ACCEPTED
01-15-00758-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/30/2015 5:59:44 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00758-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 10/30/2015 5:59:44 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
IN RE ADVANCED POWDER SOLUTIONS, INC.,
Relator.
Original Proceeding from Cause No. 2014-16020
In the 125th Judicial District Court of Harris County, Texas
The Honorable Kyle Carter, Presiding
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
KURT B. ARNOLD
SBN: 24036150
karnold@arnolditkin.com
J. KYLE FINDLEY
SBN: 24076382
kfindley@arnolditkin.com
KALA SELLERS
SBN: 24087519
ksellers@arnolditkin.com
ARNOLD & ITKIN LLP
6009 Memorial Drive
Houston, Texas 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
ATTORNEYS FOR REAL PARTY IN INTEREST,
TREMAINE HEWITT
IDENTITY OF PARTIES AND COUNSEL
In addition to the counsel identified in the Petition for Writ of Mandamus,
please note the appearance of additional counsel for the Real Party in Interest:
Kala Flittner Sellers
SBN: 24087519
ksellers@arnolditkin.com
ARNOLD & ITKIN LLP
6009 Memorial Dr.
Houston, TX 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
i
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL .......................................................................... i
TABLE OF CONTENTS ................................................................................................. ii
INDEX OF AUTHORITIES............................................................................................ iiv
ISSUES PRESENTED ................................................................................................... vii
INTRODUCTION ............................................................................................................1
STATEMENT OF FACTS .................................................................................................3
ARGUMENT .................................................................................................................6
I. Applicable Legal Standards ............................................................................. 6
A. Mandamus ............................................................................................. 6
B. Abuse of Discretion ............................................................................... 6
C. Compelled Independent Medical Examinations ................................... 8
II. The trial court properly exercised its discretion when it denied APS’s
motion to compel both an independent medical examination and a
functional capacity evaluation. ...................................................................... 10
A. APS did not provide the trial court with evidence that an
independent medical examination or functional capacity
evaluation would provide relevant, discoverable evidence. ............... 13
B. While there may be a nexus between Plaintiff’s injuries and an
independent medical examination, this prong alone is
insufficient to support a finding that the trial court abused its
discretion. ............................................................................................ 14
ii
C. APS must seek to obtain the desired information through less
intrusive forms of discovery before resorting to a compelled
medical examination.......................................................................... 155
1. Compelled medical examinations intrude on the injured
party’s privacy........................................................................... 18
2. APS did not provide the trial court with any indication of
what it was looking for that could not be determined
through less intrusive discovery. .............................................. 20
3. Good cause is always required before a court orders an
independent medical examination. ........................................... 22
D. APS failed at the trial court level, as well as in their writ for
mandamus, to show they are entitled to a functional capacity
exam and the trial court’s denial of such was an abuse of
discretion ............................................................................................. 26
E. Even Ten Hagen—the sole case cited by APS in its motion to
compel—supports the trial court’s decision...................................... 267
F. Any arguments made regarding Plaintiff’s economist Kenneth
McCoin are irrelevant and misguided. .............................................. 299
CONCLUSION .............................................................................................................31
PRAYER FOR RELIEF ..................................................................................................31
CERTIFICATE OF SERVICE ..........................................................................................33
CERTIFICATE OF COMPLIANCE ................................................................................344
APPENDIX.................................................................................................................. 35
iii
INDEX OF AUTHORITIES
CASES PAGE(S)
Acosta v. Tenneco Oil Co.,
913 F.2d 205 (5th Cir. 1990) ......................................................................... 25
Coates v. Whittington,
758 S.W.2d 749 (Tex. 1988) ..................................................................passim
CSR Ltd. v. Link,
925 S.W.2d 591 (Tex. 1996) ........................................................................... 6
Diaz v. Con-Way Truckload, Inc.,
279 F.R.D. 412 (S.D. Tex. 2012) .................................................................. 24
Gavin v. Hilton Worldwide, Inc.,
291 F.R.D. 161 (N.D. Cal. 2013) .................................................................. 23
Ginsberg v. Fifth Court of Appeals,
686 S.W.2d 105 (Tex. 1985) ........................................................................... 6
Hardy v. Riser,
309 F. Supp. 1234 (N.D. Miss. 1970) ........................................................... 12
IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp.,
938 S.W.2d 440 (Tex. 1997) ..................................................................... 7, 20
In re Bell Hot Shot Co.,
No. 14–13–00877–CV, 2014 WL 260116
(Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig. proceeding)
(mem. op.) ..........................................................................................16, 18, 24
In re Buch,
05-98-01665-CV, 1998 WL 908843
(Tex. App.—Dallas Dec. 31, 1998, no pet.) ............................................15, 18
In re Caballero,
36 S.W.3d 143 (Tex. App.—Corpus Christi 2000, orig.
proceeding) ..............................................................................9, 11, 14, 16, 25
iv
In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379 (Tex. 2005) ........................................................................... 7
In re Click,
442 S.W.3d 487
(Tex. App.—Corpus Christi 2014, orig. proceeding)....................9, 11, 14, 18
In re Commitment of Hatchell,
343 S.W.3d 560 (Tex. App.—Beaumont 2011, orig. proceeding) ................. 8
In re CSX Corp.,
124 S.W.3d 149 (Tex. 2003) ........................................................................... 6
In re Dallas Group of Am., Inc.,
434 S.W.3d 647 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ............... 6, 8
In re H.E.B. Grocery Co., L.P.,
13-15-00254-CV, 2015 WL 3637775
(Tex. App.—Corpus Christi June 11, 2015, no pet.)...............6, 7, 8, 9, 18, 20
In re Lambdin,
No. 07–03–0328–CV, 2003 WL 21981975
(Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding) .............................. 12
In re Le,
335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, no pet.) .......... 7, 20
In re Odyssey Healthcare, Inc.,
310 S.W.3d 419 (Tex. 2010) ........................................................................... 6
In re Prudential Ins. Co. of Am.,
148 S.W.3d 124 (Tex. 2004) ........................................................................... 6
In re Sanders,
153 S.W.3d 54 (Tex. 2004) ............................................................................. 7
In re Ten Hagen Excavating, Inc.,
435 S.W.3d 859 (Tex. App.—Dallas 2014, no pet.) ..............................passim
v
In re Thuesen,
14-13-00174-CV, 2013 WL 1461790
(Tex. App.—Houston [14th Dist.] Apr. 11, 2013, no pet.) .................7, 17, 24
In re Transwestern Publ’g Co.,
96 S.W.3d 501
(Tex. App.—Fort Worth 2002, orig. proceeding) .........................9, 11, 14, 22
Marroni v. Matey,
82 F.R.D. 371 (E.D. Pa. 1979) ...................................................................... 16
Moore v. Calavar Corp.,
142 F.R.D. 134 (W.D. La. 1992) ................................................................... 25
Sadler v. Acker,
263 F.R.D. 333 (M.D. La. 2009) ................................................................... 23
Schlagenhauf v. Holder,
379 U.S. 104 (1964)................................................................................passim
Sherwood Lane Associates v. O'Neill,
782 S.W.2d 942 (Tex. App.—Houston [1st Dist.] 1990, no writ) ................ 23
Stinchcomb v. United States,
132 F.R.D. 29 (E.D. Pa. 1990) ...................................................................... 12
Storms v. Lowe’s Home Centers, Inc.,
211 F.R.D. 296 (W.D. Va. 2002) ............................................................29, 30
Teche Lines v. Boyette,
111 F.2d 579 (5th Cir. Miss. 1940) ............................................................... 12
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ........................................................................... 6
STATUTES AND RULES
Tex. R. App. P. 52.3(k)(1) ....................................................................................... 20
Tex. R. Civ. P. 204.1 ..................................................................................1, 8, 10, 11
vi
ISSUES PRESENTED
1. Good cause is required to compel an independent medical examination. To
show good cause, the movant must seek the desired information through less
intrusive means before compelling an examination. Plaintiff disclosed his
medical records, a list of treating physicians, and reports from expert
witnesses; however, APS did not show any good cause and had not deposed
Plaintiff’s treating physicians or any experts, or provided any evidence to the
trial court that it exhausted less intrusive means of discovery before moving
to compel. Was it within the trial court’s broad discretion to deny APS’s
motion to compel both an independent medical exam and a functional
capacity exam?
2. Was APS legally entitled to compel Hewitt to submit to a functional
capacity exam?
vii
INTRODUCTION
Near the inception of discovery and before any depositions were taken,
Relator, Advanced Powder Solutions, Inc. (“APS”) demanded that Real Party in
Interest, Tremaine Hewitt, undergo both an independent medical examination as
well as a functional capacity evaluation by two of APS’s experts. Because courts
protect an individual’s right to privacy, before a party can be compelled to undergo
a medical examination—or in this case, both a medical examination and a
functional capacity evaluation—the party requesting that examination must show
“good cause.” Tex. R. Civ. P. 204.1; Coates v. Whittington, 758 S.W.2d 749, 753
(Tex. 1988). In order to satisfy the good cause standard, a party seeking the
examination must show, among other things, that the information sought cannot be
obtained through means that are less intrusive than the compelled examination.
Coates, 758 S.W.2d at 753. APS did not attempt to show that it could not obtain
information through less intrusive means, but rather, argued to the trial court as it
does to this court, that good cause exists because “[t]here is nothing equitable
about allowing one party’s expert access to evidence while denying that
opportunity to the other party.” Pet. for Mandamus, 4. This argument misses the
point entirely, and fails to show any aspect of good cause.
In order for APS to prevail here, it must establish that the trial court’s
decision to deny its motion to compel was an abuse of discretion. This is a heavy
1
burden that APS cannot meet, especially in light of the fact that APS’s failure to
show good cause and only evidence to the trial court was a four-page motion citing
only a single, non-binding case from the Dallas Court of Appeals. MR67-70.
Additionally, APS’s arguments below and on mandamus are simply
conclusory allegations by the attorney. APS provides no evidence of why its
experts cannot opine without an independent medical examination and a functional
capacity exam—as most defense experts do. Thus, the trial court’s decision to deny
APS’s motion to compel was proper because APS provided the trial court with no
evidence to support its motion, and undeniably failed to show good cause. Further,
APS has failed to provide case law showing that it was entitled to compel a
functional capacity exam.
2
STATEMENT OF FACTS
This case arises from a serious accident which occurred on August 28, 2013,
wherein Tremaine Hewitt was working as an employee of APS. App. 1: Pl.’s First
Am. Pet., ¶ 9. Hewitt was required to stand on a ladder in order to pour magnesium
powder into a reactor. Id. While Hewitt was on the ladder, another APS employee
manipulated the reactor valves, which in turn caused a magnesium flash, knocking
Hewitt off the ladder and setting him on fire. Id. Hewitt was burned severely,
sustaining second and third degree burns over more than 22% of his body, as well
as orthopedic injuries. Id.; see also MR58-63 (photographs of Hewitt’s burn
injuries). Because of his injuries, Hewitt was eventually life-flighted from the
hospital to a burn unit, and underwent multiple surgeries while spending twenty-
nine days in the hospital. Id.
On March 20, 2015, Hewitt disclosed to APS that, among others, Angel
Roman, M.D. and Kenneth McCoin, Ph.D. would testify as experts in this matter.
MR7-8. Included in this disclosure was a 47-page report from Dr. Roman. MR11-
63. Dr. Roman’s report also contained a detailed 12-page summary of Hewitt’s
medical records. MR18-30. In the same disclosure, Hewitt also provided Mr.
McCoin’s report, an economist. MR64-66. McCoin’s report dealt only with
Hewitt’s earning capacity (both past and future). MR64. Nowhere in McCoin’s
3
report did McCoin state that his observations or conclusions were based on an in-
person examination of Hewitt. MR64-66.
Despite Hewitt’s disclosures and without deposing any treating physicians or
either expert, on May 7, 2015, APS moved to submit Hewitt to both an
independent medical examination as well as a functional capacity evaluation.
MR67-68. Mr. Hewitt received treatment from numerous healthcare providers as a
result of his injuries. Before attempting to depose any of these doctors to ascertain
information concerning Mr. Hewitt’s medical condition, APS filed a motion with
the trial court demanding that Mr. Hewitt undergo an independent medical
examination (“IME”) as well as a functional capacity evaluation (“FCE”).
Additionally, to date, APS has not deposed Dr. Roman nor Mr. McCoin.
Thus, Hewitt objected to APS’s requested IME and the FCE, because APS did not
seek less-intrusive means of obtaining information about Hewitt’s medical
condition prior to seeking to compel Hewitt to submit to these examinations as is
required by Texas law. Further, Hewitt argued APS failed to show it was legally
entitled to an FCE.
Given, among other things, the early state of the case, the trial court had no
indication that APS had complied with its obligation to first seek less intrusive
means of obtaining medical information. Thus, the trial court reviewed the request
4
for both an IME and a FCE and denied the requests. MR190. APS then filed the
pending petition for a writ of mandamus.
It should be noted that in its writ for mandamus review, APS addresses
issues surrounding alleged entitlement to an IME. APS fails to fully address that it
moved the trial court for an IME and FCE. APS does not provide any case law to
support that it is legally entitled to an FCE, because it cannot. APS cannot single
out its request for the IME alone for analysis of an abuse of discretion. These were
not separate motions, but a single request coupling both exams together as
“physical examinations.” MR67-70. This request, which was denied is the basis of
this mandamus proceeding.
5
ARGUMENT
I. Applicable Legal Standards
A. Mandamus
“Mandamus relief is available when a trial court has committed an abuse of
its discretion for which there is no adequate remedy by appeal.” In re Dallas
Group of Am., Inc., 434 S.W.3d 647, 650 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (citing In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010)).
See also In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863 (Tex. App.—
Dallas 2014, no pet.) (citing CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996))
(“Mandamus is an extraordinary remedy that is available only in limited
circumstances.”); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (same); In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (same); In re
H.E.B. Grocery Co., L.P., 13-15-00254-CV, 2015 WL 3637775, at *1 (Tex.
App.—Corpus Christi June 11, 2015, no pet.) (same). Additionally, the “heavy
burden” lies with the relator to establish both that the trial court abused its
discretion and that there is no adequate remedy by appeal. In re CSX Corp., 124
S.W.3d 149, 151 (Tex. 2003).
B. Abuse of Discretion
“The scope of discovery largely rests within the discretion of the trial court.”
Ten Hagen, 435 S.W.3d at 865 (citing Ginsberg v. Fifth Court of Appeals, 686
6
S.W.2d 105, 108 (Tex. 1985)). Thus, a trial court only “clearly abuses its discretion
if it reaches a decision that is so arbitrary and unreasonable that it amounts to a
clear and prejudicial error of law, or if it clearly fails to analyze the law correctly
or apply the law correctly to the facts.” H.E.B. Grocery, 2015 WL 3637775, at *1
(citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)). See
also In re Thuesen, 14-13-00174-CV, 2013 WL 1461790, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 11, 2013, no pet.) (same).
Additionally, “[a] trial court does not abuse its discretion if it bases its
decision on conflicting evidence and some evidence supports the trial court’s
decision.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011,
no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 445
(Tex. 1997)). Thus, “In determining whether the trial court clearly abused its
discretion, [the reviewing court] may not substitute [its] judgment for that of the
trial court.” Id. (citing In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004)). See also
Thuesen, 2013 WL 1461790, at *2 (“When reviewing the trial court’s decision for
an abuse of discretion, we may not substitute our judgment for that of the trial
court with respect to the resolution of factual issues or matters committed to the
trial court’s discretion.”); Ten Hagen, 435 S.W.3d at 865 (“In considering whether
a trial court has clearly abused its discretion with regard to a discovery order, the
reviewing court may not substitute its judgment for that of the trial court.”).
7
In other words, “Even if the reviewing court would have decided the issue
differently, it cannot disturb the trial court’s decision unless it is shown to be
arbitrary and unreasonable.” Walker, 827 S.W.2d at 839–40. Instead, the “relator
must establish that the trial court could reasonably have reached only one
decision.” Ten Hagen, 435 S.W.3d at 866.
C. Compelled Independent Medical Examinations
“Rule 204.1(c) of the Texas Rules of Civil Procedure does not grant an
automatic right to obtain a physical or mental examination.”1 Ten Hagen, 435
S.W.3d at 866. Instead, “there must be greater showing of need to obtain a physical
or mental examination than to obtain other sorts of discovery.” Id. (citing
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)); see also H.E.B. Grocery, 2015
WL 3637775, at *3 (same).
Thus, to compel an independent examination, “[t]he party seeking the
examination must show both (1) good cause and (2) that the mental or physical
condition of a party is in controversy.” H.E.B. Grocery, 2015 WL 3637775, at *2
(citing Tex. R. Civ. P. 204.1(c)(1); Coates, 758 S.W.2d at 752; Ten Hagen, 435
S.W.3d at 866; In re Dallas Group, 434 S.W.3d at 651; In re Commitment of
Hatchell, 343 S.W.3d 560, 562-63 (Tex. App.—Beaumont 2011, orig.
proceeding)). “These requirements may not be met with ‘conclusory allegations’ in
1
Clearly APS’s contention that motions to compel a physical examination are routine is
erroneous and misleading. See Pet. for Mandamus, 4.
8
the movant’s pleadings or by “mere relevance to the case.” Id. (citing Coates, 758
S.W.2d at 751; In re Click, 442 S.W.3d 487, 491 (Tex. App.—Corpus Christi
2014, orig. proceeding); In re Transwestern Publ’g Co., 96 S.W.3d 501, 505 (Tex.
App.—Fort Worth 2002, orig. proceeding)).
“The ‘good cause’ element requires a balancing of the competing interests of
the party’s right of privacy and the movant’s right to a fair trial.” H.E.B. Grocery,
2015 WL 3637775, at *3 (citing Coates, 758 S.W.2d at 753; In re Click, 442
S.W.3d at 491). Coates—the leading Texas Supreme Court opinion on this issue—
lays forth the following three prongs that must be satisfied to show good cause: (1)
the examination is relevant to issues that are genuinely in controversy in the case
and the examination would produce, or would likely lead to, relevant evidence; (2)
a reasonable nexus exists between the condition in controversy and the
examination sought; and (3) it is not possible to obtain the desired information
through means that are less intrusive than a compelled examination. Coates, 758
S.W.2d at 751. See also In re Transwestern Publ’g, 96 S.W.3d at 505; In re
Caballero, 36 S.W.3d 143, 144 (Tex. App.—Corpus Christi 2000, orig.
proceeding). Thus, “the ‘good-cause requirement is not a mere formality, but is a
plainly expressed limitation on the use of that Rule.’” Ten Hagen, 435 S.W.3d at
868 (quoting Schlagenhauf, 379 U.S. at 117-18).
9
While Texas case law is somewhat sparse when it comes to Rule 204.1,
federal cases provide helpful analysis. Ten Hagen, 435 S.W.3d at 868 n.1 (citing
Coates, 758 S.W.2d at 751) (“The Texas Supreme Court has concluded that
because the Texas rule governing mental and physical examinations was originally
derived from Rule 35 of the Federal Rules of Civil Procedure, federal courts’
construction of Rule 35 is helpful to an analysis of the Texas rule.”). Thus, federal
decisions will be referenced throughout this response.
II. The trial court properly exercised its discretion when it denied APS’s
motion to compel both an independent medical examination and a
functional capacity evaluation.
The central issue on mandamus is whether the trial court abused its
discretion when it denied APS’s motion to compel examination requested by APS
which included an IME coupled with a FCE. Plaintiff argued below, and does so
again, that an IME should be denied because APS has failed to show good cause,
and that APS was not entitled to a FCE. Thus, Plaintiff will not address whether his
injuries are in controversy. But as this Court is aware, even if a party’s injuries are
in controversy, this alone is not “enough to compel a physical examination under
Rule 204.1. Rule 204.1 also requires that the trial court find ‘good cause’ for the
examination.” Ten Hagen, 435 S.W.3d at 867 (citing Tex. R. Civ. P. 204.1(c)).
“The ‘in controversy’ and ‘good cause’ requirements imposed by Rule 204.1
are the tools courts use in balancing the respective rights of the parties to privacy
10
and to a fair trial.” Id. But “these two requirements are not met ‘by mere
conclusory allegations of the pleadings-nor by mere relevance to the case.’” Id.
(quoting Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18.
This is precisely where APS failed. While whether or not Plaintiff’s injuries
are “in controversy” has not been contested, APS failed to meet its “affirmative
burden” to prove to the Trial court that “good cause” exists to perform not only
one, but two independent examinations. See Tex. R. Civ. P. 204.1(c); Coates, 758
S.W.2d at 751. “In the absence of an affirmative showing of both prongs of the
test, a trial court may not order an examination.” Ten Hagen, 435 S.W.3d at 866
(citing Coates, 758 S.W.2d at 751). Thus, the Trial court did not abuse its
discretion because APS did not make an affirmative showing of “good cause.”
As mentioned above, the following three prongs must be satisfied to show
good cause: (1) the examination is relevant to issues that are genuinely in
controversy in the case and the examination would produce, or would likely lead
to, relevant evidence; (2) a reasonable nexus exists between the condition in
controversy and the examination sought; and (3) it is not possible to obtain the
desired information through means that are less intrusive than a compelled
examination. Coates, 758 S.W.2d at 751. See also In re Transwestern Publ’g, 96
S.W.3d at 505; In re Caballero, 36 S.W.3d at 144; In re Click, 442 S.W.3d at 491.
11
Here, while APS never showed to the trial court what relevant evidence
would come from the examinations sought, more importantly—and dispositive
both here and to the Trial court—is the fact that APS has not shown the court it is
impossible to obtain the desired information through less intrusive means. In fact,
APS had not deposed any of Plaintiff’s treating physicians or experts. This fact
alone establishes that the trial court did not abuse its discretion.
But even if this Court disagrees, the trial court still has the discretion to deny
an independent medical examination even when good cause is established. See
Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990) (“Even when good
cause is shown, whether to order a proposed examination is committed to the
discretion of the court.”); Hardy v. Riser, 309 F. Supp. 1234, 1241 (N.D. Miss.
1970) (citing Teche Lines v. Boyette, 111 F.2d 579 (5th Cir. Miss. 1940)) (“Even
when the ‘good cause’ and ‘in controversy’ requirements are met, it is still in the
sound discretion of the trial court whether to order the examination.”).
Even Ten Hagen—the sole case APS relied on in its motion to compel—
acknowledges that “the ordinary meaning of the language of Rule 204.1 suggests
that the trial court is vested with discretion in determining whether to grant a
physical or mental examination under Rule 204.1.” Ten Hagen, 435 S.W.3d at 866.
See also In re Lambdin, No. 07–03–0328–CV, 2003 WL 21981975, at *4 (Tex.
App.—Amarillo Aug. 20, 2003, orig. proceeding) (“It is logical to construe the
12
word ‘may’ as vesting the trial court with some range of permissiveness or
discretion.”).
Thus, APS made no persuasive argument to the Trial court—and no
persuasive argument here—to justify an independent medical examination, let
alone establish that the trial court abused its discretion.
A. APS did not provide the trial court with evidence that an
independent medical examination or functional capacity
evaluation would provide relevant, discoverable evidence.
APS never once showed the trial court what relevant evidence it hoped to
gain from forcing Plaintiff to submit to an IME or FCE. In fact, the only arguments
APS made were (1) “As the examinations sought by Defendant are not intrusive,
invasive, or unnecessarily physically uncomfortable, they should be allowed,” and
(2) “To hold otherwise would deprive Defendant the right to explore and develop
evidence that supports theories that contradict the theories espoused by Plaintiff’s
retained experts and thus, deprive Defendant the right to a fair trial.” MR70.
These statements are nothing more than “mere conclusory allegations” and
do not establish this first prong. Ten Hagen, 435 S.W.3d at 867 (quoting Coates,
758 S.W.2d at 751) (holding that good cause is “not met ‘by mere conclusory
allegations of the pleadings-nor by mere relevance to the case.’”); see also
Schlagenhauf, 379 U.S. at 117-18. Thus, the trial court was well within its
discretion to deny APS’s motion to compel.
13
But even if this Court believes that APS satisfied the first prong, the trial
court still did not abuse its discretion because “[a] court is not required or even
permitted to order an examination simply because it finds the examination will
produce relevant evidence.” Ten Hagen, 435 S.W.3d at 869 (citing Schlagenhauf,
379 U.S. at 117-18). Additionally, “[t]he ‘good cause’ requirement of Rule 204.1
would be meaningless if mere relevance alone sufficed to establish good cause.”
Id. (citing Schlagenhauf, 379 U.S. at 117-18).
B. While there may be a nexus between Plaintiff’s injuries and an
independent medical examination, this prong alone is insufficient
to support a finding that the trial court abused its discretion.
Similarly, APS’s nexus arguments are equally illogical. For example, APS
states that “it is no surprise that Plaintiff” did not challenge the relevant evidence
prong and the nexus prong. Pet. for Mandamus, 6-7. This statement misses the
point. It does not matter whether or not APS can prove relevant evidence or nexus
if it cannot show it could not obtain desired information through less intrusive
forms of discovery. See Coates, 758 S.W.2d at 751 (all three prongs required to
show good cause); In re Transwestern Publ’g Co., 96 S.W.3d at 505 (same); In re
Caballero, 36 S.W.3d at 144 (same); In re Click, 442 S.W.3d at 491 (same).
To put it simply, the test for good cause isn’t a 1 out of 3 test, it isn’t even a
2 out of 3 test. To show good cause, APS had to show the trial court that it satisfied
14
all three prongs. It didn’t do so in its motion to compel, and it didn’t do so here on
mandamus. Thus, the trial court was within its discretion to deny APS’s motion.
C. APS must seek to obtain the desired information through less
intrusive forms of discovery before resorting to a compelled
medical examination.
Plaintiff argued in his response to APS’s motion to compel that APS must
seek the desired information through less intrusive forms of discovery before the
trial court could grant APS’s motion. MR140 (“The same information sought by
Defendant in its proposed examinations can be obtained through less intrusive
means,” and “Defendant’s experts are free to review the testing and medical
records utilized by Plaintiff’s physicians in forming their opinions and diagnoses
and conduct their own interpretations.”).
Exhausting less intrusive discovery methods to obtain the desired
information is a well-established prong of the good cause analysis. “The final
element of good cause requires that it not be possible to obtain the information
sought by less intrusive means and that absent the examination the relator will not
be able to obtain a fair trial.” Ten Hagen, 435 S.W.3d at 869 (citing In re Buch, 05-
98-01665-CV, 1998 WL 908843, at *3 (Tex. App.—Dallas Dec. 31, 1998, no pet.).
See also MR69 (APS acknowledging it must show the trial court that it is not
possible to obtain the same information through less intrusive means).
15
Additionally, Ten Hagen—the only case APS cited to in its motion to
compel—lists numerous other discovery methods that Texas courts have identified
that are less intrusive means of seeking the desired information. For example,
“deposing the opposing party’s doctors and attempting to obtain copies of medical
records.” 435 S.W.3d at 870 (citing In re Caballero, 36 S.W.3d at 145). The
movant may also rely “on existing expert witness reports already filed in the case,”
as most defense experts do. Id. (citing In re Bell Hot Shot Co., No. 14–13–00877–
CV, 2014 WL 260116, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig.
proceeding) (mem. op.)).
Likewise, in Marroni v. Matey, plaintiffs sought an independent examination
of the defendant. 82 F.R.D. 371, 372 (E.D. Pa. 1979). The court noted that “[o]ne
factor that is relevant to the determination of ‘good cause’ is the possibility of
obtaining the desired information by other means.” Id. (citing Schlagenhauf, 379
U.S. at 118). The court denied the plaintiffs’ request for independent examination
because the “[p]laintiffs have made no showing that the information they seek
cannot be obtained by other discovery techniques.” Id. The court went on to state
they it must deny the motion “[u]ntil other methods are attempted,” and that the
defendant’s “privacy interests require, at a minimum, that less intrusive methods of
discovery first be explored.” Id.
16
Similarly, in In re Thuesen, the court acknowledged that the relator was
“entitled to seek discovery from their identified medical providers.” 2013 WL
1461790, at *3. However, the court held that the relator “ha[d] not established that
discovery from the identified medical professional will be insufficient,” and that
“[t]he privacy interests of the real party plaintiffs require[d] relator to exhaust less
intrusive means of discovery before seeking compulsory mental examinations.” Id.
(citing Coates, 758 S.W.2d at 753).
Here, in light of the well-settled case law in this area, APS understandably
failed to show the trial court that it exhausted less intrusive discovery measures
because APS had not deposed Plaintiff’s treating physicians, and has still not
deposed Plaintiff’s experts. Additionally, APS gave no reason why the medical
records and expert reports provided are inadequate to obtain the information APS
sought. Thus, it was within the trial court’s discretion to deny APS’s motion to
compel.
Moreover, the trial court’s decision was within its discretion for the
following additional three reasons: (1) Compelled medical examinations intrude on
the injured party’s privacy; (2) APS did not provide the trial court with any
indication of what it was looking for that could not be determined through less
intrusive discovery; and (3) good cause is always required before a court orders an
independent medical examination.
17
1. Compelled medical examinations intrude on the injured party’s
privacy.
Plaintiff’s right of privacy must be balanced with APS’s desire for additional
discovery. Texas courts have repeatedly recognized this balance. “Good cause
requires a balancing of the competing interests of the party’s right of privacy and
the movant’s right to a fair trial.” In re Bell Hot Shot Co., 2014 WL 260116, at *2
(citing Coates, 758 S.W.2d at 753); see also Ten Hagen, 435 S.W.3d at 866-67)
(quoting In re Buch, 1998 WL 908843, at *3) (“‘When a party’s mental or physical
condition is implicated, the court must balance the party’s right of privacy and the
movant’s right to a fair trial.’”); H.E.B. Grocery, 2015 WL 3637775, at *3 (citing
Coates, 758 S.W.2d at 753; In re Click, 442 S.W.3d at 491) (same).
Despite the well-settled fact that independent medical examinations are
intrusive, in its motion to compel, APS makes the erroneous argument that “[a]s
the examinations sought by Defendant are not intrusive, invasive, or unnecessarily
physically uncomfortable, they should be allowed.” MR70. APS continues this
erroneous argument in its petition for mandamus by stating that “it is well settled
that where the intended examination is not intrusive, invasive or unnecessarily
physically uncomfortable, parties 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.” Pet. for Mandamus, P.8.
18
The only case APS uses to support this contention is once again Ten Hagen.
See MR69-70 (APS relying on Ten Hagen to erroneously argue that the requested
examinations are not intrusive). While Ten Hagen does state that “where the
intended examination is not intrusive, invasive or unnecessarily physically
uncomfortable, parties 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,” 435 S.W.3d at 870, as mentioned above, the types of examinations
requested by APS are intrusive under Texas law. In fact, Ten Hagen states that “an
order requiring a medical examination is an intrusive order.” 435 S.W.3d at 866.
Thus, the one sentence in Ten Hagen that APS relies on is irrelevant and in no way
establishes that the trial court abused its discretion.
Furthermore, APS is requesting not only an IME, but also a functional
capacity evaluation which necessarily goes beyond the examination typically
included with an IME. A functional capacity evaluation requires an individual to
submit to hours or days of physical testing and strenuous activities, almost
exclusively for purposes of Workers’ Compensation disability determination. APS
has failed to give any explanation at all as to why Hewitt, an employee of a non-
subscriber to Texas Workers’ Compensation, should be compelled to submit to a
FCE. App. 1: Pl.’s First Am. Pet., ¶ 9
19
Additionally, even if there was a conflict in the law in Texas about whether
an independent medical examination was intrusive—which there is not—this Court
has held that “[a] trial court does not abuse its discretion if it bases its decision on
conflicting evidence and some evidence supports the trial court’s decision.” In re
Le, 335 S.W.3d at 813 (citing IKB Indus., 938 S.W.2d at 445).
In sum, Texas law establishes that independent medical examinations are an
invasion of privacy. But even if this Court agrees with APS’s argument that the
examinations sought are somehow not invasive, at a minimum, the trial court did
not abuse its discretion because of the conflict in the law.
2. APS did not provide the trial court with any indication of what it
was looking for that could not be determined through less
intrusive discovery.
Next, APS did not provide the trial court with any details regarding what
information could not be obtained by methods other than an independent medical
examination. The burden is on APS to establish the record to both the trial court
and to this court on mandamus. See H.E.B. Grocery, 2015 WL 3637775, at *3
(citing Tex. R. App. P. 52.3(k)(1), 52.7(a); Walker, 827 S.W.2d at 837). APS failed
to carry its burden.
For example, APS only made the following arguments relating—to use the
word loosely—to why its experts needed to examine Plaintiff:
APS’s experts “would be precluded from examining matters not
covered by Plaintiff’s experts.” MR180.
20
Plaintiff’s experts “would have a benefit not afforded
Defendant’s retained expert and that such benefit would bolster
his retained expert’s reliability as compared to any
controverting expert designated by Defendant.” Pet. for
Mandamus, 3-4.
The IME “is needed for Defendant to fairly defend itself against
damage claims that Plaintiff intends to prove through its own
medical expert who has access to a physical examination.” Pet.
for Mandamus, 4.
Dr. Roman will look more credible “[b]ecause—as made clear
in his expert disclosure—Plaintiff’s medical expert will be
telling the jury that his opinions are based upon his own
medical examination of Plaintiff—something Defendant’s
expert will not be able to do if the order is allowed to stand.”
Pet. for Mandamus, 5.
And “that ‘the information’ sought is not simply the opinions of
Plaintiff’s treating physicians, or even his own retained medical
expert. Instead, “the information” sought—needed, in fact—is a
first-hand medical examination upon which Defendant’s
retained expert can base his opinions—just like Plaintiff’s
retained expert’s intends to do.” Pet. for Mandamus, 7.
These arguments fail for multiple reasons. First, these are nothing more than
conclusory allegations, which are not enough to establish good cause. Ten Hagen,
435 S.W.3d at 867 (“these two requirements are not met ‘by mere conclusory
allegations of the pleadings-nor by mere relevance to the case.’”) Id. (quoting
Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18. Second,
Dr. Roman’s report was not simply based on his physical examination of Mr.
Hewitt. Instead, Dr. Roman performed a comprehensive review of Mr. Hewitt’s
medical records and also used his own training, knowledge, and expertise as it
relates to reviewing the medical records. See MR18-30. Third, APS’s own experts
21
provide no affidavits or any other explanation as to why they cannot base their
opinions on the medical records provided—as most defense experts do. Instead,
APS merely states for the court that basically, it’s just not fair.
Thus, it was within the trial court’s discretion to deny APS’s motion to
compel as APS provided the trial court with nothing more than conclusory
allegations.
3. Good cause is always required before a court orders an
independent medical examination.
Finally, APS’s failure to establish that it sought less intrusive discovery
before seeking to compel an independent examination is fatal because good cause
is always required under Rule 204.1. APS argued in its motion to compel that “[a]
Plaintiff in a negligence action who claims physical injury as a result of a
Defendant’s negligence places his physical injury clearly in controversy and
provides the Defendant with good cause to determine the existence and extent of
such asserted injury simply by seeking recover for the alleged physical injury.”
MR68. This is far from true.
For example, in In re Transwestern Pub. Co., 96 S.W.3d at 506, the court
held that the designation of an expert was insufficient to meet the good cause
requirement under Rule 204.1. Similarly, in Ten Hagen, 435 S.W.3d at 862-63—
the case APS relies on to make this erroneous argument—the plaintiff designated
his treating physician as a medical expert to testify at trial. Despite this, the court
22
held that the clear language of Rule 204.1 required the movant to also show good
cause under the three-part test. Id. at 868-70.
Additionally, in Sherwood Lane Associates v. O'Neill, 782 S.W.2d 942, 943
(Tex. App.—Houston [1st Dist.] 1990, no writ) the court allowed an independent
medical examination precisely because defendants were unable to obtain all of the
information necessary through less intrusive means, thus satisfying the third prong.
Specifically, the minor plaintiff in Sherwood was being treated by two separate
psychologists, and during the discovery period, the defendants were unable to
obtain the treatment notes of one of the plaintiff’s treating physicians and
designated experts. The court in Sherwood was clear that the opinion was based on
the “facts and circumstances” of that case. Id. at 945.
The federal courts2 also recognize that good cause may exist in the following
circumstances. First, good cause may exist when the movant can prove that
deposing other witnesses would not provide the information sought. Gavin v.
Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013) (holding that good
cause existed when defendant could not “depose any of [plaintiff’s] treaters in
order to ascertain her continuing emotional distress”). Second, good cause may
exist when there is a substantial time between the examination and trial. Sadler v.
2
As mentioned previously, Texas courts look to the federal courts analyzing Rule 35 because
Rule 35 contains the same “good cause” requirement as Rule 2014.1. See Ten Hagen, 435
S.W.3d at 868.
23
Acker, 263 F.R.D. 333, 336 (M.D. La. 2009) (holding good cause may be shown
when a “‘substantial time lag’ will occur between the initial examinations . . . and
the time of trial”). Third, good cause may exist when the party’s health changes
significantly. Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 424 (S.D. Tex.
2012) (holding that when the plaintiff experienced “significant changed
circumstance [in health] constituting sufficient ‘good cause’ to warrant an
independent eye examination”).
In contrast, APS’s motion to compel is much more similar to the many cases
where courts have held good cause did not exist. For example, in In re Bell Hot
Shot Co., a plaintiff submitted to an evaluation related to a brain injury. 2014 WL
260116, at *1. The evaluation indicated that he was not impaired as a result of the
accident. Id. Yet, the defendant requested that the plaintiff be compelled to
undergo another medical examination. Id. The court found no abuse of discretion
in the trial court’s denial of another exam. Id. at *2. Specifically, looking at the
third element in the Coates analysis, the court found that there was already an
exam that undermined the plaintiff’s claim that he suffers from mental injuries
such that there was not good cause for another exam. Id.
Additionally, in Thuesen, the court held that there was no good cause when
the relator did “not establish that discovery from the identified medical
professional will be insufficient,” and the relator was required “to exhaust less
24
intrusive means of discovery before seeking compulsory mental examinations.”
2013 WL 1461790, at *3. See also Caballero, 36 S.W.3d at 143 (no good cause
when movant did not depose physicians, obtain copies of medical records, and
failed to articulate why the further examination would be relevant); Moore v.
Calavar Corp., 142 F.R.D. 134, 135-36 (W.D. La. 1992) (holding that defendant
failed to show good cause for second examination when no allegations “of a
change in the plaintiff’s complaints or in the clinical findings,” and that while the
defendant “is equally entitled to be well prepared to address the issue of the
plaintiff’s physical condition and need for surgery at trial, there had been no
showing to date that a second physical examination . . . would shed any clarifying
light upon the dispute”); Acosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir.
1990) (holding that an independent examination was improper because the
defendant “already ha[d] the information it seeks . . . without a repetitive
examination” when the defendant was supplied with a copy of the test performed
by plaintiff’s expert, plaintiff’s expert’s report, and defendant had already deposed
plaintiff’s expert as well as plaintiff”).
APS provided the trial court with no evidence to suggest that even one of
these situations is present in this case. In fact, as noted above, many courts have
repeatedly held that good cause does not exist when the moving party does not
25
exhaust less intrusive methods, as APS failed to do here. Thus, it was within the
trial court’s discretion to deny APS’s motion.
D. APS failed at the trial court level, as well as in their writ for
mandamus, to show they are entitled to a functional capacity
exam and the trial court’s denial of such was an abuse of
discretion.
As noted above, the basis of this mandamus proceeding is APS’s request for
an IME (by a Doctor retained by the Defendant) coupled with an FCE. It should be
noted that in their writ for mandamus, APS fails to fully address that it moved the
trial court for an IME and a FCE. Notably, the Courts do not force Plaintiffs to
undergo FCE’s. APS only addresses issues as to an IME in the appeal, but does
not provide case law showing that it is legally entitled to compel a FCE. In fact, at
the trial court level the only support provided was a 2011 online article titled “fact
sheet” of “occupational therapy’s role in functional capacity evaluation.” MR 184-
85. APS fails throughout its motion to cite any good cause for either examination
other than the conclusory allegations of their attorney.
Further, APS cannot single out its request for the IME alone for analysis of
an abuse of discretion standard for this mandamus proceeding. This is because the
trial court denied APS’s request for “physical examinations” which included not
only an IME but also an FCE. MR67-70. APS did not file separate motions
requesting each of these tests but a single request coupling both exams together as
“physical examinations.” Id. This request, which was denied is the basis of this
26
mandamus proceeding. The trial Court did not abuse it’s discretion for such an
overbroad and intrusive examination, without any showing of good cause or the
slightest attempt to obtain the information from less intrusive means prior to
requesting the Court to compel.
Surely, APS’s failure to address half of the relief requested made the basis of
this mandamus proceeding cannot be found to be a sufficient showing of an abuse
of discretion. Simply put, APS cannot isolate individual parts of its single request
made for multiple examinations. Silence as to half of APS’s request for an
intrusive FCE cannot be held as sufficient in showing an abuse of discretion.
As APS has failed to fully detail that they were legally entitled to a FCE, and
that the trial court abused its discretion in denying “physical examinations”
requested, which included the requested FCE, the Court should find that APS has
failed to meet their heavy burden showing an abuse of discretion has occurred.
E. Even Ten Hagen—the sole case cited by APS in its motion to
compel—supports the trial court’s decision.
As noted repeatedly in this response, APS only relied on the Ten Hagen case
in its motion to compel. MR67-70. However, Ten Hagen is easily distinguishable.
For example, in Ten Hagen, the court was provided with evidence that (1) the
plaintiff’s expert’s notes and report were incomplete, 435 S.W.3d at 870; (2) the
defense expert “did not feel confident in relying on [the plaintiff’s expert’s]
examination,” Id.; (3) the plaintiff’s expert’s report was the first indication of any
27
sensory loss despite previous examinations, Id.; (4) the plaintiff’s expert’s opinions
“did not ‘fit together’ and were not ‘all reasonably considered to be sequella of the
motor vehicle collision.’” Id.
Additionally, the court noted that “[t]he facts of this case [were] unique”
because the defendant “suffered the untimely death of its sole expert witness
shortly before the close of the discovery period after the treating physician
submitted a report that suggested even he could not confidently assess the full
extent of [plaintiff’s] future need for additional treatment.” Id.
The court also noted that the future damages could not be assessed “by
simple resort to review of the medical records . . . , examination of the injured
appendage during a deposition . . . , or further development of [plaintiff’s expert’s]
opinion during a deposition.” Id. at 870-71.
Here, none of the evidence listed by the Ten Hagen court were present. APS
has never provided evidence that Dr. Roman’s report was incomplete, that the
defense experts were not confident relying on Dr. Roman’s report, that Dr.
Roman’s report listed new injuries not previously addressed, or that Dr. Roman’s
report “did not fit together.” In addition, APS has not shown how the numerous
treating Doctors that have treated Plaintiff were incomplete in their own medical
records, or that their retained Doctors are not confident in relying on the numerous
treating physicians records. Likewise, none of APS’s experts have died during this
28
case, and APS has provided no evidence or argument that its experts could not
obtain the necessary information through a review of the medical records of
treating Doctors or through depositions of the treating Doctors.
Thus, Ten Hagen—the only case cited by APS in its motion to compel—
supports the trial court’s finding that there was no good cause.
F. Any arguments made regarding Plaintiff’s economist Kenneth
McCoin are irrelevant and misguided.
Finally, the fact that APS references McCoin’s report at all is confusing and
irrelevant because McCoin is an economist and never examined Plaintiff to create
his report. Thus, any expert hired by APS should not be required to examine
Plaintiff to respond to McCoin’s report.
Additionally, in Storms v. Lowe’s Home Centers, Inc., the court addressed
this very issue. 211 F.R.D. 296, 296-97 (W.D. Va. 2002). In Storms, the plaintiff
was injured while shopping and sought damages for lost wages and earning
capacity among other things. Id. at 296. To substantiate these claims, the plaintiff
“retained an expert vocational rehabilitation counselor to opine on matters related
to lost wages and lost earning capacity.” Id. The retained expert interviewed the
plaintiff and reviewed records to issue a report. Id. at 296-97. In response, Lowe’s
hired a vocational expert as well. Id. at 297.
The plaintiff provided Lowe’s expert with a copy of the report, all of the
relevant medical records, as well as all the other discoverable information
29
requested, but declined to be interviewed by the Lowe’s expert. Id. Additionally, at
the time of the hearing, the plaintiff had not yet been deposed. Id.
With these facts in mind, the court held that an additional vocational
examination was not appropriate under Rule 35, but went on to state that the
defendant had all of the information it needed based on the plaintiff’s ability to
work in the future. Id. at 298. The court reasoned that an additional examination
under Rule 35 was not appropriate because the “Plaintiff ha[d] provided Lowe’s
with a copy of all medical records, a copy of the report from his vocational expert,
his tax records, and all other discoverable material requested by Lowe’s.” Id. The
court also reasoned that Lowe’s still had the opportunity to depose the plaintiff and
at the deposition “counsel [would] be able to examine the plaintiff on all matters
relating to his functional capacity.” Id.
Storms is instructive here. In fact, unlike the plaintiff’s expert in Storms,
here, McCoin did not physically examine or meet with Mr. Hewitt to formulate
economic opinions. Additionally, APS has been provided with all of the same
information as the defendant in Storms. Thus, any arguments made by APS
relating to McCoin’s report are irrelevant at best and instead support the trial
court’s decision to deny APS’s motion to compel.
30
CONCLUSION
The trial court made the right decision when it denied APS’s attempt to
compel a medical exam. At a minimum, the trial court acted within its broad
discretion and did not act arbitrarily or unreasonably when it made its factual
determination that APS did not meet its burden on the good cause requirement to
obtain two medical examinations.
PRAYER FOR RELIEF
The Court should deny APS’s Petition for Mandamus, set aside its stay order
and allow the trial court to proceed as scheduled. Plaintiff requests all other relief
to which he is justly entitled.
31
Respectfully submitted,
ARNOLD & ITKIN, LLP
By: /s/ J. Kyle Findley
Kurt B. Arnold
SBN: 24036150
karnold@arnolditkin.com
J. Kyle Findley
SBN: 24076382
kfindley@arnolditkin.com
Kala Flittner Sellers
SBN: 24087519
ksellers@arnolditkin.com
6009 Memorial Dr.
Houston, TX 77007
(713) 222-3800
(713) 222-3850 (Fax)
Counsel for Real Party in Interest,
Tremaine Hewitt
32
CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2015, a true and correct copy of the
above and foregoing Response to Petition for Writ of Mandamus was forwarded to
all counsel of record by the Electronic Filing Service Provider, if registered,
otherwise by email, as follows:
Donald M. Hudgins
Michael D. Hudgins
Steven F. Hudgins
The Hudgins Law Firm, A Professional Corporation
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Charles A. Sturm
Sturm Law, PLLC
723 Main Street, Suite 330
Houston, Texas 77002
Attorneys for Relator,
Advanced Powder Solutions, Inc.
Honorable Kyle Carter
125th District Court
Harris County
201 Caroline, 10th Floor
Houston, TX 77002
/s/ J. Kyle Findley
J. Kyle Findley
33
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Tex. R. App. P. 9.4
because it contains 8,467 words, excluding the parts of the brief exempted by Tex.
R. App. P. 9.4(i)(2)(B).
34
APPENDIX
TAB DOCUMENT
1. Plaintiff’s First Amended Petition
35
Tab 1
9/28/2015 11:53:01 AM
Chris Daniel - District Clerk Harris County
Envelope No. 7122087
By: Julio Garcia
Filed: 9/28/2015 11:53:01 AM
CAUSE NO. 2014-16020
Tremaine Hewitt § IN THE DISTRICT COURT OF
§
Plaintiff §
§
v. § HARRIS COUNTY, TEXAS
§
Advanced Powder Solutions, Inc., §
Dean Baker, and Martha E. Baker §
§
Defendants. § 125th JUDICIAL DISTRICT
Plaintiff’s First Amended Petition
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff Tremaine Hewitt, complaining of Advanced Powder
Solutions, Inc., Dean Baker, and Martha E. Baker, respectfully showing the Court the
following:
I.
Nature of Action
1. This is an action arising under the common law of the State of Texas.
II.
Discovery
2. Plaintiff intends to conduct discovery under Discovery Level 2 pursuant to
TEX. R. CIV. P. 190.3.
III.
Jurisdiction and Venue
3. The Court has jurisdiction over this case because Plaintiff seeks damages well
within the jurisdictional limits of the Court, and Defendants are citizens of Texas.
4. Venue is proper in Harris County because a substantial part of the events or
omissions underlying Plaintiffs’ claims occurred in Harris County. See TEX. CIV. PRAC. &
REM. CODE 15.002(a)(1). Further Defendants reside in Harris County. TEX. CIV. PRAC. &
REM. CODE 15.002(a)(2).
IV.
Parties
5. Plaintiff is a resident of Texas.
6. Defendant, Advanced Powder Solutions, Inc. is a Texas company that has
made an appearance in this case.
7. Defendant, Dean Baker, is a Texas citizen and may be served through personal
delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever he may be found.
8. Defendant, Martha E. Baker, is a Texas citizen and may be served through
personal delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever she may be
found.
V.
Facts
9. On or about August 28, 2013, Plaintiff was employed by Advanced Powder
Solutions, Inc. (“APS”), a non-subscriber to Texas Workers’ Compensation. Plaintiff was
working at APS’s facility in front of a reactor on a ladder when a co-worker began
manipulating valves on the reactor. This caused a blast and caused Plaintiff to fall off the
ladder and into a fire. Plaintiff suffered severe burns and orthopedic injuries as a result.
Plaintiff had to be life-flighted from the scene, and has already undergone multiple surgeries.
VI.
Causes of Action
Negligence and Gross Negligence
10. Plaintiff repeats and realleges each allegation contained above.
2
11. Plaintiff sustained serious injuries because of Defendants’ negligence and
gross negligence evidenced by Defendants’:
Failure to properly train its employees;
Failure to properly supervise its employees;
Use of the reactor;
Failure to have safe policies and procedures for the work Plaintiff was doing when
he suffered injuries;
Failure to provide a safe work place;
Other acts deemed negligent and grossly negligent.
12. As a result of Defendants’ negligence and gross negligence, Plaintiff suffered
severe physical injuries. Plaintiff is entitled to recover damages for his injuries. Defendants’
actions were done with a reckless disregard to a substantial risk of severe bodily injury. As
such, Plaintiff is entitled to exemplary damages.
VII.
Joint and/or Vicarious Liability
13. Plaintiff repeats and realleges each allegation contained above.
14. For the following reasons based on information and belief, Defendant APS’s
corporate form should be disregarded to hold Defendants Dean Baker and Martha E. Baker
vicariously or jointly liable to Plaintiff for APS’s wrongful conduct:
a. APS is a mere sham, organized and operated by Dean Baker and
Martha E. Baker in their individual capacity to perpetrate fraud upon Plaintiff and potentially
other unsuspecting persons. Defendants made material representations to Plaintiff that were
false when made and which Defendants knew were false or made recklessly, and/or
3
Defendants had a duty to disclose but failed to disclose material facts to Plaintiff, knowing
Plaintiff did not know and did not have an equal opportunity to discover those facts.
Specifically, Defendants made misrepresentations and/or omissions about APS’s corporate
structure and finances and made these material misrepresentations and/or omissions with the
intent to induce Plaintiff to delay in asserting his negligence and gross negligence causes of
action against Dean Baker and Martha E. Baker, individually. Plaintiff relied to his
detriment on those misrepresentations and/or omissions.
b. Dean Baker and Martha E. Baker are each the “alter ego” of APS and
APS was and is organized and operated as a mere tool and/or business conduit for the Baker
Defendants’ personal benefit and advantage. Dean Baker and Martha E. Baker, individually,
have at all times exercised total dominion and control over APS, and have exercised such
control in a manner indistinguishable from his and her own personal affairs. Dean Baker and
Martha E. Baker were the first and, Plaintiff believes, the only directors of APS. Dean Baker
and Martha E. Baker own a majority of the stocks issued and have maintained complete
corporate ownership. Dean Baker and Martha E. Baker have also commingled their personal
funds with corporate funds and have paid corporate debts with personal checks.
c. Dean Baker and Martha E. Baker are using APS’s corporate fiction as a
means of evading an existing legal obligation, namely, civil liability for negligence and gross
negligence that injured Plaintiff and caused Plaintiff to incur damages.
d. Dean Baker, individually, intentionally operated and continues to
operate APS with inadequate capitalization. Specifically, APS operates its business with
insufficient assets to satisfy potential debts and liabilities associated with running its
business. Because Dean Baker operated and continues to operate APS with inadequate
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capitalization, equity dictates that Dean Baker, in his individual capacity, be held vicariously
liable to Plaintiff for all of his damages alleged herein.
VIII.
Statute of Limitations
15. Plaintiff repeats and realleges each allegation contained above.
16. If Defendants assert statute of limitations as an affirmative defense to any of
the causes of action asserted above, the affirmative defense fails for one or more of the
following reasons:
17. The applicable statute of limitations was tolled because Defendants
fraudulently concealed facts pertaining to the true identities of the Defendants. Through no
fault of Plaintiff’s, Defendants withheld documents evidencing APS’s corporate structure,
financial information, and undercapitalization until this month, September 2015, which was
about eight months after Plaintiff’s most recent discovery request and only a few weeks after
the two-year anniversary of the accident giving rise to this lawsuit. Defendants made
material representations to Plaintiff that were false when made and which Defendants knew
were false or made recklessly, and/or Defendants had a duty to disclose but failed to disclose
material facts to Plaintiff, knowing Plaintiff did not know and did not have an equal
opportunity to discover those facts. Defendants made these material misrepresentations
and/or omissions with the intent to induce Plaintiff to delay in asserting his negligence and
gross negligence causes of action against Dean Baker and Martha E. Baker, individually.
Defendants had actual knowledge of their misconduct yet actively suppressed the truth to
conceal it. Plaintiff exercised reasonable diligence to discover the information Defendants
were concealing by seeking such information through his discovery requests in this lawsuit.
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Plaintiff reasonably relied on Defendants’ misrepresentations and/or omissions to his
detriment.
18. The applicable statute of limitations against Dean Baker and Martha E. Baker
was tolled as of the date Plaintiff filed suit against APS because Dean Baker and Martha E.
Baker are the alter ego of APS and are vicariously liable defendants.
19. The applicable statute of limitations was tolled for any and all periods of time
that Dean Baker and/or Martha E. Baker were absent from the State of Texas. Upon
information and belief, Dean Baker and Martha E. Baker were absent from the state for a
sufficient period of time during the limitations period to preclude any defense based on
statute of limitations.
20. Defendants are equitably estopped from asserting a limitations defense to any
of Plaintiff’s claims because Defendants, acting with actual or constructive knowledge of the
facts regarding APS’s corporate structure and finances, materially misrepresented those facts
to Plaintiff and/or concealed those facts from Plaintiff with the intent to induce Plaintiff to
rely on Defendants’ material misrepresentations and/or omissions and delay in filing suit
against Dean Baker and Martha E. Baker, individually. Plaintiff neither had knowledge of
the truth nor means of obtaining knowledge of the truth, and he relied on Defendants’
material misrepresentations and/or omissions to his detriment.
IX.
Prayer
21. Plaintiff prays for relief and judgment as follows:
a. Compensatory damages against each Defendant;
b. Actual damages, such as past and future economic damages, past and
future medical bills, past and future pain and suffering, past and future
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impairment, past and future disfigurement, past and future mental
anguish;
c. Consequential damages;
d. Exemplary damages;
e. Interest on damages (pre- and post-judgment) in accordance with law;
f. Such other and further relief as the Court may deem just and proper;
g. Attorneys’ fees.
Respectfully Submitted,
ARNOLD & ITKIN LLP
/s/ Kurt Arnold
_______________________________
Kurt B. Arnold
SBN: 24036150
karnold@arnolditkin.com
J. Kyle Findley
SBN: 24076382
kfindley@arnolditkin.com
Kala F. Sellers
SBN: 24087519
ksellers@arnolditkin.com
6009 Memorial Drive
Houston, Texas 77007
Tel: 713.222.3800
Fax: 713.222.3850
e-service@arnolditkin.com
ATTORNEYS FOR PLAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure
on this 28th day of September, 2015.
Steven F. Hudgins
The Hudgins Law Firm, A Professional Corporation
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Counsel for Defendant
Advanced Powder Solutions, Inc.
/s/ Kyle Findley
J. Kyle Findley
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