in Re Reliable Commercial Roofing Services, Inc. ( 2015 )

ACCEPTED
01-15-00450-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 9:54:53 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00450-CV
IN THE FILED IN
1st COURT OF APPEALS
FIRST COURT OF APPEALS HOUSTON, TEXAS
6/29/2015 9:54:53 AM
at Houston, Texas CHRISTOPHER A. PRINE
Clerk
IN RE RELIABLE COMMERCIAL ROOFING SERVICES, INC.,
Relator
From the 125th District Court of
Harris County, Texas
RELATOR’S REPLY TO REAL PARTY IN INTEREST’S RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
RAMSEY & MURRAY, P.C.
Mark Ramsey
Texas Bar No. 16521700
Wayne Walters
Texas Bar No. 24029333
800 Gessner, Suite 250
Houston, Texas 77024-4239
Tel. 713/613-5400
Fax 713/613-5414
ATTORNEYS FOR RELATOR,
RELIABLE COMMERCIAL
ROOFING
SERVICES, INC.
TABLE OF CONTENTS
INDEX OF AUTHORITIES........................................................................... 3
ARGUMENT .................................................................................................. 4
PRAYER ....................................................................................................... 10
CERTIFICATION ........................................................................................ 11
CERTIFICATE OF SERVICE ..................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................ 12
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INDEX OF AUTHORITIES
RULES OF CIVIL PROCEDURE
TEX. R. CIV. P. 204 .............................................................................................8,9,10
CASES
In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014,
orig. proceeding) ......................................................................................... 5,8,9,10
In re Transwestern Publishing Company, L.L.C., 96 S.W.3rd 501 (Tex.App.—Fort
Worth 2002, orig. proceeding) .............................................................................8,9
In the interest of N.R.C. and L.A.C., 94 S.W.3d 799 (Tex.App.—Houston [14th
Dist.] 2002, pet.denied) .........................................................................................10
Sherwood Lane Assoc. v. O'Neill, 782 S.W.2d 942 (Tex. App. – Houston [1st Dist.]
1990, orig. proceeding) .....................................................................................4,5,6
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No. ____________
IN RE RELIABLE COMMERCIAL ROOFING SERVICES, INC.,
Relator
RELATOR’S REPLY TO REAL PARTY IN INTEREST’S RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
I. INTRODUCTION
Relator, RELIABLE COMMERCIAL ROOFING SERVICES, INC.
(“Reliable”), submits this reply to the response filed by Kenneth Presson, the Real
Party in Interest (“Presson”), to Reliable’s petition for writ of mandamus pending
before the Court.
II. ARGUMENT
A. Fundamental Fairness and the Right to Discovery
Presson argues in his Response that, because the treating physicians he
identified “might” be asked to testify at trial, but have not yet been retained as
experts, the “fundamental fairness” doctrine proposed by this Court in the
Sherwood Lane decision somehow does not apply to Reliable’s request for a
medical exam. In Sherwood Lane, this Court stated as follows:
The movant must demonstrate that the information sought [through
the exam] is required to obtain a fair trial and therefore necessitates
intrusion upon the privacy of the person he seeks to have
examined…If, however, a plaintiff intends to use expert medical
testimony to prove his or her alleged…condition, that condition is
placed in controversy and the defendant would have good cause for an
examination…
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Sherwood Lane Assoc. v. O'Neill, 782 S.W.2d 942, 945 (Tex. App. – Houston [1st
Dist.] 1990, orig. proceeding). Presson does not state in his response that he has no
intention to use expert medical testimony to prove his condition. Without a doubt
this is Presson’s intention. Because Presson clearly intends to use expert medical
testimony to prove his alleged condition, Reliable has good cause for its requested
medical exam under Sherwood Lane.
The trial court’s action in denying the motion for medical examination
severely restricts Reliable’s opportunity to discovery facts that may contradict
those of the Plaintiff’s treating physicians. See Id. Importantly, as this Court has
previously held:
The ultimate purpose of discovery is to seek the truth, so that disputes
may be decided by what the facts reveal, not by what facts are
concealed.…Fundamental fairness dictates that relators’ [physician]
be allowed to examine the [plaintiff]; otherwise, relators will be at a
severe disadvantage in the “battle of experts.”
Id. Stated another way by another court in considering an exam request: “A denial
of discovery goes to the heart of a party’s case when the party is prevented from
developing essential elements of its claim or defense.” In re Ten Hagen
Excavating, Inc., 435 S.W.3d 859, 863-64 (Tex. App.—Dallas 2014).
B. Trial Court’s Ruling
Presson further argues in his Response that the trial court made a factual
finding that Reliable did not meet its burden of showing good cause, thus denying
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Reliable’s request for a medical exam. However, the basis for the trial court’s
erroneous ruling is nowhere in the record and there is no indication of any factual
finding by the trial court with regard to Reliable’s request for medical exam. [See
Tabs E and H to Reliable’s Petition.] It must be presumed that the trial court based
its decision on Presson’s “less intrusive means” argument, because this is the only
argument asserted in Presson’s responses at the trial court level. [See Tabs D and G
to Reliable’s Petition.] The trial court abused its discretion because, despite
Reliable’s showing of good cause under controlling case law, the trial court
arbitrarily and erroneously denied its request for a medical exam.
C. Relevant Examination, Nexus Between Exam and Condition
Presson further argues in his Response that Reliable’s argument in this
mandamus proceeding is somehow deficient because its briefing does not show
that the requested examination will lead to relevant information or that there is a
nexus between a condition Presson asserts and the examination Reliable seeks.
This argument is disingenuous at best, given the timing of the argument at this
stage of the proceeding when it was not made by Presson at the trial court level.
Reliable’s Motion for Medical Examination at the trial court level clearly
addresses the “relevance” and “nexus” elements. [See Tab C to Reliable’s
Petition.] However, Presson did not argue (in responding to either Reliable’s
motion for medical exam or Reliable’s motion for reconsideration) that either the
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relevancy of the exam or the nexus between the exam and Presson’s condition(s)
was in issue. [See Tabs D and G to Reliable’s Petition.] As stated previously,
Presson’s argument in opposition to the requested exam was limited to the “less
intrusive means” argument.
D. Potentially “Favorable” Information Available from
Treating Providers Does not Preclude Exam
Presson further argues in his Response that Reliable’s request for a medical
exam is somehow weakened by the fact that there may be some information in
Presson’s medical records which “Reliable could well find favorable and use at
trial.” No authority was cited and no authority exists to support this argument.
Along the same lines, Presson also argues that, because “favorable” information
may be found in the medical records, “[t]here is no reason to compel Mr. Presson
to undergo additional exams so as to obtain what could be the exact same
testimony.” This argument presumes that Presson knows the results of the
examination before it is performed. However, if the requested medical exam were
to be conducted, such an exam may result in information that Presson could also
“well find favorable and use at trial.” Again, this argument is presented by Presson
without any legal authority to support it.
To the extent that the opinions of the treating medical providers identified as
“potential” testifying experts may be found to undermine Presson’s claims, this
would have no bearing on whether Reliable is entitled to the requested medical
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exam. As suggested in Presson’s response, one such treating provider, psychologist
Dr. Francisco Perez, has opinions which may tend to “undermine” Presson’s
claims. This suggestion might be more meaningful if Reliable had requested an
examination by a psychologist. In that scenario, it might be valid for Presson to
argue that Reliable has access to the “favorable” results of a psychological exam
and, therefore, should not be entitled to another psychological exam. However,
Reliable has requested a neurological examination to be performed by neurologist
Raymond Martin, M.D. Dr. Martin can opine as to the physical injury to Mr.
Presson’s head and the effects of that injury, whereas Dr. Perez, a Ph.D.
psychologist is unqualified to give an opinion as to the physical injury or the
physical impairment alleged by Presson in this lawsuit.
E. Application of Rule 167a versus Rule 204.1
Presson further argues that there is a meaningful distinction between the
language of former Rule 167a and the current Rule 204.1 in how courts should
consider the “good cause” requirement in requests for medical exams. Presson
seems to assert that Rule 204.1 has a more stringent requirement for courts to
analyze and apply the “good cause” requirement. Presson references
Transwestern and Ten Hagen (notably, Fort Worth and Dallas cases, respectively),
both of which involved requests for exams under the current Rule 204.1, ostensibly
to show that the Plaintiff’s use (or intended use) of medical experts is insufficient
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under Rule 204.1 to show good cause, absent satisfaction of the three-part “good
cause” test.
Here, it is important to reiterate that the only “good cause” element
challenged by Presson in the trial court pleadings is the “less intrusive means”
element. Further, as set forth in Reliable’s Petition, Transwestern and Ten Hagen,
both support Reliable’s position. In Transwestern, the Fort Worth Court of
Appeals found that the information sought by way of the requested exam could not
be obtained by less intrusive means because, absent the exam, the defendant’s
experts would be limited to a review of the plaintiff’s records and the testimony of
the plaintiff’s experts. In re Transwestern Publishing Company, L.L.C., 96
S.W.3rd 501, 508 (Tex.App.—Fort Worth 2002, orig. proceeding).
In Ten Hagen, the court considered all three elements of the “good cause”
test and found that good cause existed to allow the requested exam. Notably, the
court considered the “less intrusive means” element and found that, although there
are “a number of avenues that could…potentially provide less intrusive means for
obtaining medical information without an examination…[t]he adequacy of these
measures must still be evaluated in light of the fair trial standard.” In re Ten
Hagen Excavating, Inc., 435 S.W.3d 859, 869-70 (Tex. App.—Dallas 2014). That
court went on to state:
In general, and particularly where the intended examination is not
intrusive, invasive or unnecessarily physically uncomfortable, parties
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are permitted to explore matters not covered by the opposing party's
examinations, make their own observations, and attempt to discover
facts that may contradict the opinions of the opposing party's expert
witnesses.
Id. at 870
As is also set forth in Reliable’s Petition, the 14th Court of appeals in
Houston (applying Rule 204.1) held that a trial court abused its discretion in
denying a motion for an independent psychological examination, finding that
“good cause for a psychological examination is established where the petitioner
intends to use expert medical testimony to prove a fact in controversy.” In the
interest of N.R.C. and L.A.C., 94 S.W.3d 799, 815 (Tex.App.—Houston [14th Dist.]
2002, pet. denied). It does not appear that this Houston court decision was
considered in Presson’s Response.
PRAYER
For these reasons and as set forth more fully in Relator’s Petition for Writ of
Mandamus, Relator asks that the Court issue a writ of mandamus directing Judge
Carter to vacate his orders of February 27 and May 5, 2015 and to enter an order
granting Relator’s Motion for Medical Examination of the Plaintiff.
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Respectfully submitted,
RAMSEY & MURRAY, P.C.
By:__________________________
Mark Ramsey
SBOT No. 16521700
Wayne Walters
SBOT No. 24029333
800 Gessner, Suite 250
Houston, Texas 77024
Phone: (713) 613-5400
Fax: (713) 613-5414
Attorneys for Relator,
RELIABLE COMMERCIAL
ROOFING ERVICES, INC.
CERTIFICATION
I certify that I have reviewed the petition and have concluded that every
factual statement made in the petition is supported by competent evidence included
in the appendix to the Petition for Writ of Mandamus or in the record.
________________________
Wayne Walters
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CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2013 and contains 1556 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in TRAP
9.4(i)(1).
________________________
Wayne Walters
CERTIFICATE OF SERVICE
I certify that, on the 29th day of June, 2015, I served electronically and/or by
certified mail, return receipt requested, a copy of this document on the following
parties:
a. Kurt B. Arnold, Caj D. Boatright and Cesar Tavares, ARNOLD & UITKIN
LLP, 6009 Memorial Drive, Houston, Texas 77007.
b. The Honorable Kyle Carter, Judge of the 125th District Court of Harris
County, Texas, 201 Caroline, 10th Floor, Houston, Texas 77002
________________________
Wayne Walters
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