in Re Bac Trac Plumbing, LP and Jose Grajales

ACCEPTED
01-15-00219-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/9/2015 5:11:52 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00219-CV

FILED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
COURT OF APPEALS 3/9/2015 5:11:52 PM
FOR THE 1ST DISTRICT OF TEXAS CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk

IN RE BAC TRAC PLUMBING, LP AND JOSE GRAJALES,

Relators.

RELATORS’ MOTION FOR EMERGENCY STAY OF TRIAL SETTING

ORIGINAL PROCEEDING FROM THE 215th DISTRICT COURT
OF HARRIS COUNTY, TEXAS,
THE HONORABLE ELAINE H. PALMER, PRESIDING

MUNSCH HARDT KOPF & HARR, P.C.
Stephen Gibson
State Bar No. 07866000
Tracy McCreight
State Bar No. 24037064
EMERGENCY RELIEF
KANE RUSSELL COLEMAN & LOGAN, PC REQUESTED
Chris C. Pappas
State Bar No. 15454300
Darrell R. Greer
State Bar No. 08413500

ATTORNEYS FOR RELATORS

PAGE 1 OF 11
MHDOCS 6000402_2 15565.1
 RELATORS’ MOTION FOR EMERGENCY STAY
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

I. INTRODUCTION
The underlying proceeding is a personal injury suit arising out of the

collision of a vehicle driven by Donna Dudley (“Plaintiff”) with a truck owned by

Bac Trac Plumbing, LP driven by Jose Grajales (the “Collision”). The underlying

suit is Donna Dudley v. Bac Trac Plumbing, LP and Jose Grajales, Cause No.

2013-12224 in the 215th District Court of Harris County, Texas filed February

28, 2013 (the “Underlying Suit”). The primary disputed issue in the Underlying

Suit is whether there exists a causal connection between the Collision and certain

damages claimed by Plaintiff. Bac Trac Plumbing, LP and Jose Grajales

(“Defendants” or “Relators” collectively) are the Defendants in the Underlying

Suit.

On February 27, 2015, Respondent, the Hon. Elaine H. Palmer, presiding

judge of the 215th District Court of Harris County, Texas (the “Trial Court”),

excluded testimony from Defendants’ only retained expert witnesses, Thomas D.

Greider, M.D. and Walter R. Sassard, M.D. (Exh. A hereto, the “Exclusion

Order”). The Exclusion Order provides that “all testimony and/or evidence

provided by Thomas D. Greider, M.D. and Walter R. Sassard, M.D. should be

excluded from trial.” The Underlying Suit is set for trial on a two-week trial

docket that begins on March 9, 2015. (Exh. B hereto, Order Resetting Trial).
PAGE 2 OF 11
MHDOCS 6000402_2 15565.1
When the parties appeared for a March 2, 2015, docket call Plaintiff announced

ready. Defendants moved for the continuance allowed under Texas Rule of Civil

Procedure 193.6(c). (Exh. C hereto, Defendants’ Motion for Continuance).

Enforcing its previous Docket Control Order, the Trial Court denied the motion for

continuance. (Exh. D hereto, Transcript on Motion for Continuance).

By its Petition for Writ of Mandamus (“Writ Petition’) filed herewith,

Defendants seek to vacate the Trial Court’s Exclusion Order as an abuse of

discretion because good cause for any failure of Defendants to timely make,

amend, or supplement its expert designations exists. Moreover, Plaintiff is neither

unfairly surprised nor prejudiced by any alleged deficiency in Defendants’

discovery response. Defendants further seek to vacate the Trial Court’s March 2,

2015 denial of Defendants’ Motion for Continuance because trial will be a

meaningless exercise. As explained more fully in the Writ Petition, the Exclusion

Order for Defendants’ medical expert effectively eviscerates Defendants’ ability to

present their defense that the Collision was not the cause of all or part of the

damages claimed by the Plaintiff.

Emergency relief to stay trial set for as early as March 10, 2015 is necessary

because, unless a stay of the trial setting is granted, Defendants will be forced to

proceed at trial without an expert to testify disputing Plaintiff’s damages.

Defendants must not be forced to suffer such irreparable injury as a result of the

PAGE 3 OF 11
MHDOCS 6000402_2 15565.1
Trial Court’s failure to comply with relevant guiding legal principles. Emergency

relief staying the proceedings in the Underlying Suit is also necessary to preserve

this Court’s jurisdiction to issue extraordinary writs. Unless the proceedings are

stayed, the relief requested in the Writ Petition will become moot. In re New

Century Mtg. Corp. of California, No. 08-03-00521-CV, 2004 WL 100506, *1

(Tex. App. –El Paso 2004, orig. proceeding).

II. IDENTITY OF PARTIES

Petitioner is Bac Trac Plumbing, LP and Jose Grajales (“Defendants” or

“Relators” collectively).

The real party in interest is Donna Dudley (“Plaintiff”), Plaintiff in the

Underlying Suit.

The Respondent is Judge Elaine H. Palmer, presiding judge of the 215th

District Court of Harris County, Texas (the “Trial Court”).

III. STATEMENT OF FACTS

On February 27, 2015, the Trial Court clearly abused its discretion by

granting Plaintiff’s Motion to Exclude Thomas D. Greider, M.D. and Walter R.

Sassard, M.D. On March 2, 2015, the Trial Court again abused its discretion in

denying Defendants’ Motion for Continuance allowed by Texas Rule of Civil

Procedure 193.6(c).

PAGE 4 OF 11
MHDOCS 6000402_2 15565.1
 Without emergency relief, Defendant will be forced to trial as early as

Tuesday, March 10, 2015 with virtually no defense to Plaintiff’s claims for

damages. The Trial Court’s abuses of discretion in granting the Motion to

Exclude, as further described in Relators’ Writ Petition, resulted in an Order being

issued that, absent emergency relief by this Court, will substantially prejudice

Defendants and cause Defendants to suffer an irreparable injury. The Writ Petition

is incorporated herein by reference the same as if set forth at length.

This Motion is presented to stay the trial of the Underlying Suit. This trial is

currently set on the two-week docket beginning March 9, 2015, and may be called

for trial at any time, and as early as March 10, 2015. A stay of those proceedings

is necessary to prevent the relief requested in the Writ Petition from becoming

moot and is thereby necessary to preserve the jurisdiction of this Court over the

Writ Petition that Defendants file concurrently with this Motion.

IV. CERTIFICATE OF COMPLIANCE ATTACHED

Relators attach a certificate of compliance certifying that on March 9, 2015,

in accordance with Texas Rule of Appellate Procedure 52.10(a), it notified the real

party in interest and the respondents by electronic mail, facsimile, and/or telephone

call that a motion for temporary relief had been filed.

PAGE 5 OF 11
MHDOCS 6000402_2 15565.1
 V. AUTHORITY TO ISSUE AND NECESSITY OF EMERGENCY
STAY TO PRESERVE STATUS QUO

This Court may grant temporary relief pending its determination of

Defendants’ Petition. Tex. R. App. P. 52.10(b). Mandamus is the most appropriate

remedy because the deprivation is one that cannot be corrected on appeal and will

affect Defendants’ ability to defend this case at trial. See In re Allied Chemical,

227 S.W.2d 652, 658 (Tex. 2007); see also Able Supply Co. v. Moye, 898 S.W.2d

776, 772 (Tex. 1995). This emergency stay is necessary to preserve this Court’s

jurisdiction to consider the merits and to maintain the status quo until the Petition

can be heard and decided. See In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San

Antonio 1995, orig. proceeding).

As more thoroughly demonstrated in the Writ Petition, Defendants are likely

to prevail as to the relief requested therein. Nevertheless, if Defendants are forced

to trial before this Court renders its decision on Defendants’ Petition, Defendants

will suffer irreparable harm.

The Trial Court’s Exclusion Order and denial of the 193.6 (c) continuance is

effectively a “death penalty” sanction. Defendants’ central defense is that the

Collision did not cause all or many of the injuries or conditions for which Plaintiff

seeks damages. By excluding the testimony of a medical expert necessary to

support this defense, the Trial Court has effectively made the trial an empty

exercise and waste of judicial resources. Without such an expert, Defendants’

PAGE 6 OF 11
MHDOCS 6000402_2 15565.1
ability to present a viable defense is so compromised that it must be subject to

immediate correction by writ of mandamus, not correction after a pro forma trial.

VI. CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons as well as those more fully stated in the Writ

Petition, good cause exists for this Court to grant this emergency request for

temporary relief. See Tex. R. App. P. 52.10. Defendants are likely to prevail on

the merits of the Writ Petition filed simultaneously herewith. Without a stay of the

Underlying Suit pending resolution of the Writ Petition, Defendants will be forced

to trial without an expert witness to dispute Plaintiff’s claim for damages and the

jurisdiction of this Court over the Writ Petition may be lost due to the relief

requested in the Writ Petition becoming moot.

For these reasons, Defendants request this Court enter an order staying the

trial setting of the Underlying Suit to maintain the status quo of the parties and

preserve this Court’s jurisdiction pending consideration of the merits of the Writ

Petition.

PAGE 7 OF 11
MHDOCS 6000402_2 15565.1
Dated: March 9, 2015 Respectfully submitted,

By: /s/ Stephen Gibson
Stephen Gibson
State Bar No. 07866000
Tracy McCreight
State Bar No. 24037064
MUNSCH HARDT KOPF & HARR, P.C.
500 N. Akard Street, Suite 3800
Dallas, TX 75201-6659
United States
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
sgibson@munsch.com
tmccreight@munsch.com

-and-

Chris C. Pappas
State Bar No. 15454300
Darrell R. Greer
State Bar No. 08413500
KANE RUSSELL COLEMAN & LOGAN, PC
919 Milam, Suite 2200
Houston, TX 77002
Telephone: (713) 425-7400
Facsimile: (713) 425-7700
cpappas@krcl.com
dgreer@krcl.com

ATTORNEYS FOR BAC TRAC
PLUMBING, LP and JOSE
GRAJALES

PAGE 8 OF 11
MHDOCS 6000402_2 15565.1
 CERTIFICATE OF CONFERENCE
I certify that I concurrently conferred with Nomaan Husain/Leigh S.
Montgomery by email correspondence and have attempted in good faith to reach
an agreement about the foregoing Motion. We have been unable to reach an
agreement because opposing counsel opposes the relief Relators seek herein.

/s/ Darrell Greer
Darrell Greer

PAGE 9 OF 11
MHDOCS 6000402_2 15565.1
 CERTIFICATE OF SERVICE
I hereby certify that on March 9, 2015, I served a true and correct copy of
the foregoing document on all parties listed below as follows:

Via E-file, Email, and First Class Via EMail and First Class Mail
Mail
Honorable Elaine H. Palmer
Nomaan Husain Presiding Judge, 215th District
Leigh S. Montgomery Court, Harris County, Texas
YOUNG & HUSAIN, PLLC Harris County Civil Courthouse
2700 Post Oak Blvd., Suite 1220 201 Caroline, 13th Floor
Houston, Texas 77056 Houston, Texas 77002
nhusain@yhlawfirm.com Tricia_Griggs@justex.net
lmontgomery@yhlawfirm.com
Telephone: (713) 621-8900
Facsimile: (713) 621-8909

Attorneys for Donna Dudley

/s/ Tracy McCreight
Tracy McCreight

PAGE 10 OF 11
MHDOCS 6000402_2 15565.1
 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 52.10(a), I hereby certify that
on March 9, 2015, I notified the parties listed below by email, facsimile, telephone
call, and/or electronic filing service that a motion for temporary relief had been
filed:

Nomaan Husain Honorable Elaine H. Palmer
Leigh S. Montgomery Presiding Judge, 215th District
YOUNG & HUSAIN, PLLC Court, Harris County, Texas
2700 Post Oak Blvd., Suite 1220 Harris County Civil Courthouse
Houston, Texas 77056 201 Caroline, 13th Floor
nhusain@yhlawfirm.com Houston, Texas 77002
lmontgomery@yhlawfirm.com Tricia_Griggs@justex.net
Telephone: (713) 621-8900
Facsimile: (713) 621-8909

Attorneys for Donna Dudley

/s/ Tracy McCreight
Tracy McCreight

PAGE 11 OF 11
MHDOCS 6000402_2 15565.1
EXHIBIT A
 2/6/20155:18:26 PM
Chris Daniel - District Clerk
Harris County .
Envelope No: 406283,2
By,:SPENCER,JEANETTA
Filed: 2/6/20155:18:26 PM

DONNA DUDLEY
CAUSE NO. 2013-12224

§ IN THE DISTRICT COURT OF
P;;Xpx
§
§
VS. § HARRIS COUNTY, TEXAS
§
BAC TRAC PLUMBING, LP AND §
JOSE GRAJALES § 215th'JUDIC~ISTRICT

ORDER
(j
~
Q~

~
. Q~ •

ON THIS DAlE, the Court heard Plaintiffs Motion to Exclud~mas D. Greider, MD. and Walter

R. Sassard, MD .. After consideration of'the same, the Court is e~ opinion that Plaintiff's motion should
~
be granted. Q(f[p)
It is therefore, ORDERED, ADJUDGED AND DOOREED that Plaintiff's Motion to Exclude Thomas
. §::C/
D. Greider, MD. and Walter R. Sassard, MD is ~ED, and all testimony and/or evidence provided by

Thomas D. Greider, M.D. and Walter R. sassarb.D. should be excluded from trial in the above captioned
@
and numbered cause.

o
~

~
(f::I;t:£-:~ ,2015,

;{fJ JUDGE PRESIDlNG

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~

RECORDER'S MEMORAHOUM
ThiS Instrument Is of poor quality
at the time of Imaging
., ,

APPROVED AS TO FORM AND SU~STANCE:

YOUNG & HUSAIN, P.L.L.C.

By: lsi Leigh S. Montgomery
NOMAAN HUSAIN
State Bar No. 24000743
LEIGH S. MONTGOMERY
State Bar No. 24052214
2700 Post Oak Blvd. Suite 1220
Houston, Texas 77056 (1~
(713) 621-8900 telephone ""~
(713) 621-8909 facsimile
COUNSEL FOR PLAINTIFF ,,~
;if
Q~
,,~
CERTIFICATE OF ~VICE
@}
That on this the 6TIl day of February, 2015, I here~rtify that a true and correct copy of the
above and foregoing instrument was forwarded pursu8J1~ the Texas Rules of Civil Procedure as follows:
~~
ViaE-Filingand E-Service rF'~'
Mr. Chris C. Pappas ~
Mr. Darrell Greer g
Kane, Russell, Coleman & Logan, P~
919 Milam, Suite 2200 " (Q
Houston, Texas 77002
&~
(/~~

By: lsi Leigh S. Montgomery
~ LEIGH S. MONTGOMERY
(J55
». "~y

cfb~
~~

2
EXHIBIT B
 Case No. 201312224
ORTX

DUDLEY, DONNA * IN THE DISTRICT COURT OF
vs. *
* HARRIS COUNTY, TEXAS
BAC TRAC PLUMBING LP *
* 215th JUDICIAL DISTRICT

ORDER RESETTING TRIAL

This case is reset for TRIAL for the two week period beginning 03-09-2015.

If the case has not been reached by the second Friday after this date, the trial will be

reset. The parties are ordered to appear for a DOCKET CALL

on 03-02-2015 at 09:00 AM.

All previous pre-trial deadlines remain in effect, unless changed by the court.

If you have any questions concerning this order, please contact the Court

coordinator, TRICIA ELLIS-GRIGGS at (713) 368-6340.

Signed JUN 11 2014

FILE
Chris Daniel
D
District Clerk

ELAINE H PALMER
nme::_JJ..Up'~J~},=_~(;;-"~4
~_
Judge, 215TH DISTRICT COURT
~~d
BY.--717""'~~~2y~.;....-- Generated on: 06/11/2014

15454300
CHRIS C. PAPPAS
919 MILAM STREET SUITE 2200
HOUSTON, TX 77002 JCVF13
rev 033094

RECORDER'S MEMORANDUM
This Instrument IS of poor quality
at the lime of Imaging
 Case No. 201312224
ORTX
DUDLEY, DONNA * IN THE DISTRICT COURT OF
*
vs.
* HARRIS COUNTY, TEXAS
BAC TRAC PLUMBING LP *
* 215th JUDICIAL DISTRICT

ORDER RESETTING TRIAL

This case is reset for TRIAL for the two week period beginning 03-09-2015.

If the case has not been reached by the second Friday after this date, the trial will be

reset. The parties are ordered to appear for a DOCKET CALL

on 03-02-2015 at 09:00 AM.

All previous pre-trial deadlines remain in effect, unless changed by the court.

If you have any questions concerning this order, please contact the Court

coordinator, TRICIA ELLIS-GRIGGS at (713) 368-6340.

Signed JUN 11 2014

ELAINE H PALMER
Judge, 215TH DISTRICT COURT
Generated on: 06/11/2014

24000743
NOMAAN HUSAIN
2700 POST OAK BLVD, SUITE 1220
HOUSTON, TX 77056 JCVF13
rev 033094
EXHIBIT C
 3/2/2015 8:13:04 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4324083
By: GAYLE FULLER
Filed: 3/2/2015 8:13:04 AM

CAUSE NO. 2013-12224
DONNA DUDLEY § TN THE DISTRICT COURT OF
§
V. hARRIS COUNTY. TEXAS

SAC TRAC PLUMBING. LP AND §
JOSE GRAJALES TH
215
§ JUDICIAL DISTRICT

DEFENDANTS’ MOTION FOR CONTINUANCE

TO TIlE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendants. Bac Trac Plumbing, LP and Jose Grajales, in this case and

files this Motion for Continuance and would respectfully show unto the Court the following:

1. This lawsuit is for personal injuries sustained by the Plaintiff from an automobile

accident. It is the Defendants contention that all her claimed medical treatment and

related costs were not solely caused by this accident. Defendants’ disagree with Plaintiff

concerning the extent of’ injuries.

2. The case is currently set on the Court’s trial docket for the two-week period beginning on

March 9,2015.

3. In a recent hearing, the Court granted a Motion to Strike testimony of medical witnesses

that are critical to the case for the Defendants. Plaintiff claims that this witness testimony

is a surprise to them, and it may prejudice their case. Texas Rules of Civil Procedure

indicate that when this situation occurs, the Court’s proper remedy is to “...grant a

continuance or temporarily postpone the trial to allow ... opposing parties to conduct

discovery regarding any new information presented...” TRCP 193.6(c).

4. Defendants’ are asking this Court usc its discretion to follow this Rule of Procedure.

3409568 (64280.00088000)
 5. Proceeding with trial at this time, without the benefit of the medical expert witness is

extremely prejudicial to the Defendants. Such a trial would create an extreme hardship to

the Defendants, and would likely result in a verdict that is unjust and unfair to the

Defendants because ihe jury would not receive all the evidence necessary for them to

make a proper award.

6. Plaintiff has already filed Motions in Limine based upon the Court’s action to strike the

medical expert’s testimony to ask that no argument or proof be made concerning

plaintiffs past history of medical injuries, or the causation of her complaints, or the

reasonableness of her treatment or the costs associated therewith. Such handicaps to the

Defendants’ case are extremely prejudicial, would result in a manifest unjustness, and

prevent Defendants from their guaranteed right to fair jury trial in this matter,

7. This Motion is not filed for the purposes of delay only, but is filed only so that Justice

may be done.

8. Based on the forgoing, the Defendants respectfully request the ease be continued from its

current trial setting until a time in the future that allows plaintiff to depose the

Defendant’s medical expert, if they so choose, thus preventing any surprise or prejudice

to the Plaintiff in this matter.

WHEREFORE, PREMISES CONSIDERED, Defendants Bac Trac Plumbing. Lp, arid

Jose Grajales respectfully request the Court continue the current trial setting of the case.

Respectfully submitted,

KANE RUSSELL COLEMAN & LOGAN, PC

9
3409568 (64280.00088.000)
 __

- .—

/ /
Bv:/ 2:- -

Chris C. Pappas
State Bar No. 15454300
Darrell R. Greer
State Bar No. 08413500
919 Milam, Suite 2200
Houston, Texas 77002
Ph: (713) 425-7400
Fax: (713) 425-7700
Email: dgreer1krcl.corn
COUNSEL FOR DEFENDANTS BAC TRAC
PLUMBING, LP AND JOSE CRAJALES

VERIFICATION

STATE OF TEXAS §
COUNTY OF HARRIS §
BEFORE ME. the undersied Notary Public, on this day personally appeared Darrell R.

Greer, who, being by me duly sworn on his oath, deposed and said that he has read the above and

foregoing Defendants Motion for Continuance and that the statements contained therein are true

and correct.
7:

-
Z.- /
£ V - / - --
-.

Darrell R. Greer

///
SUBSCRIBED AND SWORN TO BEFORE ME on this the day of
/0)1*/1 ,2015, to certify which witness my hand and seal of office.

A /1 -/ —H ——

ç4 MyComm.EfltO1

3
3409568 (6428000088.000)
 CERTIFICATE OF CONFERENCE

Afler drafting this motion the movant and respondent have conferred with each other and in good
faith have attempted to resolve the matter; and

a. Respondent has agreed and is unopposed to Movant’s request under this
motion.

b. X_____ This matter has been communicated with respondent’s office and
-r
respondent does not agree to the Motion. -.
/

1/ / 7

Darrell R. Greer

CERTIFICATE OF SERVICE

I hereby certify that a tme and correct copy of the above and foregoing document has
been c-mailed, and faxed to counsel on this the Second day of March, 2015:

Nomaan Husain
Young & Husain, PLLC
2700 Post Oak Blvd., Suite 1220
Houston, Texas 77056

/ /
/7
/

Cis C. Páppas/Dae1I R. Greer -

4
3409568 (64280.00088.000)
EXHIBIT D
 1

1 REPORTER'S RECORD

2 COURT CAUSE NO. 2013-12224

3 DONNA DUDLEY, ) IN THE DISTRICT COURT
PLAINTIFF, )
4 )
)
5 VS. ) HARRIS COUNTY, TEXAS
)
6 BAC TRAC PLUMBING, LP, )
DEFENDANTS. ) 215TH JUDICIAL DISTRICT
7

8

9 *********************************

10 MOTION FOR CONTINUANCE

11 *********************************

12 On the 2nd day of March, 2015, the following

13 proceedings came on to be heard in the above-entitled and

14 numbered cause before the Honorable Elaine Palmer, Judge

15 Presiding, held in Houston, Harris County, Texas.

16

17 Proceedings reported by computer-aided

18 transcription/stenograph machine.

19

20

21

22

23

24

25
 2

1 A P P E A R A N C E S

2

3 Mr. Nomaan Husain
SBOT NO. 24000743
4 YOUNG & HUSAIN, PLLC
2700 Post Oak Blvd, Suite 1220
5 Houston, Texas 77056
Telephone: (713) 621-8900
6 ATTORNEY FOR THE PLAINTIFF

7 - AND -

8 Mr. Darrell Greer
SBOT NO. 08413500
9 Mr. Christopher Pappas
SBOT NO. 15454300
10 KANE RUSSELL COLEMAN & LOGAN PC
919 Milam Street, Suite 2200
11 Houston, Texas 77002
Telephone: (713) 425-7400
12 ATTORNEYS FOR THE DEFENDANTS

13

14

15

16

17

18

19

20

21

22

23

24

25
 3

1 P R O C E E D I N G

2 THE COURT: We're on the record in Cause No.

3 2013-12224, Donna Dudley vs. Bac Trac Plumbing, LP. Will

4 the attorneys identify themselves for the record and the

5 parties they represent?

6 MR. HUSAIN: Nomaan Husain for Plaintiff

7 Donna Dudley. We're announcing ready for trial.

8 MR. GREER: My name is Darrell Geer. I'm

9 here for the Defendants. We have a motion for

10 continuance.

11 MR. PAPPAS: Chris Pappas, here for the

12 Defendants.

13 THE COURT: Okay.

14 MR. GREER: Your Honor, we would like to

15 present the motion for continuance. I have a copy for the

16 Court. You may remember, we were here last Friday in

17 regards to the motion to strike our expert witnesses in

18 this case.

19 And as a result of your ruling there, we

20 feel that we must file this motion and that we must make a

21 record; and our motion for continuance is basically a

22 result of that hearing.

23 Your Honor, we'd like to remind you

24 that -- about a few things. This case is all about

25 personal injury for the Plaintiff from an automobile
 4

1 accident; and the Defendants contend that all of the

2 medical treatment and related costs were not caused solely

3 from this accident.

4 We disagree with the claims about the

5 extent of the injuries. Of course, we're set on a docket

6 that begins March the 9th.

7 Recently, the Court granted the motion

8 to strike; and we believe that if -- the Plaintiff claims

9 surprise and we believe that if they really were surprise,

10 then the proper remedy would be to continue it until at

11 the time of trial.

12 We believe that it would be extremely

13 prejudicial for the case to go forward without the benefit

14 of a medical expert witness because that's what this case

15 is all about. This would be an extreme hardship to the

16 Defendants, and it would result in an unjust and unfair

17 verdict.

18 In fact, the Plaintiff filed, yesterday,

19 this motion in limine based upon the Court's action to

20 strike our expert's testimony and so that no argument will

21 be proof, proof could be made concerning the Plaintiff's

22 past history of multiple medical injuries or causation of

23 her complaints or the reasonableness of her treatment or

24 the costs associated with that.

25 Such handicaps for the Defendants' case
 5

1 is extremely prejudicial and it would be extreme and

2 unjust. So, we request the case be continued.

3 I would like to remind the Court, if you

4 do not mind, that in regards to the testimony of our

5 expert, the Defendants timely had designated Dr. Greider

6 as our expert witness in respect to our IME and for him to

7 testify; and we tendered him for deposition at the time,

8 of course, that we designated him.

9 The Plaintiffs did not request his

10 deposition at any time. Dr. Greider became unavailable;

11 and so last fall, we named Dr. Sassard, who is his cohort,

12 his colleague, in the same medical group, to perform the

13 IME and to testify also; and we tendered Dr. Sassard for

14 his deposition.

15 Again, the Plaintiffs have never

16 requested the deposition of either of these gentlemen; and

17 we believe and we filed a case with the Court that

18 supports substitution of a medical expert witness for good

19 cause.

20 And to show there was good cause, we

21 have, of course, filed affidavits from both Dr. Greider

22 and Dr. Sassard to show the reason for this substitution.

23 I think the case law calls him a second-runner expert.

24 The Court denied our motion for an IME.

25 We then produced a report from Dr. Sassard, based on his
 6

1 review of the medical. The Plaintiffs, of course, moved

2 to strike it under prejudice and surprise. Under these

3 circumstances and, of course, under the Court's ruling, we

4 respectfully request that the Court continue the trial and

5 allow the Plaintiffs time to do further discovery, if they

6 choose to do so.

7 They can take the deposition of our

8 experts, if they wanted to do so, which they have not

9 asked yet; because either at this setting or any future

10 setting, we have to put on that evidence. That's only

11 fair, and it's only right. Failure would be manifestly

12 unjust to the Defendants.

13 So as a matter of fairness and equity

14 for both sides, we ask for this continuance; and we ask

15 that you allow them to discover, if they choose to do so,

16 the further opinions beyond the report of our expert and

17 we respectfully request you continue the case and allow

18 our expert to testify.

19 THE COURT: Okay, Mr. Husain.

20 MR. HUSAIN: Your Honor, I'm not going to

21 rehash the motion to strike the expert's testimony that we

22 had on Friday, but I would like to address what Mr. Greer

23 just said.

24 First of all, he's ignored the fact that

25 the Court did -- struck the experts because he failed to
 7

1 comply with the agreed docket control order, which we both

2 agreed to and submitted to the Court. He talks about he

3 timely submitted Dr. Greider; but he forgets the fact that

4 in his own designation, he said that Dr. Greider's

5 opinions will be provided. I think that was on Page 3 on

6 the second paragraph. No opinions by Dr. Greider were

7 ever provided.

8 In addition, we object to this motion

9 because first, it is not sufficiently in advance of

10 trial. We're here now at the docket call for this case,

11 and he's filed this motion at 8:13 a.m. today. So we

12 would say that the Court shouldn't even consider because

13 it is not sufficiently in advance of trial.

14 His motion is based on the fact that a

15 continuance should be granted so that Plaintiffs can

16 depose his expert. On Friday, the Court struck the

17 Defense expert. So as of now, the Defense has no expert.

18 So there's nobody for us to depose.

19 What he would have to do is file a

20 motion to either re-consider the motion to strike, get his

21 expert reinstated, and then file the motion for

22 continuance. He's assuming that he has an expert. He has

23 no expert.

24 And the last basis that he's discussed

25 with the Court is, "only fair and right." It is fair and
 8

1 right for Ms. Dudley to have been injured for all of these

2 years, to have this case on file for two years and here on

3 the eve of trial, Mr. Greer is trying to say that because

4 of his failure to timely designate and provide opinions

5 and for his failure to file the IME until January of 2015,

6 the Plaintiff should be delayed her day in court?

7 We think the only fair and right thing

8 to do is for the Court to enforce the DCO, as it did on

9 Friday, deny the motion for continuance, and call this

10 matter to trial, which Plaintiffs are ready to proceed to

11 trial.

12 Thank you, Your Honor.

13 MR. PAPPAS: Your Honor, could I add one

14 point?

15 THE COURT: Yes.

16 MR. PAPPAS: The main thing that we're here

17 today is to let the Court know, just so the record is

18 clear and Your Honor -- because one thing, I've been doing

19 this for over three decades. I do not believe in

20 sandbagging any court -- there is case law on point that

21 we think we've cited to Your Honor.

22 We believe that the motion and the

23 effort on the part of opposing counsel, with all due

24 respect, is leading the Court down a path that is clear

25 error. We think it's error that may require us -- and I'm
 9

1 simply sharing with you 'cause I'm just a straightforward

2 guy -- that we have to take this issue up.

3 Because what we'd hate to do, for

4 everybody, is to re-try -- is to try this case more than

5 once because of the circumstances.

6 But we feel confident in saying that the

7 rules and the case law that we've provided and presented

8 to Your Honor, supports the proposition that a continuance

9 is proper.

10 He had more than ample time since

11 November to take a deposition; and, actually, he chose not

12 to do that. And we want to make it clear to the Court,

13 we're not citing this because there's no basis.

14 I will tell you, I practiced law in

15 Harris County for over three decades. I never had a

16 similar situation in which the Judge on whatever side of

17 the case that I was on, that the Court didn't grant a

18 continuance to allow the deposition to be taken and then

19 to have the case reset, within usually 60 days. Now,

20 that's the norm. I'll simply state that, based on my

21 experience.

22 THE COURT: Okay.

23 MR. GREER: And Your Honor, if I may say one

24 last thing? Mr. Husain is correct. We did not supply a

25 supplemental report from Dr. Greider because we withdrew
 10

1 Dr. Greider. We supplied the supplemental report from

2 Dr. Sassard, who was the second person who we had

3 substituted in.

4 MR. HUSAIN: Dr. Sassard's report was

5 provided to us last week, Your Honor. We would ask the

6 Court to enforce the DCO, and if they want to take this up

7 on appeal, they can take it up on appeal; but we believe

8 the Court was correct in its ruling.

9 They cannot pick and chose their

10 arguments. They are trying to just argue that the

11 substitution was proper. That's the only case that was

12 provided. They glossed over the fact that they never

13 provided us an opinion.

14 THE COURT: Okay.

15 MR. GREER: And again, the rules provide

16 continuance is an appropriate remedy.

17 MR. HUSAIN: That's just rewarding them for

18 their failure to comply with the docket control order and

19 shifting the burden on to us. They did not timely give us

20 the opinions, and that's why the Court struck their

21 expert.

22 THE COURT: Counsels, you-all agreed to -- I

23 do not give you dates. You-all agreed to your scheduling

24 order back on May 21st of 2013; and the deadlines, you-all

25 set the deadlines. Discovery was to end May 16th, 2014.
 11

1 You-all were set for docket call on June

2 the 9th, 2014, but we didn't reach you-all. We did

3 another resetting, but we didn't extend the discovery or

4 any of the deadlines. All the deadlines remain in

5 effect. I do not see a Rule 11. Was there a Rule 11

6 extending anything?

7 MR. HUSAIN: No, Your Honor.

8 MR. GREER: No, Your Honor. The trial date

9 was moved because of an agreed motion for continuance, at

10 least that's what is in my file. I did not think it was

11 because the Court did not reach us.

12 This was an agreed docket control. We

13 did have a docket control order, and we did have a second

14 control order from the Court pertaining to the trial date.

15 THE COURT: Now, we did send you out, on June

16 11th, 2014, a new trial date setting it for today.

17 MR. GREER: That's correct.

18 THE COURT: It says, "All previous pretrial

19 deadlines remain in effect unless changed by the Court,"

20 and the Court did not change anything. We sent you out a

21 reminder notice in January. So as of right now, I'm not

22 going to the grant your motion for continuance.

23 If we get to you, regular panel or large

24 panel?

25 MR. HUSAIN: Regular panel is fine, Your
 12

1 Honor.

2 MR. GREER: For the record, Your Honor,

3 you're denying the motion for continuance?

4 THE COURT: Yes. The length of the trial

5 would be?

6 MR. HUSAIN: So on Friday, Mr. Greer made an

7 additional admission for the Court that they are not

8 disputing liability. Assuming that's correct, we're not

9 going to have to subpoena people on liability. I just

10 want to make sure that's still their position because

11 that's going to affect the length of the trial.

12 MR. GREER: Well, Your Honor, this trial, it

13 sounds like -- actually, this is a case of liability. I

14 said that before, and I'm saying that now. This is a case

15 of liability.

16 And apparently, if you're not going to

17 allow us to put on any evidence about damages and not

18 putting on anything about liability, it probably will be a

19 very short trial. I am not stipulating liability. I do

20 not have authority to do that for my client.

21 In fact, my client specifically told me

22 that I could not do that. I will tell the Court that my

23 driver has admitted he ran the red light and that's

24 certainly no surprise. He admitted that in his

25 deposition, and that's certainly no surprise to them.
 13

1 So how long is the trial going to be, if

2 that's the question? You know, if I put on no evidence

3 and put on no witnesses, it would be pretty short. I

4 would suspect no more than two or three days, under those

5 circumstances.

6 In fact, it will probably take us longer

7 to pick the jury than anything else. I hope not to be in

8 those circumstances.

9 MR. HUSAIN: I'm just trying to clarify. On

10 Friday, Mr. Greer stood up here and represented to the

11 Court that this is not a case about liability, that they

12 did it. They admit it, and he's not going to fight us on

13 liability. That, to me, is a judicial admission.

14 He did it before the Court in open

15 court. Is Mr. Greer going to fight us on liability? If

16 so, we need to subpoena the police officer and prepare the

17 case for liability and damages versus just damages.

18 I would just ask the Court to get a

19 clarification from the Plaintiff's counsel.

20 MR. PAPPAS: Can I speak to that? I think

21 clarification is, in terms of liability, do we know what

22 the accident facts are? Yes. Do we intend to present how

23 the accident happened? Our client will not agree to

24 stipulate. So the answer is, you need to prepare your

25 case on liability, however you might prepare it, Counsel.
 14

1 MR. HUSAIN: So Mr. Greer is withdrawing the

2 representation he made in open court on Friday?

3 MR. GREER: Your Honor, I'm not withdrawing

4 anything. I told you just a moment ago what our position

5 is. I have not made any judicial admissions. I'm telling

6 you how we're going to try our case and what the evidence

7 is; and however you want to clarify that -- I guess I'm

8 just trying to be honest.

9 THE COURT: Okay. Start subpoenaing whomever

10 you need to subpoena.

11 MR. HUSAIN: Thank you, Your Honor.

12 THE COURT: All right. And with that, unless

13 you-all have something else?

14 MR. GREER: I'm a little unclear about where

15 we were on the docket.

16 THE COURT: Well, I have one ahead of you

17 that says they are going to take five days and then I have

18 another one that is two to three days. So actually, I

19 will give you guys a call this week, Thursday, to let you

20 know where you fall in on the docket.

21 (Hearing concluded at 10:03 a.m.)

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 15

1 THE STATE OF TEXAS )

2 COUNTY OF HARRIS )

3 I, Cantrece A. Addison, Certified Shorthand

4 Reporter in and for the State of Texas, do hereby certify

5 that the above and foregoing contains a true and correct

6 transcription of all portions of evidence and other

7 proceedings requested in writing by counsel for the

8 parties to be included in this Volume of the Reporter's

9 Record, in the above-styled and numbered cause, all of

10 which occurred in open court or in chambers and were

11 reported by me.

12 I further certify that this Reporter's Record of

13 the proceedings truly and correctly reflects the exhibits,

14 if any, admitted by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $__________ and

17 will be paid by ________________________________________.

18 WITNESS MY OFFICIAL HAND this the 3rd day of

19 March, 2015.

20 /s/ Cantrece A. Addison, CSR
_____________________________________
21 CANTRECE A. ADDISON, TEXAS CSR #8236
Expiration Date: 12/31/2016
22 201 Caroline, 13th Floor
Houston, Texas 77002
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