ACCEPTED
04-15-00553-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/15/2015 12:02:12 AM
KEITH HOTTLE
CLERK
No. 04-15-00553-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS
09/15/2015 12:02:12 AM
SAN ANTONIO KEITH E. HOTTLE
Clerk
IN RE: RUBEN GONZALEZ,
Relator.
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Counsel for Real Parties in Interest:
David L. Ortega
State Bar No. 00791377
Stephen D. Navarro
State Bar No. 00792712
NAMAN HOWELL, SMITH & LEE, PLLC
10001 Reunion Place, Ste. 600
San Antonio, TX 78216
Tel: 210-731-6351
Facsimile: 210-785-2951
Email: dortega@namanhowell. com
Email: snavarro@namanhowell. com
REQUEST FOR ORAL ARGUMENT
Real Parties in Interest respectfully request oral argument to assist the Court
in determining the issues presented in this original proceeding. Tex. R. App. P
39.1
EXPLANATION OF ABBREVIATIONS
The abbreviations used herein are those referred to by relator in the Petition
for Writ of Mandamus. A reference to the mandamus record is abbreviated as
"(MR)".
A reference to the record from the hearing on Real Parties in Interest
Renewed Motion to Conduct Medal Examination is referred to as "(RR)".
TABLE OF CONTENTS
Request for Oral Argument. . 11
Explanation of abbreviations . 11
Table of Contents .. .. Ill
Index of Authorities.. ...V
Statement of the Case. .. VI
Issues Presented. . Vll
Statement of Facts. ...I
Argument. ... .3
I. Mandamus Standard........... ...... ...... ....... .........3
II. Respondent did not abuse her discretion by
concluding good cause was shown and ordering
the medical examination to determine the
condition of Gonzalez' spine and whether
he would benefit from surgery...................................^
A. Standard for granting medical examination. ...............4
B. Lessor intrusive means requirement has b^en satisfied. ..4
III. Respondent did not abuse her discretion by ordering
the medical examination given that Gonzalez'
providers are at odds with each other regarding
the surgery allegedly required.....................................?
A. The exam is necessary to draw a clear picture of Gonzalez'
spine................................................7
Conclusion. ..
iii
Prayer. .9
TRAP 9. 4(i)(3) Certificate. ........................ ..... ..... ...... 10
TRAP 52. 3Q) Certificate. ... 11
Certificate of Service. . .. 11
IV
INDEX OF AUTHORITIES
CASES PAGE(s)
CSR Ltd v. Link, 925 S. W. 2d 591 (Tex. 1996) (orig. proceeding) .... ..... 3
Walker v. Packer, 827 S. W. 2d 833 (Tex. 1992) (orig. proceeding)........ . ......3
Prudential Ins. Co. of America, 148 S. W. 3d 12 (Tex. 2004). ............. ....3
Re Colonial Pipeline Co., 968 S.W. 2d 938 (Tex. 1998) (orig. proceeding).....3
Canadian Helicopters, Ltd. V. Wittig, 876 S.W. 2d 304... ... .. ..... . .4
(Tex. 1994) (orig. proceeding)
Coates v. Whittington, 758 S.W. 2d 749 (Tex. 1988). . ... .. ... .... .4
Transwestern Publishing Company, 96 S. ^W. 3d 501... ... ..... . . ... . 4
(Tex. App. - Fort Worth 2002, orig. proceeding)
Exxon Corp. V. Starr, 790 S.W.2d 883.
(Tex. App. - Tyler 1990, orig. proceeding)
Sherwood Lane Assocs. v. O'Neil, ^'lS. W. '1^9^2 ..... .... ........ . ...7
(Tex. App. - Houston [1stDist. ] 1990, no writ.
Ten Hagen Excavating, Inc., 435 S. W. 3d 859. .7
(Tex. App. - Dallas 2014, orig. proceeding)
RULES OF PROCEDURE
Texas Rule of Civil Procedure 204. 1(C).... ....... .... ... . .............4
Texas Rule of Appellate Procedure 9. 4(i)(3).. ... . 10
Texas Rule of Appellate Procedure 52. 3(J). 10
Texas Rule of Appellate Procedure 9. 5... .
10
STATEMENT OF THE CASE
Nature ofthe Underlying Proceeding: The underlying dispute is a suit
for damages following a collision involving a vehicle being driven by
Relater Ruben Gonzalez and a tractor-trailer being driven by Martin Garcia,
a former Plaintiff. (MR 95).
Respondent: The Honorable Monica Z. Notzon, Judge of the 111th
Judicial District Court ofWebb County, Texas.
P^espondent's Action from V,7hich Relief is Sought: Respondent
entered an order compelling Ruben Gonzalez to undergo a medical
examination for the purpose of determining the current condition of Mr.
Gonzalez' cervical spine and whether he would benefit from cervical disk
surgery. (RR 10; MR 41, 82-83).
{03561007.DOCX/}V1
ISSUE PRESENTED
ISSUENO. 1
Did Respondent abuse her discretion by: (1) concluding the Real Parties in
Interest showed good cause for the medical examination of Ruben Gonzalez
and (2) entering an order compelling Ruben Gonzalez to undergo the
medical examination to detennine the current condition of his cervical spine
andwhether he would benefit from cervical disc surgery?
ISSUE NO. 2
Did Respondent abuse her discretion by entering an order compelling Ruben
Gonzalez to undergo the medical examination given the pending four disc
surgery recommended by Dr. Gerardo Zavala and the single disk surgery
recently performed by Dr. Alejandro J. Betancourt?
{03561007. DOCX/}V11
STATEMENT OF FACTS
I. The underlying suit.
This is an auto accident case occurring on Febmary 14, 2012 whereby
Relator, Ruben Gonzalez ("Gonzalez") alleges he suffered severe mental, physical
injuries and damages following a collision between his vehicle and the vehicle
being driven by former Plaintiff, Martin Garcia. (MR 95). Gonzalez subsequently
filed a cross-claim against Real Parties in Interest. (MR 3, 94).
Gonzalez and his designated testifying expert and treating provider. Dr.
Gerardo Zavala("Dr. Zavala") allege injury to Gonzalez' cervical spine requiring a
four level cervical disc surgery. (MR 54, 71-72, 82). Furthermore, Gonzalez has
testified that he does not think he is physically qualified to work. (MR 73).
Subsequent to his deposition testimony, however, Gonzalez has been videotaped
on two occasions at the business of D&H Oil and Gas Services, LLC in Laredo,
Texas, apparently working. Gonzalez' expert, Dr. Gerardo Zavala, viewed the
videotapes during his deposition and testified, "it appears that he was working."
(MR 76-78). In addition, Dr. Zavala testified that although Gonzalez complains of
pain every time he examines him; in the video Gonzalez did not appear to be in
pain and looked comfortable. (MR 75-76).
Real Parties in Interest filed their Renewed Motion to Conduct Medical
Examination on July 22, 2015. (MR 38, 66). On August 25, 2015, Respondent, the
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Honorable Monica Z. Notzon, signed an order granting the motion and requiring
Gonzalez to submit to a medical examination to be performed on September 9,
2015 by Dr. Gilbert R. Meadows ("Dr. Meadows"). (MR 41-42).
II. Gonzalez undergoes a different surgery performed by a doctor who was
not previously disclosed.
After Real Parties in Interest filed their Renewed Motion for Medical Exam,
Gonzalez disclosed on August 21, 2015, that he had undergone cervical disk
surgery on July 14, 2015. (MR 57). Such surgery, however, was not performed by
Gonzalez' designated expert, Dr. Zavala, who had been previously deposed on
February 23, 2015, but was perfonned by Dr. Alejandro J. Betancourt ("Dr.
Betancourt"), who had not been disclosed prior to the surgery or the filing of the
renewed motion. (MR 43, 54, 57; RR 13). Furthermore, Dr. Betancourt performed
a one level disk surgery as opposed to the four level surgery recommended by Dr.
Zavala. (RR 9; MR 54, 71-72, 82). Although Gonzalez informed Real Parties in
Interest on May 22, 2015 and May 26, 2015 that he would be moving "forward
with surgery", Gonzalez never advised when the surgery would take place, that the
surgery was going to be performed by a different doctor, nor that he would be
undergoing a different surgery. (MR 79-80). Thus far, Gonzalez hasnot provided
the medical records from Dr. Betancourt or Cornerstone Regional Hospital to Real
Parties in Interest. (MR 54). More importantly. Dr. Zavala's recommendation for
the four level cervical disk surgery is still pending. (RR 9; MR 54, 71-72, 82).
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ARGUMENT
I. Mandamus Standard
Mandamus is an extraordinary remedy that is available only in limited
circumstances. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig.
proceeding) (citing Walker v. Packer, 827 S. W.2d 833, 840 (Tex. 1992) (orig.
proceeding)). To obtain mandamus relief, the relator must show that: (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate appellate
remedy. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex.
2004). A trial court clearly abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Walker v. Packer, 827 S. W.2d 833, 839 (Tex. 1992)(orig. proceeding). In making
the determination of whether the trial court abused its discretion, appellate courts
are mindftil that the purpose of discovery is to seek the truth so that disputes may
be decided by what the facts reveal, not by what facts are concealed. In Re
Colonial Pipeline Co., 968 S. W. 2d 938, 941 (Tex. 1998) (orig. proceeding). With
respect to the resolution of factual issues or matters committed to the trial court's
discretion, an appellate court may not substitute its judgment for that of the trial
court unless the relator establishes that the trial court could reasonably have
reached only one decision and that the trial court's decision is arbitrary and
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unreasonable. Id. at 839-840. This burden is a heavy one. Canadian Helicopters,
Ltd. V. Wittig, 876 S. W. 2d 304, 305 (Tex. 1994) (orig. proceeding).
II. Respondent did not abuse her discretion by concluding good cause was
shown and ordering the medical examination to determine the
condition of Gonzalez' spine and whether he would benefit from
surgery.
A. Standard for granting medical examination.
Rule 204 of the Texas Rules of Civil Procedure provides the standard for
granting a medical examination. A court will order a physical examination only
for good cause and only when the person's mental or medical condition is in
controversy. Tex. R. Civ. P. 204.l(c); Coates v. Whittmgton, 758 S. W. 2d 749,
751 (Tex. 1988). Gonzalez concedes that his medical condition is in controversy.
(RR 6-7).
Good cause requires the showing of three elements. First, the examination
must be relevant to issues genuinely in controversy and produce, or likely lead to,
relevant evidence. Second, the movant must show there is a reasonable nexus
between the condition in controversy and the examination sought. Third, the
movant must show it is not possible to obtain the information through less intmsive
means. In re Transwestem Publishing Company, 96 S.W. 3d 501, 505 (Tex. App.
- Fort Worth 2002, orig. proceeding).
B. Lessor intrusive means requirement has been satisfied.
{03561004. DOCX/ }{03561004. DOCX/ }4
On the requirement of good cause, Gonzalez only raises an issue with the
third requirement; thatthe movant show it is not possible to obtain the information
through less intmsive means. Gonzalez suggests that the Real Parties in Interest
have not met this requirement because they have not deposed Dr. Betancourt who
performed Gonzalez' surgery, have not deposed any ofGonzalez' treating doctors,
and have not conducted post-surgery discovery. Gonzalez' position is
disingenuous; first. Dr. Betancourt was not disclosed by Gonzalez until after the
Real Parties in Interest filed the renewed motion. (MR 43, 54, 57; RR 13). As
such, there was no opportunity to depose Dr. Betancourt prior to the surgery or
prior to filing the motion. Second, Real Parties in Interest would have no need to
depose Gonzalez' other treating providers, as the real issue at hand is the
condition of Gonzalez' cervical spine and whether he would benefit from cervical
disc surgery. Prior to Gonzalez' surgery, the only doctor known to Real Parties in
Interest who extensively treated Gonzalez, and recommended cervical disc
surgery, was Dr. Zavala whom Real Parties in Interest deposed on Febmary 23,
2015. (MR 58). Third, Gonzalez suggests that Real Parties in Interest conduct
post-surgery discovery, however, Gonzalez chose not to disclose his surgery or
the identity of Dr. Betancourt until weeks after Real Parties in Interest filed the
renewed motion. More importantly, it has been two months since Gonzalez'
surgery and he still has not produced the records from Dr. Betancourt and
{03561004. DOCX/ }{03561004. DOCX/ }5
Cornerstone Regional Hospital in connection with the surgery. (MR 54). As
such, Gonzalez' suggestion ofpost surgery discovery is clearly not a viable option
given the delay and lack of information provided by Gonzalez related following
the surgery.
Dr. Meadows has clearly indicated that he has reviewed Gonzalez MRI
films. Dr. Zavala's surgical recommendation and the surveillance video. In
addition, he notes that Gonzalez' EMG and nerve conduction studies
demonstrated no neural pathology related to the cervical spine and that it has been
documented that Gonzalez has a significant component of symptom
magnification. Finally, he states that it is highly unlikely that Gonzalez will have a
positive outcome from surgery. (MR 81-82).
The protocol suggested by Dr. Meadows includes reviewing all pertinent
documents, x-rays and imaging, obtaining a history from Gonzalez, having
Gonzalez fill out a history form and pain diagram, performing a physical exam of
the involved anatomical areas, including a neurological exam, and discerning
clinical impressions. (MR 83). Given this protocol, the medical examination is
critical, as no lesser intrusive means will provide the necessary information.
Where the intended examination is not intmsive, 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
{03561004.DOCX/}{03561004.DOCX/}6
discover facts that may contradict the opinions of the opposing parties expert
witnesses. Exxon Corp. V. Starr, 790 S.W.2d 883, 887 (Tex. App. - Tyler 1990,
orig. proceeding); Sherwood Lane Assocs. v. O'Neil, 782 S. W. 2d 942, 945 (Tex.
App. - Houston [1 Dist.] 1990, no writ. In many cases the treating physician's
notes, the medical records of the complaining party, and expert witness reports
filed by other parties cannot serve these legitimate purposes. In addition, where
the information already available through less intrusive means is inadequate, a
party may obtain a physical examination for which good cause is otherwise
shown. In Re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 870 (Tex. App. -
Dallas 2014, orig. proceeding). Moreover, consideration ofthe interest ofjustice
and the right of the parties to a fair trial requires that when a party asserts a
physical or mental condition as part of a claim or defense, a trial court must be
careful not to prevent the development of medical testimony that would allow the
opposing party to fully investigate the condition the party has placed in issue. In
Re Ten Hagen Excavating, Inc., at 867.
III. Respondent did not abuse her discretion by ordering the medical
examination given that Gonzalez' providers are at odds with each other
regarding the surgery allegedly required.
A. The exam is necessary to draw a clear picture of Gonzalez' spine.
Gonzalez argues that the requested medical examination is moot since he has
undergone surgery. The surgery, however, was not performed by Dr. Zavala who
{03561004. DOCX/ }{03561004. DOCX/ }7
has been caring for Gonzalez for his alleged injury; but rather Dr. Betancourt, who
does not appear to have seen Gonzalez until June or July of 2015; over two years
after the accident. (MR 43, 54, 57; RR 13). Moreover, while Dr. Zavala noted in
his records that Gonzalez needed a four level cervical disc surgery, and further
testified under oath as to this procedure, Dr. Betancourt inexplicably performed a
one level surgery. (RR 9; MR 54, 71-72, 82). Given the great discrepancy
between the recommended surgical procedure and the ultimate procedure
performed, the lack of information regarding the current condition of Gonzalez'
remaining cervical discs, the lack of records regarding the surgery, and the fact that
Zavala's recommendation for the four disc surgery is still pending; the requested
medical examination is relevant and necessary, as it will allow Dr. Meadows to
obtain a clear picture ofGonzalez' spine and ensure that the Real Parties in Interest
will have a fair trial.
Gonzalez argues that because Dr. Meadows has made some conclusions, the
medical examination is not necessary. Gonzalez, however, fails to consider that
Dr. Zavala made a conclusion that Gonzalez needed a four disc surgery, while Dr.
Betancourt disagreed and concluded that Gonzalez only needed a one level
surgery. Perhaps Dr. Meadows is correct in concluding that Gonzalez did not need
any surgery. To the extent that a medical examination can provide the additional
information requested by Dr. Meadows and provide a current picture of Gonzalez'
{03561004. DOCX/ }{03561004. DOCX/ }8
cervical spine, the examination is not moot, but rather relevant and necessary to
ensure a fair trial for Real Parties in Interest.
CONCLUSION
As the record demonstrates. Real Parties in Interest have exhausted lesser
intmsive means to obtain the necessary information sought, but cannot obtain such
information without the requested medical examination. As Respondent
determined following the hearing on the Renewed Motion for Medical
Examination, Real Parties in Interest have shown good cause for the examination.
In addition, not withstanding Gonzalez' one level surgery, Real Parties in Interest
have shown that the requested medical examination is relevant given the great
discrepancy between the recommended four disc surgery and the one disc surgery,
and more importantly, to provide a clear picture of the condition ofGonzalez'
PRAYER
WHEREFORE, PREMISES CONSIDERED, Real Parties in Interest,
Premier and Casillas, respectfully request that this Court deny Relator's Petition
for Writ of Mandamus and vacate its order granting the request for emergency
relief and staying the medical examination. Premier and Casillas pray for such
other andfurther reliefto whichthey maybejustly entitled, atlaw andin equity.
(03561004. DOCX/ }{03561004. DOCX/ }9
Respectfully submitted,
/s/ Stephen D. Navarro
David L. Ortega
State Bar No. 007913 77
Direct Phone: 210-731-6353
Direct Facsimile: 210-731-2953
Email: dortega(2>namanhowell. com
Stephen D. Navarro
State Bar No. 00792712
Direct Phone: 210-73 1-6351
Direct Facsimile: 210-731-2951
Email: snavarro(%namanhowell .corn
Naman Howell Smith & Lee, PLLC
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
ATTORNEYS FOR REAL PARTIES
IN INTEREST, ABEL ALVARADO
CASILLAS AND PREMIER EAGLE
FORD SERVICES, INC.
TRAP 9. 4m(3) CERTIFICATE
Pursuant to Texas Rule ofAppellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 2, 061 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in Microsoft Word, using 14-point
typefacc for all text. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.
/s/ Stephen D. Navarro
Stephen D. Navarro
{03561004. DOCX/ }{03561004. DOCX/ }10
TRAP 52. 3(J) CERTIFICATE
I certify that I have reviewed the petition and have concluded that every
factual statement made herein is supported by competent evidence included in the
appendix and/or the record.
/s/ Stephen D. Navarro
Stephen D. Navarro
CERTIFICATE OF SERVICE
I hereby certify that a tme and correct copy ofthe above and foregoing was
served in accordance with Rule 9. 5 of the Texas Rules of Appellate Procedure on
the following on this 14 day of September, 2015:
Hon. Monica Z. Notzon
Judge 111thJudicialDistrict
1110 Victoria Street
Laredo, Texas 78040
Respondent
Jaime A. Gonzalez, Jr.
Hector L. Rodriguez
Catherine W. Smith
Gonzalez & Associates Law Firm, Ltd.
Summit Park North
817 E. Esperanza Ave.
McAllen, Texas 78501
Attorneys for Relator
David H. Jones
Law Office of David H. Jones
6521 North 10th St., Suite E-l
McAllen, Texas 78504
Attorneys for Relator
/s/ Stephen D. Navarro
Stephen D. Navarro
{03561004.DOCX/ }{03561004. DOCX/ }11
in Re Ruben Gonzalez
Combined Opinion