ACCEPTED
04-15-00553-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/15/2015 1:44:55 PM
KEITH HOTTLE
CLERK
NO. 04-15-00553-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS
9/15/2015 1:44:55 PM
AT SAN ANTONIO KEITH E. HOTTLE
Clerk
IN RE: RUBEN GONZALEZ,
Relator.
RELATOR’S REPLY TO REAL PARTIES’ RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
Counsel for Relator:
David H. Jones Jaime A. Gonzalez, Jr.
State Bar No. 10869590 State Bar No. 08127600
Hector L. Rodriguez
LAW OFFICE OF DAVID H. JONES State Bar No. 00791555
6521 North 10th Street, Suite E1
McAllen, Texas 78504 GONZALEZ & ASSOCIATES LAW
Telephone: (956) 627-6350 FIRM, LTD.
Email: David@DHJlawfirm.com Summit Park North
817 E. Esperanza Ave.
McAllen, Texas 78501
Telephone: (956) 664-0100
Facsimile: (956) 664-1529
ORAL ARGUMENT REQUESTED
SUPPLEMENT TO REQUEST FOR ORAL ARGUMENT
Relator continues to believe that oral argument is not necessary to
decide this original proceeding. The failure of Real Parties’ Response to
legitimately address the critical issues in this proceeding only strengthens that
conclusion.
Should this Court decide to set this case for oral argument, Relator
would draw the Court’s attention to the fact that appellate counsel for Relator,
David H. Jones, is currently set for oral argument in the Texas Supreme Court
on October 12, 2015. That case is complex. The Clerk’s Record alone is six
volumes. Therefore, if this Court sets this case for oral argument, Relator
requests that said oral argument be set either: 1) after October 12, 2015, or
2) next week, preferably early next week. This would allow counsel time to
prepare for the oral argument in the Supreme Court.
SUPPLEMENT TO MANDAMUS RECORD
Relator will be filing a Supplemental Mandamus Record as soon as
possible. The Supplemental Mandamus Record will contain Relator’s
Seventh Supplemental Responses to Requests for Disclosure and attached
documents from Dr. Betancourt which were served on Real Parties in Interest
on September 4, 2015, demonstrating – in addition to what is already in the
Mandamus Record – that Real Parties had obtained records from Dr.
Betancourt even while representing to this Court that they had not. The
Supplemental Mandamus Record will also contain additional relevant
documents.
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TABLE OF CONTENTS
Supplement to Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . ii
Supplement to Mandamus Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Real Parties in Interest failed to overcome the
fact that the medical examination is no longer
necessary, and the purpose of the medical
examination ordered by Respondent is moot. . . . . . . . . . . 1
II. Real Parties in Interest failed to show good
cause for the medical examination.. . . . . . . . . . . . . . . . . . . 3
A. Less intrusive means of discovery were available
before the surgery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Less intrusive means of discovery are still available. . . . 4
C. Additional time is available to conduct discovery. . . . . . . 6
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TRAP 9.4(i)(3) Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRAP 52.3(j) Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
APPENDIX
Order Granting Joint Motion for Continuance. . . . . . . . . . . . . . . . . . . Tab D
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ARGUMENT
I. Real Parties in Interest failed to overcome the fact that the medical
examination is no longer necessary, and the purpose of the
medical examination ordered by Respondent is moot.
The purpose of the medical examination, as asserted by Real Parties
in Interest Premier Eagle Ford Services, Inc. (“Premier Eagle”) and Abel
Alvarado Casillas (“Casillas”), was to determine whether a four level cervical
disc fusion surgery (the “4-disc surgery”) recommended by Dr. Gerardo
Zavala (“Dr. Zavala”) was necessary. (MR 66-68).
Premier Eagle and Casillas wanted their retained expert, a Dr. Gilbert
Meadows (“Dr. Meadows”), to examine Ruben Gonzalez (“Gonzalez”) even
though Dr. Meadows had already reached an opinion that “[i]t is highly
unlikely that Mr. Gonzalez will have a positive outcome from the proposed
surgery.” (MR 82). In fact, Dr. Meadows apparently does not even need
medical records or an MRI. He stated in his Affidavit that “[b]ased on the
surveillance videos I reviewed, this man does not require surgery.” (MR 83).
Thus, it is clear that Premier Eagle and Casillas wanted the medical
examination so as to bolster an opinion that Dr. Meadows had already
reached.
In Response to Gonzalez’s argument that the purpose of the medical
examination is now moot, Premier Eagle and Casillas assert that “[t[he
surgery, however, was not performed by Dr. Zavala ... but rather Dr.
Betancourt” and that there is a “great discrepancy” between what Dr. Zavala
recommended and the surgery actually performed. (Response, pp. 7-8).
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Real Parties’ argument does nothing more than side-step the issue.
Everyone already knows that Gonzalez had the surgery recommended by Dr.
Betancourt rather than the surgery recommended by Dr. Zavala and that there
is a discrepancy between their recommendations.
But, that does not change the fact that it is no longer necessary for Dr.
Meadows to examine Gonzalez and determine whether he should have 4-disc
surgery. He did not have that surgery, and he is not going to have it. Instead
of withdrawing their Renewed Motion to Conduct Medical Examination
(“Renewed Motion”), Real Parties proceeded as if no surgery had taken place,
seeking and obtaining a court order to determine whether a surgery that will
not occur is necessary.
Real Parties assert that Dr. Meadows should be allowed to examine
Gonzalez’s spine anyway “to obtain a clear picture of Gonzalez’ spine and
ensure that Real Parties in Interest will have a fair trial.” (Response, p. 8).
This argument also fails.
First, Dr. Meadows must have thought he had a “clear picture” of
Gonzalez’s spine when he opined that the surgery was “highly unlikely” to
have a “positive outcome” and that “this man does not require surgery.” (MR
82-83). He had reviewed Gonzalez’s MRI results and the surveillance video.
(MR 82). If Dr. Meadows wants another “clear picture” of Gonzalez’s spine,
then the Premier Eagle and Casillas lawyers who hired him can depose Dr.
Betancourt. They already have his medical records. (MR 58-65; and see
pending Supplemental Mandamus Record).
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Second, the purpose of the medical examination, as ordered by
Respondent, was not to give Dr. Meadows a “clear picture” of Gonzalez’s
spine, but to allow Dr. Meadows to bolster his opinion that the 4-disc surgery
is unnecessary. That purpose is now moot, and Real Parties cannot change
the purpose and particulars of the medical examination after it has been
ordered by Respondent.
Finally, there is no evidence that Premier Eagle and Casillas need the
medical examination to insure a “fair trial.” Real Parties offer no explanation
as to why they cannot obtain a fair trial without the medical examination, nor
do Real Parties explain why they cannot conduct discovery to obtain
information about the surgery that was conducted.
Thus, the purpose of the medical examination is now moot, and
Respondent abused her discretion in ordering it.
II. Real Parties in Interest failed to show good cause for the medical
examination.
In addressing Gonzalez’s contention that Premier Eagle and Casillas
failed to show that they have exhausted less intrusive means of discovery,
Real Parties again side-step the issue. They have also misrepresented the
record.
A. Less intrusive means of discovery were available before the
surgery.
Premier Eagle and Casillas make the disingenuous argument that they
could not depose Dr. Betancourt prior to the surgery or prior to filing their
Renewed Motion because they did not know about him, even though they
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admit they had been told that surgery was going to take place. (Response,
pp. 2, 5). Real Parties obviously decided to sit on the information that surgery
was going to take place and do nothing to find out when it would occur.
Nevertheless, even assuming what Premier Eagle and Casillas claim is
true, it is irrelevant to the issue. Premier Eagle and Casillas did know about
Dr. Betancourt prior to the hearing on their Renewed Motion, and they still
made no effort to depose Dr. Betancourt or any of Gonzalez’s medical
providers other than Dr. Zavala.
Dr. Betancourt was disclosed to Premier Eagle and Casillas on July 31,
2015, twenty-five days before the hearing on the Renewed Motion. (See
Response in Opposition to Relator’s Motion for Stay of Medical Examination,
p. 3 and Exhibit 3; RR 13, 14-15). Yet, despite knowing no later than July 31
that the 4-disc surgery would not take place and that a 1-level disc surgery
had already been done, Premier Eagle and Casillas failed to seek Dr.
Betancourt’s deposition and failed to conduct any discovery pertaining to the
surgery that was actually done. Instead, Premier Eagle and Casillas decided
to pretend that no surgery had taken place and to stubbornly persist in
seeking a medical examination for the purported purpose of learning whether
a surgery that would not occur was necessary.
B. Less intrusive means of discovery are still available.
Second, Premier Eagle and Casillas offer no reason why they cannot
depose Dr. Betancourt now. Real Parties continue to complain that Gonzalez
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did not disclose Dr. Betancourt prior to the one disc surgery, but that is no
reason to refuse to take his deposition now.
Premier Eagle and Casillas also misrepresent the record, claiming that
“it has been two months since Gonzalez’ surgery and he still has not
produced the records from Dr. Betancourt and Cornerstone Regional Hospital
in connection with the surgery.” (Response, pp. 5-6).
However, Premier Eagle and Casillas not only received records from Dr.
Betancourt, they received records before the hearing on the Renewed Motion,
and those records are in the Mandamus Record. (MR 43-44, 58-65). There
are also additional records from Dr. Betancourt that were served on Premier
Eagle and Casillas on September 4, 2015, before Real Parties filed their
Response to the Petition for Writ of Mandamus. These documents will be
provided via a Supplemental Mandamus Record, which will be filed as soon
as possible.
As for records from Cornerstone Regional Hospital, Gonzalez does not
have them either. Gonzalez has requested the records in writing, and they
will be forwarded to Premier Eagle and Casillas after Gonzalez obtains them.
(See pending Supplemental Mandamus Record).
Even if it were true that Premier Eagle and Casillas had no records from
Dr. Betancourt, Real Parties offer no proof that they ever requested the
records. Instead, Real Parties are relying on Requests for Disclosure to
obtain them.
-5-
And, Premier Eagle and Casillas offer no explanation of why they
cannot request and obtain those records. Nor do they explain why they
cannot depose Dr. Betancourt with a subpoena duces tecum attached to the
deposition notice. As set forth more specifically below, the September 21,
2015 trial date has been continued, providing Premier Eagle and Casillas with
ample time to request medical records, review them, and then depose Dr.
Betancourt. (Appendix, Tab D).
Furthermore, there are other means of post-surgery discovery available
to Premier Eagle and Casillas, such as written discovery. Real Parties do not
address these additional means of discovery or offer a reason why they are
inadequate.
Finally, Premier Eagle and Casillas assert that despite their Dr.
Meadows’s complete review of Gonzalez’s medical records, review of Dr.
Zavala’s deposition, and review of the surveillance video, somehow “the
medical examination is critical.” (Response, p. 6). However, Dr. Meadows’s
own Affidavit fails to explain why he needs to conduct a medical examination
for any reason other than to bolster his opinion that the 4-disc surgery is
unnecessary. Since the 4-disc surgery did not take place and will not take
place, then Dr. Meadows’s examination is not “critical” to anything.
C. Additional time is available to conduct discovery.
In their Response in Opposition to Relator’s Motion for Stay of Medical
Examination, Premier Eagle and Casillas contend that the underlying case is
set for trial on September 21, 2015. (Response in Opposition, p. 2).
-6-
However, Respondent has granted a continuance of the trial, and the case is
no longer set for trial on September 21, 2015. (Appendix, Tab D). Currently,
no trial date is scheduled.
Thus, Premier Eagle and Casillas have plenty of time to conduct
discovery and obtain information about the one disc surgery which did take
place instead of wasting time determining whether a 4-disc surgery that will
not take place would have been necessary.
PRAYER
WHEREFORE, PREMISES CONSIDERED, RUBEN GONZALEZ,
Relator, prays that the Court grant his Petition for Writ of Mandamus and
enter an order directing the judge of the 111th Judicial District Court of Webb
County, Texas to vacate her August 25, 2015 Order Granting Cross-
Defendants’ Renewed Motion to Conduct Medical Examination and to enter
an order which denies the Renewed Motion to Conduct Medical Examination.
Relator also prays for such other and further relief to which he may be justly
entitled.
Respectfully Submitted,
Jaime A. Gonzalez, Jr.
State Bar No. 08127600
Hector L. Rodriguez
State Bar No. 00791555
GONZALEZ & ASSOCIATES LAW
FIRM, LTD.
Summit Park North
817 E. Esperanza Ave.
McAllen, Texas 78501
(956) 664-0100 (telephone)
(956) 664-1529 (facsimile)
-7-
/s/ David H. Jones
DAVID H. JONES
State Bar No. 10869590
LAW OFFICE OF DAVID H. JONES
6521 North 10th St., Suite E-1
McAllen, Texas 78504
Telephone: (956) 627-6350
Email: David@DHJlawfirm.com
ATTORNEYS FOR RELATOR
RUBEN GONZALEZ
TRAP 9.4(i)(3) CERTIFICATE
Relying on the word count of the computer program used to prepare this
Brief, the undersigned certifies that the number of words in this document, not
including the matters set forth in Tex. R. App. P. 9.4(i)(1), is _________.
/s/ David H. Jones
David H. Jones
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TRAP RULE 52.3(J) CERTI F I C A T I O N
Pursuant to Rule 52.3(j) of the Texas Rules of Appellate Procedure, the
undersigned certifies that he has reviewed the Petition for Writ of Mandamus
and concluded that every factual statement in the Petition is supported by
competent evidence included in the appendix or record.
/s/ David H. Jones
David H. Jones
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was
delivered in accordance with Rule 9.5 of the Texas Rules of Appellate
Procedure to the following on this the 15th day of September, 2015:
Hon. Monica Z. Notzon
Judge, 111th Judicial District
1110 Victoria Street
Laredo, Texas 78040
Respondent
Stephen D. Navarro
Naman Howell Smoth & Lee, PLLC
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
Attorney for Real Parties in Interest
/s/ David H. Jones
DAVID H. JONES
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in Re Ruben Gonzalez
Combined Opinion