied). ........................................................................................... 22
Downer v. Aquamarine Operators,
701 S.W.2d 238 (Tex. 1985)................................................................... 10
E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W.2d 549 (Tex. 1995)................................................................... 19
Holloway v. Fifth Court of Appeals,
767 S.W.2d 680 (Tex. 1989)............................................................. 10, 13
In re Anna C. Smith,
332 S.W.3d 704 (Tex. App.—Texarkana 2011,
orig. proceeding). ................................................................................. 20
In re Baylor Med. Ctr. at Garland (“Baylor I”),
280 S.W.3d 227 (Tex. 2008)................................................................... 11
In re Baylor Med. Ctr. at Garland (“Baylor II”),
289 S.W.3d 859 (Tex. 2009)................................................................... 12
In re Columbia Med. Ctr. of Las Colinas,
290 S.W.3d 204 (Tex. 2007)............................................................. 12, 17
In re Cook,
356 S.W.3d 493 (Tex. 2011)............................................................. 12, 13
vi
In re Prudential Ins.,
148 S.W.3d 124 (Tex. 2003)................................................................... 10
In re Schmitz,
285 S.W.3d 451 (Tex. 2009)................................................................... 11
In re Toyota Motor Sales,
407 S.W.3d 746 (Tex. 2014)................................................................... 20
In re United Scaffolding,
377 S.W.3d 685 (Tex. 2012)............................................................. 13, 17
Paradigm Oil v. Retamco Operating,
372 S.W.d 177 (Tex. 2012)..................................................................... 15
Slaughter v. Abilene State School,
561 S.W.2d 789 (Tex. 1977)................................................................... 19
Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996)................................................................... 10
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992)................................................................... 10
Rules
TEX. R. APP. P. 7.2 ......................................................................................... 7, 11
TEX. R. CIV. P. 320. ............................................................................................ 16
Secondary Sources
Michael Henke and Craig Margolis, The Taking and Use of Video
Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter,
1998). ....................................................................................................... 16
vii
Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an
Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n.
238 (2009). ............................................................................................... 16
Jansen Voss, The Science of Persuasion: An Exploration of
Advocacy and the Science Behind the Art of Persuasion in the
Courtroom, 29 Lans. Ch. & PSYCHOL. REV. 201, 216 (2005)............................. 16
viii
STATEMENT REGARDING ORAL ARGUMENT
Real Parties in Interest, Vernon Fox and Mikki Fox (together, “Fox),
request oral argument in this matter but only conditionally and only
because Relator, Valero Refining—Texas, L.P., has done so. In truth, Fox
believes that little reason exists for the Court to hear oral argument in this
matter. Should the Court even reach the majority of the record in this case,
a review of that record is all that is necessary for the Court’s decision. Oral
argument can shed minimal additional light. Consequently, should the
Court grant oral argument to Valero, Fox requests equal time. Otherwise,
Fox waives oral argument.
ix
RESPONSIVE ISSUES PRESENTED
1. Mandamus cannot issue against a successor judge for her
predecessor’s order. Valero attacks the wrong order and
asks for the wrong relief. Valero’s Petition must be
denied.
2. Judge Grady’s reasons for declining to reconsider Judge
Griffin’s order may include considerations of judicial
consistency and continuity within the case and her court,
as well as recognition that her predecessor was actually
present for trial and able to view witness testimony. Such
considerations are anything but unguided and
unprincipled. They cannot be an abuse of discretion.
3. Should the Court decide to consider it, Judge Griffin’s
Order was supported by his own observation of all
witnesses during testimony in open court and his
evaluation of their credibility.
4. Evidence showed that Fox suffered physical injury from
chemical exposure that is more than just mental anguish
and that demonstrated both specific and general
causation.
STATEMENT OF FACTS
On January 12, 2011, Valero’s Texas City refinery released crude oil
from a storage vessel in its tank farm, due to overfilling. Droplets of crude
oil crossed the road where Vernon Fox, an employee of BP, traveled that
day. This much is firmly established by the evidence, and no one disputes
it. Fox was on the road near the release when it occurred. Fox testified to
1
it, and no one disputes it.
In its briefing, Valero suggests that Fox was not exposed to anything
from the spill until approximately an hour after the overflow had been
stopped. Valero’s Petition, at 2. It also notes that Fox had a H2S monitor
on his person that was not triggered. Id. But Fox’s testimony is somewhat
different. Fox testified that he was aware of unusual “smells” when he
passed by Valero’s tank farm on the way to check a valve that morning,
though he did not see anything overflowing. ROA 1:933-44. He testified
that those “smells” were much stronger on the return leg of his journey.
ROA 1:945. While Fox had his H2S monitor in the cab of his truck, he was
not wearing it at the time. ROA 1:945. It was on his jacket, which was on
the truck seat beside him. Id. On the return leg of his journey, Fox
described driving into a “vapor cloud.” ROA 1:946. Perceiving an unsafe
situation that needed to be addressed and intending to look for a leak, Fox
stopped his truck and exited the cab, leaving his H2S monitor behind. Id.
Having observed a spill, Fox returned to his office where he contacted
Valero concerning the spill. ROA 1:947. Fox testified that he was shaken
by the realization that he had been exposed to a chemical or chemicals that
could have been ignited, even as he stood there. ROA 1:947-48. Later that
2
day, Fox’s supervisor sent him home. ROA 1:948-49. The disputes arise
with regard to Fox’s claimed harm. Valero’s argument is that Fox was
“faking it.”
As both fact and expert witness, Fox presented evidence concerning
his course of treatment by Dr. Ly, his treating psychiatrist, who diagnosed
Fox with a major depressive disorder. He also presented evidence from Dr.
Polk, a clinical psychologist, who cared for and treated Fox for a
considerable period. ROA 1:733. Dr. David Axelrad is a psychiatrist and
neuropsychiatrist who examined Fox at the request of his counsel. ROA
1:1175. Dr. Axelrad has specific experience treating patients with post-
traumatic stress disorder (PTSD). ROA 1:1180, 1:1193. Dr. Axelrad
testified that PTSD is a form of physical brain injury resulting from the
release of excess stress chemicals. ROA 1:1266. When under stress, the
body releases cytokines that promote an inflammatory response. ROA
1:1205. This is more than simple anxiety, but an actual physical response to
extreme stress.
Dr. Axelrad testified that Fox suffers from a major neurocognitive
disorder, resulting from physical brain injury secondary to exposure to
neurotoxins. ROA 1:1197-98. These brain injuries and the resulting
3
neurocognitive disorder manifest in major impacts on his behavior. ROA
1:1198. Dr. Axelrad also noted that, where a person has suffered brain
injury and potentially life-threatening circumstances, this can lead to the
development of PTSD. ROA 1:1201. Dr. Axelrad observed that multiple
professionals—a clinical psychologist following Fox over a period of time
and a treating psychiatrist—diagnosed Fox with PTSD. ROA 1:1202. He
also testified that, in his estimation, Fox meets the criteria for a PTSD
diagnosis. Id.
Dr. Priscilla Ray is a psychiatrist, brought to trial as an expert witness
by Valero. Dr. Ray testified that Dr. Ly—Fox’s treating psychiatrist—
followed appropriate standards of care in treating him, prescribing
psychotherapy and medication. ROA 1:1501-02. Dr. Ray testified that Fox
claimed symptoms consistent with the disorders he claims and that Dr. Ly
prescribed appropriate medication for post-traumatic stress disorder
(PTSD). ROA 1:1503-04. Dr. Ray also agreed that, if Fox did not show
particular symptoms of PTSD upon her examination of him, this could be
due to the fact that medication he was prescribed for that condition was
actually working. ROA 1:1502.
4
Dr. Ray testified that Fox suffered from major depression and from a
somatic symptom disorder. ROA 1:1524. She acknowledged that he
showed no such symptoms before his exposure to the chemical release.
ROA 1:1523-24. She acknowledged that, before this incident, he was a
healthy, happy family man, one who enjoyed working. ROA 1:1523. She
acknowledged that Fox reported feeling “defeated” and that Dr. Axelrad—
who diagnosed Fox with PTSD—could be right. ROA 1:1525. She said
that, even in her own opinion, Fox could have “a major depressive
disorder.” ROA 1:1525-26.
Dr. Ray’s explanation for Fox’s situation is “malingering” in pursuit
of an “external incentive”—money. ROA 1:1522. She testified that pursuit
of a lawsuit or disability payments could have motivated him. ROA
1:1520-21. But she could provide no explanation as to why Fox continued
to work for a year following his exposure, and used up his sick time and
vacation time in that spell. Id. She also could provide no explanation as to
why a “malingerer” would wait over a year, post-accident, to consult a
lawyer. Id.
Dr. Ray confirmed that Fox was diagnosed with a major depressive
disorder by multiple doctors. ROA 1:1532. She confirmed that Dr. Ly
5
mentions his suicidal ideation. ROA 1:1549. This occurred in September
2011, prior to any discussion with Dr. Axelrad, Fox’s expert witness. ROA
1:1551. The diagnosis and symptoms discussed, up to that point, came
solely from Fox’s treating health care and mental health care providers. Dr.
Ray was asked about Fox’s anxiety about returning to work and agreed
that it could arise from returning to the location where his chemical
exposure occurred. ROA 1:1559. She recognized the recommendation that
he take time away from work because of possible safety concerns related to
his anxiety and PTSD and that this time away was recommended by his
treating health care providers. ROA 1:1560. Again, she recognized that
this was prior to any meeting with Dr. Axelrad. ROA 1:1560-61.
Dr. David Rosenfield is a neurologist and expert witness retained by
Valero. ROA 1:1572. In his testimony, Dr. Rosenfield confirmed his
understanding that, among the chemical components to which Vernon Fox
would have been exposed were hydrogen sulfide (referred to throughout
the proceedings as “H2S”) and benzene. ROA 1:1630-31. Dr. Rosenfield
observed that the fact of exposure was not dependent upon the amount of
oil or chemicals spilled. ROA 1:1631. Dr. Rosenfield confirmed that H2S is
a neurotoxin and can create neurocognitive deficits. ROA 1:1617. It can
6
also cause a number of other symptoms, including headache, dizziness,
weakness, exhaustion, irritability, and insomnia. ROA 1:1621-22. Dr.
Rosenfield confirmed that these were symptoms described by Fox. ROA
1:1623-24. OSHA instructs that, at lower concentrations, the effects of
exposure can be delayed. ROA 1:1623.
Dr. Rosenfield confirmed that H2S exposure can occur through
inhalation or through eye or skin contact. ROA 1:1621. While apparently
disputing Fox’s testimony at trial, he testified in his deposition that Fox
was most likely exposed to chemical vapors. ROA 1:1633-34. Finally, Dr.
Rosenfield confirmed that breathing in H2S can interfere with the enzyme
cytochrome oxidase, an enzyme necessary for brain cells’ use of oxygen.
ROA 1:1644-45. That interference with oxygen use can cause damage to the
brain. Id.
SUMMARY OF THE ARGUMENT
Valero makes much of Hon. Brent Griffin issuing his Order for a new
trial on his final day in office, and it spends almost its entire petition
attacking the correctness and propriety of Judge Griffin’s Order. But it is
not Judge Griffin’s Order that is in question. A writ of mandamus must be
directed to someone, and that someone cannot be an official who no longer
7
holds office. Such is the rationale for TEX. R. APP. P. 7.2(b), which provides
for abatement of an original proceeding in order to allow a new office
holder to reconsider the actions and orders of her predecessor and provide
opportunity to give her own opinion and grounds to justify or refute such
an order. That is both the situation here and not the situation here.
Two trial judges, not just one, rejected Valero’s position. Valero
attacks the wrong order and provides an insufficient mandamus record.
Valero attacks Judge Griffin’s Order, but it is Hon. Patricia Grady’s Order
on Valero’s Motion for Reconsideration that holds sway. It is Judge Grady
who is the Respondent in this matter, and Judge Grady took office and
considered the issues at bar well before Valero filed the current Petition.
Yet, even knowing that appropriate specificity of a new trial order was an
issue in this matter—having pressed it as part of its Motion for
Reconsideration (ROA 137-139)—Valero sat on its hands as Judge Grady
signed a single-page Order denying its Motion for Reconsideration and
cementing Fox’s right to a new trial. ROA 188. Valero never protested or
sought any greater detail, and the bases for Judge Grady’s Order are a
mystery. Mysteries cannot support mandamus. Valero argues that
judgment on the jury’s verdict should have been entered but never sought
8
an explanation as to why it was not. What Valero seeks by way of
mandamus this Court cannot grant.
Even so, the potential bases for Judge Grady’s Order range beyond
what could have been contemplated by Judge Griffin. Maintaining
consistency and continuity of judicial decision-making within a Court and
a single case; the simple fact that Judge Griffin was able to evaluate the
credibility of each witness in open court rather than from a cold record,
these are factors that might well have figured in Judge Grady’s calculus.
As Valero itself admits, the case is largely about credibility. Contrary to
Valero’s position, however, jurors are not the only ones who evaluate
witness credibility. Short of a finding that such reasons are “no reason,”
Judge Grady’s Order cannot be an abuse of discretion.
Finally, even if the Court should delve back into the activities of
Judge Grady’s predecessor, it will find that Judge Griffin’s Order was well
within the bounds of his discretion. Valero’s own expert witnesses could
not rule out Fox’s claim to damages, and, even as Valero criticizes Fox’s
description of symptoms as entirely subjective, its own experts throw
around a “diagnosis” of “malingering”—a subjective estimation, if ever
there were.
9
ARGUMENT
The Standard of Review
Mandamus is an extraordinary remedy, reserved for use in instances
of manifest and urgent necessity. Holloway v. Fifth Court of Appeals, 767
S.W.2d 680, 684 (Tex. 1989). It is not issued as a matter of right, but solely at
the discretion of the court, In re Prudential Ins., 148 S.W.3d 124, 138 (Tex.
2003), and only when the relator “satisfies a heavy burden of establishing
‘compelling circumstances.’” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.
1996). “As a selective procedure, mandamus can correct clear errors in
exceptional cases and afford appropriate guidance to the law without the
disruption and burden of interlocutory appeal.” Id. But the Court may
issue mandamus only when the relator demonstrates and the Court finds
that (1) the trial court has committed a clear abuse of discretion and (2) the
relator lacks any adequate remedy at law. Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992).
A trial court abuses its discretion only if it acts without reference to
any guiding rules and principles. Downer v. Aquamarine Operators, 701
S.W.2d 238, 241-42 (Tex. 1985). The question is not whether the reviewing
court believes the trial court’s action appropriate or correct. Id. Valero
10
argues steadily concerning what the jury could have found, but it fails to
focus on what the trial court did find. As relator in a mandamus
proceeding, it is not enough for Valero to state that its sought after result is
a reasonable, permissible outcome. It must argue that it is the only outcome
consistent with the law.
Responsive Issue One
Mandamus cannot issue against a successor judge for her
predecessor’s order. Valero attacks the wrong order and
asks for the wrong relief. Valero’s Petition must be
denied.
Although a particular respondent is not critical in a mandamus
proceeding, the writ must be directed to someone. In re Schmitz, 285 S.W.3d
451, 454 (Tex. 2009). And generally a writ will not issue against one judge
for what another did. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228
(Tex. 2008) (“Baylor I”). Thus, in an original proceeding where the judge
who signed the order at issue has “cease[d] to hold office,” an appellate
court “must abate the proceeding to allow the successor to reconsider the
original party's decision.” TEX. R. APP. P. 7.2. Consequently, the Texas
Supreme Court has refused to consider the reasons given by a first trial
judge in a new trial order, when it was a successor’s refusal to reconsider
11
the order that was at stake. See In re Baylor Med. Ctr. at Garland, 289 S.W.3d,
859, 860 (Tex. 2009) (“Baylor II”).
A. Judge Griffin’s Order for new trial is no longer at issue.
Valero complains—exclusively—about the actions of Judge Griffin. It
explores and examines Judge Griffin’s new trial order. But Judge Griffin is
no longer the judge of the 212th District Court. Judge Griffin ceased being
the judge of that Court long before Valero ever filed its Petition for Writ of
Mandamus. And Judge Griffin is not the Respondent in this case and is not
the one who would be compelled to act by any writ issued by this Court.
“As in Columbia and Baylor II . . . the former trial court’s order is no longer
at issue here, as the successor trial judge has since issued a subsequent
order.” See In re Cook, 356 S.W.3d 493, 495 (Tex. 2011) (citing In re Columbia
Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2007).).
B. Judge Grady’s Order does not state her basis, and Valero never
asked Judge Grady to do so.
Even as it raised the alleged dearth of specificity of Judge Griffin’s
Order in its Motion for Reconsideration (ROA 137-139), Valero has sat on
its hands in the trial court since mid-April, when Judge Grady denied that
Motion, never requesting a more specific order, and never requesting the
12
justification or basis for Judge Grady’s decision. And now, Valero comes to
this Court in the name of “manifest and urgent necessity.” See Holloway,
767 S.W.2d, at 684. Valero simply cannot demand the Court exercise its
extraordinary writ power under such circumstances.
Judge Grady’s Order does not specify the reasons for her denial of
Valero’s Motion for Reconsideration. ROA 188. Yet that Order is no less a
refusal to enter judgment on the jury verdict than was Judge Griffin’s, and
it is the only Order that counts now. See Cook, 356 S.W.3d, at 494. The
Court may not presume that, simply because a valid basis is not stated in
the Order, that Judge Grady did not have one. See In re United Scaffolding,
377 S.W.3d 685, 690 (Tex. 2012) (trial court’s failure to state why it granted a
new trial does not mandate a conclusion that it did not have a valid reason
for doing so). Valero’s failure to request Judge Grady’s rationale leads
directly to a failure of its mandamus record, and the Court need read no
further. Because Valero does not present a record that contains this crucial
information, everything else in the record is irrelevant. The record Valero
provides is wholly insufficient to show Valero’s right to the relief it seeks.
Valero’s Petition must be denied.
13
Responsive Issue Two
Judge Grady’s reasons for declining to reconsider Judge
Griffin’s order may include considerations of judicial
consistency and continuity within the case and her court, as
well as recognition that her predecessor was actually present
for trial and able to view witness testimony. Such
considerations are anything but unguided and unprincipled.
They cannot be an abuse of discretion.
Valero’s burden in its Petition is to show that Judge Grady acted
arbitrarily and without reference to any guiding principle in her denial of
Valero’s Motion for Reconsideration. As has already been argued, Valero
cannot show why Judge Grady acted as she did, at all, because Valero
never asked her. Nevertheless, as the new judge of a trial court being
asked to reconsider the actions of her predecessor, Judge Grady faced
concerns distinct from those of Judge Griffin.
A. Consistency of decisions within a single case is a valid judicial
concern.
Valero bases its arguments on what the jury could have found, rather
than reviewing what the trial court actually did find. It was the latter that
was the basis for its order, not what is cited by Valero. Of course, once
again, Valero did not inquire about that basis. That said, consistency of
judicial decision-making, particularly within a single case, is a valid
14
concern for any court. See, e.g., Paradigm Oil v. Retamco Operating, 372
S.W.3d 177, 182 (Tex. 2012) (noting the effect of the “law of the case”
doctrine). The “law of the case” doctrine applies to questions of law,
however, the concerns underpinning it are no less valid when applied to
factual determinations and applicability of legal standards. As the newly
elected judge of the 212th District Court, Judge Grady may well have been
reluctant to go down a path of reconsidering her predecessor’s orders,
wholesale. If she were to do so in one case, she might be expected to in
every case. Mandamus exists to correct clear errors in extraordinary cases.
It does not exist to allow litigants to nitpick trial court decisions and press
appellate courts to micromanage trial court cases and dockets.
B. Decision of the case at bar and the trial court’s order for new
trial rested upon the credibility of many witnesses, none of
whose testimony Judge Grady was able to hear in person.
As the only judge who was present in the courtroom for the trial of
this matter and the testimony of each witness, Judge Griffin was in a
position to see what neither Judge Grady nor this Court can see. Valero
itself states that the overriding factor in determining the outcome of this
case is credibility. While Valero cites, in particular, Vernon Fox’s
credibility, the credibility of every witness is significant. Fox’s testimony is
15
of particular significance because the centerpiece of Valero’s argument is
not that he was not exposed to any harmful chemical, but that he is faking
his symptoms.
Judge Griffin was able to see and hear each witness—including Fox—
testify, rather than relying upon a cold record. Because credibility is such
an issue in this matter, Judge Grady was entirely justified in leaving her
predecessor’s new trial order undisturbed. She had only a transcript before
her and could not evaluate the testimonial demeanor of the witnesses.1
Her reluctance to backtrack from Judge Griffin’s order under such
circumstances cannot constitute an abuse of her discretion.
C. Both considerations of consistency and lack of opportunity to
weigh the credibility of witnesses may constitute good cause
for allowing Fox’s new trial to proceed.
The Texas Supreme Court has expressly declined to define what
constitutes the “good cause” for which TEX. R. CIV. P. 320 permits a new
1 Further, psychologists suggest that non-verbal communication accounts for 65 to
70 percent of the total communication between humans. Stephanie A. Vaughan,
Persuasion Is an Art ... But It is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635,
672 n. 238 (2009) (citing Jansen Voss, The Science of Persuasion: An Exploration of Advocacy
and the Science Behind the Art of Persuasion in the Courtroom, 29 Lans. Ch. & PSYCHOL. REV. 201,
216 (2005). Other estimates place the figure higher. Michael Henke and Craig Margolis,
The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter,
1998) (“One commentator has suggested that as much as 60% to 93% of all
communication is non-verbal.”). Again, this sort of communication was something
Judge Griffin could see that Judge Grady could not.
16
trial. See In re Columbia, 290 S.W.3d, at 210 n. 3. In the same case, the Court
reiterated the broad discretion that trial courts have to grant new trials. 290
S.W.3d, at 210. Absent any authority suggesting that consistency of
practice and limitations on Judge Grady’s ability to evaluate the effect of
witness testimony are not valid considerations, the Court should presume
that they are. Again, Valero failed to ask Judge Grady about the reasons
for her Order, but both of the above-raised grounds were a part of Fox’s
response to Valero’s Motion for Reconsideration. ROA 1:143-58. “In most
cases a new trial will be granted for reasons stated in a motion for new
trial, so that such an explanation will alert the parties to the reason the
judge found persuasive, further illuminating the substantive basis for the
order.” In re United Scaffolding, 377 S.W.3d, at 688. Based on this, Valero is
on notice of both of the above-stated rationales, yet still fails to attack either
in its Petition. Once again, Valero’s Petition fails and must be denied.
17
Responsive Issue Three
Should the Court decide to consider it, Judge Griffin’s Order
was supported by Fox’s expert witness testimony that linked
his chemical exposure to his PTSD and depression, and
Valero’s experts even admitted that testimony could be correct.
Fox testified to the fact of his own chemical exposure. ROA 1:946.
His physician and psychologist experts gave information concerning Fox’s
major depressive disorder, and Dr. Axelrad testified as to how the
exposure could lead to PTSD—a physical condition with behavioral
manifestation. Three experts—Drs. Polk, Pollock, and Axelrad—testified
that the severe depression and major depressive disorder suffered by Fox
resulted from his chemical exposure.
A. Valero’s experts never testified that Fox’s experts were wrong.
But even more telling is the testimony of Drs. Ray and Rosenfield,
both retained by Valero. Despite Dr. Ray offering an alternative
explanation for Fox’s symptoms from that posited by Dr. Axelrad, she
never testified that Dr. Axelrad was wrong. Indeed, she testified that he
could be right. ROA 1:1525. Likewise, Dr. Rosenfield—who never actually
examined or met Fox—confirmed that Fox’s claimed route of H2S exposure
is a genuine avenue of such exposure and that H2S is a neurotoxic
18
substance that can cause the sort of neural deficits and problems of which
Fox complains. ROA 1:1617. Dr. Rosenfield also testified to the physical
damage that such exposure can cause, interfering with the brain’s use of
oxygen and causing damage to brain cells. ROA 1:1644-45. But, once
again, this does not contradict the position taken by Fox’s experts who had
been treating him for months and—unlike Dr. Rosenfield—had actually
spoken to him. The trial court’s acceptance of uncontroverted evidence as
suggestive that the jury has erred can hardly be an abuse of discretion.
B. Fox presented evidence that, even if subjective, is still evidence.
Valero’s primary complaint appears to be, not that there is no
evidence to support Fox’s position and the trial court’s decision, but that
Fox’s symptoms are, at least to some degree, subjective and are not easily
verifiable by objective means. This does not mean, however, that they are
not evidence. See Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.
1977) (expert testimony based upon case history given by patient, physical
examination, and x-rays, reciting opinion “consistent with” patient’s
complained of symptoms was admissible). Nor does it mean that the
19
expert opinions based upon those symptoms are, of necessity, unreliable.2
Id. Evidence that Valero discounts is, nonetheless, evidence. It is not
Valero’s job to say what the trial court found convincing; it is the trial
court’s job.
The combination of testimony from multiple retained and non-
retained expert witnesses, as cited by the Court, is more than sufficient to
justify its Order. See In re Anna C. Smith, 332 S.W.3d 704 (Tex. App.—
Texarkana 2011, orig. proceeding) (finding that order reciting witness
testimony in general terms was sufficient to meet requirements of In re
Columbia Med. Ctr.). It is not sufficient that Valero argue what the jury was
“free to find.” It must attack—entirely—what the Court did find.
Provided that the basis for the Court’s Order is not contradicted by the
record—and it is not—there is no basis for the Order to be re-visited. Cf. In
re Toyota Motor Sales, 407 S.W.3d 746, 761 (Tex. 2014). To the extent that it
was Judge Griffin’s job to say, if asked, what he found convincing, he did
so. To the extent that it was Judge Grady’s job to do so, again, Valero never
asked.
2 Moreover, reliability of evidence is, in general, a matter for the trial court to
decide. Trial courts routinely opine on the reliability of evidence in order to admit or
exclude it. Indeed, it is a core part of the trial court’s gatekeeping function. See, e.g., E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
20
Responsive Issue Four
Evidence showed that Fox suffered physical injury from
chemical exposure that is more than just mental anguish and
that demonstrated both specific and general causation.
A. Valero mischaracterizes and minimizes the nature of Fox’s
injury in an effort to make its point.
Valero next argues that the trial court abused its discretion by
granting Fox a new trial because his evidence is legally insufficient to show
damages. In particular, it argues that he cannot recover damages for the
injury done to him because he must show a serious physical injury. In
order to minimize Fox’s claim, Valero mischaracterizes his claim as one for
“mental anguish.” This is not what Fox’s claim is about. Fox’s claim is for
Post-Traumatic Stress Disorder—a physical condition with psychological
and behavioral manifestation.
As Dr. Axelrad testified, PTSD is a form of physical brain injury
resulting from the release of excess stress chemicals. ROA 1:1266. When
under stress, the body releases cytokines that promote an inflammatory
response. ROA 1:1205. PTSD is not merely anxiety, it is the behavioral
manifestation of a very real physical injury. Valero’s discussion of Fox’s
damage as mere “mental anguish” entirely mischaracterizes his injury and
21
mischaracterizes his case. Fox presented uncontradicted expert testimony
that PTSD results from a serious physical brain injury. Valero never took
issue with this testimony in the trial court. It still does not take issue, now.
Furthermore, Dr. Rosenfield testified as to the very physical effects of
H2S on the brain. Dr. Rosenfield confirmed that breathing in H2S can
interfere with the enzyme cytochrome oxidase, an enzyme necessary for
brain cells’ use of oxygen. ROA 1:1644-45. He also conceded that
interference with oxygen use can cause damage to the brain. Id. It was not
an abuse of discretion for the trial court to take Valero’s own witness’s
testimony at face value.
B. Valero never actually argues that Fox failed to show general
causation.
Finally, Valero complains concerning general and specific causation.
Valero first correctly notes that general causation asks whether a particular
substance is capable of causing injury or a condition in the general
population. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,
602 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Valero then argues
that there is no evidence of the amount of toxin to which Fox was exposed.
This, of course, is not a question regarding general causation, but one
22
regarding specific causation—toxins causing damage, not in the general
population, but in a specific individual.
In any case, Valero’s own expert witness, Dr. Rosenfield,
acknowledged that Fox was exposed to H2S and that it is a neurotoxin.
ROA 1:1617. He also confirmed that it can cause a number of other
symptoms, including headache, dizziness, weakness, exhaustion,
irritability, and insomnia. ROA 1:1621-22. These are some of the very
symptoms observed in Fox.
Moreover, as Dr. Axelrad testified, at least a portion of Fox’s
damages stem from PTSD. PTSD is not caused by H2S exposure but by an
extreme stress reaction that causes a release of cytokines within the brain.
ROA 1:1205. Exposure is part of the equation, but it is not all of it.
Characterizing Fox’s claim as entirely a toxic tort claim again
mischaracterizes it.
C. Fox presented evidence of specific exposure to particular toxins.
Unlike the case law cited by Valero, which presents toxic exposure
cases that developed over many, many years of exposure to toxic products
from many different defendants, Fox alleges a single, discreet incident
where there is only one defendant. See Borg-Warner Corp. v. Flores, 232
23
S.W.3d 765, 773 (Tex. 2007). Flores considered a suit against a particular
maker of asbestos-containing brake pads and a plaintiff’s allegations that
he had been exposed to these brake pads, as well as brake pads from many
other manufacturers and asbestos from other sources. A major concern of
Flores is that evidence be defendant-specific, so that a defendant that causes
only minimal exposure cannot be said to have caused an occupational
disease.
In contrast, there is no other defendant in Fox’s suit but Valero.
There is no other evidence showing the source for the toxins to which he
was exposed, and there is causal evidence showing that he did not
demonstrate his particular symptoms before exposure but did so after
exposure. The trial court did not abuse its discretion by declining to apply
a precedent that is, factually, worlds apart from the allegations and central
facts of Fox’s suit.
CONCLUSION
Mandamus is not a remedy for every trial court error. It exists for use
in cases of manifest and urgent necessity, where a trial court has taken
action that is unguided by any legal principle or rule. That is not the
situation here. Two trial judges viewed the evidence differently from the
24
jury. The first explained the reasons behind granting a new trial in an
entirely sufficient order. The second gave no explanation, nor was she
requested to give any such explanation. But even if this did not add up to
a failure of Valero’s mandamus record, Valero simply cannot justify
mandamus in this case. The trial court’s action is not egregious. It is not
unguided. It is simply different from what Valero would have. It is not an
abuse of discretion. Mandamus is completely inappropriate given both the
state of the record and the evidence adduced. It should be, indeed must be,
denied.
PRAYER
For the foregoing reasons, Real Parties in Interest Vernon Fox and
Mikki Fox, respectfully request that Valero Refining Texas, LLC’s Petition
for Writ of Mandamus be denied.
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Respectfully submitted,
SIMPSON, P.C.
/s/ Iain G. Simpson
______________________________
Iain G. Simpson
State Bar No. 00791667
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
(281) 989-0742
(281) 596-6960 – fax
iain@simpsonpc.com
APPELLATE COUNSEL
FOR VERNON FOX AND MIKKI FOX
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing response is computer-generated
and that those portions required to be counted by Rule 9.4(i)(1), Texas
Rules of Appellate Procedure, contain 6,420 words, according to the word-
count function of the application used to create it. The response is printed
in 14-point typeface, except for the footnotes, which are in 12-point
typeface.
/s/ Iain G. Simpson
______________________________
Iain G. Simpson
26
CERTIFICATE OF SERVICE
I hereby certify that, on August 27, 2015, I served a true and correct
copy of the foregoing Response to Petition for Mandamus via electronic
service, certified mail, facsimile, or hand delivery on the following:
David W. Burns
Tekell, Book, Allen & Morris, LLP
1221 McKinney, Suite 4300
Houston, Texas 77010
713-222-9542–telephone
713-655-7727–facsimile
James F. Bennett
Megan Heinsz
Dowd Bennett, LLP
7733 Forsyth Boulevard
St. Louis, Missouri 63105
314-889-7300–telephone
314-863-2111–facsimile
Richard P. Hogan, Jr.
Jennifer Bruch Hogan
James C. Marrow
Hogan & Hogan
Pennzoil Place
711 Louisiana, Suite 500
Houston, Texas 77002
713-222-8800–telephone
713-222-8810–facsimile
27
Alex M. Miller
The Valero Companies
One Valero Way
San Antonio, Texas 78249
210-345-2857–telephone
210-345-4567–facsimile
COUNSEL FOR VALERO REFINING – TEXAS, L.P.
/s/ Iain G. Simpson
________________________________
Iain G. Simpson
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