in Re Washburn Ranch Well-Site Fire Litigation

FILED
14-1030
1/30/2015 8:10:31 PM
tex-3974948
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. 14-1030
JudicialPanel on Multidist~ict Litigation

IN RE WASHBURN RANCH WELL-SITE FIRE LITIGATION

PIONEER NATURAL RESOURCES COMPANY AND PIONEER
NATURAL RESOURCES USA,INC.'S REPLY TO RESPONDENTS
SYLVIA RODRIGUEZ,ET AL,HONEY CUEVAS,ET AL,AMANDA
AMBER GONZALEZ,ET AL,AND OLIVIA RIVERA GONZALEZ'S
RESPONSE TO MOTION FOR TRANSFER

TEKELL,BOOK,ALLEN & NAMAN,HOWELL,SMITH &
MORRIS,L.L.P. LEE,PLLC
Michael P. Morris David L. Ortega
State Bar No. 14495800 State Bar No. 0079377
mmorris@tekellbook.com dortega@namanhowell.com
Kenneth Tekell, Sr. 10001 Reunion Place, Suite 600
State Bar No. 19764000 San Antonio, Texas 78216
ktekell@tekellbook.com Telephone: 210.731.6353
1221 McKinney Street, Suite 4300 Facsimile: 210.785.2953
Houston, Texas 77010
Telephone: 713.222.9542
Facsimile: 713.655.7727

ATTORNEYS FOR PIONEER NATURAL RESOURCES COMPANY AND
PIONEER NATURAL RESOURCES USA,INC.
 TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................3
INTRODUCTION .....................................................................................................6
ARGUMENTS AND AUTHORITIES .....................................................................7
I. Dominant jurisdiction is irrelevant to whether these cases
should be transferred to a pretrial court for consolidated and
coordinated pretrial proceedings ...........................................................7

II. Whether Hidalgo County is a proper venue for the Cuevas and
Gonzalez lawsuits is irrelevant to whether these cases should be
transferred to a pretrial court for consolidated and coordinated
pretrial proceedings ...............................................................................8

III. Pioneer has established that the five underlying cases are
related under Rule 13.2 .......................................................................11

IV. Consolidation will minimize inconvenience and promote the
just and efficient handling of the cases ...............................................18

V. Pioneer did not request transfer to a particular county .......................23

CONCLUSION........................................................................................................24
CERTIFICATE OF SERVICE ................................................................................26

2
 TABLE OF AUTHORITIES
CASES
In r~e Ad Valorem Tax Litigation,
216 S.W.3d 83 (Tex. M.D.L. Pane12006)...........................................................18

In re Ad Valorem Tax Litigation,
287 S.W.3d 517(Tex. M.D.L. Pane12007)...................................................14, 15

In ~e Cano Petroleum, Inc.,
283 S.W.3d 170(Tex. M.D.L. Pane12008).........................................................13

In ~e Continental Airlines Flight 1404,
387 S.W.3d 925 (Tex. M.D.L. Pane12009).........................................................12

In ~e Deep South Cane &Rigging Co.,
339 S.W.3d 395 (Tex. M.D.L. Pane12008).........................................................19

In re Delta Lloyds Insurance Company ofHouston,
339 S.W.3d 383 (Tex. M.D.L. Pane12008)...................................................14, 15

In ~e Digitek Litig.,
387 S.W.3d 115 (Tex. M.D.L. Pane12009).........................................................18

In ~e Hurricane Rita Evacuation Bus Fire,
216 S.W.3d 70(Tex. M.D.L. Pane12006)...............................................12, 13, 19

In ~e Kone, Inc.,
216 S.W.3d 68(Tex. M.D.L. Pane12005).....................................................14, 17

In ~e Louis Dreyfus Pipeline LP Tax Litigation,
339 S.W.3d 378(Tex. M.D.L. Pane12008)...................................................14, 16

In re Missouri Pac. R. R.,
998 S.W.2d 212(Tex. 1999)................................................................................11

In ~e Personal Injury Litigation Against GNeat Lake Dredge &Dock Co.,
283 S.W.3d 547(Tex. M.D.L. Pane12007)...................................................14, 16

3
In ~e Wellington Ins. Co. Hailstorm Litig.,
427 S.W.3d 581 (Tex. M.D.L. Panel 2014).........................................................11

Wyatt v. Shaw Plumbing Co.,
760 S.W.2d 245 (Tex. 1988)..................................................................................7

STATUTES
Tex. Civ. Prac. &Rem. Code § 15.001(a).........................................................10, 11

Tex. Gov't Code § 74.162 .......................................................................................11

Tex. R. Jud. Admin. 13.2(~ .....................................................................................11

Tex. R. Jud. Admin. 13.6(c)......................................................................................9
 NO. 14-1030

IN RE JUDICIAL PANEL

WASHBURN RANCH ON MULTIDISTRICT
WELL-SITE FIRE
LITIGATION LITIGATION

MOTION FOR TRANSFER

Pioneer Natural Resources Company and Pioneer Natural Resources USA,

Inc. ("Pioneer")' replies to the Respondents', Sylvia Rodriguez, Individually and

on Behalf of Roel Rodriguez, Sr., et al ("Rodriguez Respondents"), Honey Cuevas,

et al, Amanda Amber Gonzalez, et al, and Olivia Rivera Gonzalez (collectively

"Cuevas/Gonzalez Respondents") Response to Pioneer Natural Resources

Company and Pioneer Natural Resources USA, Inc.'s Motion for Transfer, and

would respectfully show the following:

1 Pioneer Natural Resources USA, Inc. is the operator, lease holder, and mineral interest owner
in the Washburn Ranch wells in question located in La Salle County where the flash fire made
the basis of the lawsuits filed against Pioneer occurred. Pioneer Natural Resources USA,Inc. is a
corporation incorporated in Delaware with its principal office and principal place of business in
Dallas County, Texas. Pioneer Natural Resources USA, Inc. is a wholly-owned subsidiary of
Pioneer Natural Resources Company, which is a corporation incorporated in Delaware with its
principal office and principal place of business in Dallas County, Texas. Pioneer Natural
resources Company owns 100% of Pioneer Natural Resources USA,Inc.
E
 INTRODUCTION

Dominant jurisdiction is irrelevant to this Court's determination of whether

to transfer the five2 underlying actions to a pretrial court for consolidated and

coordinated pretrial proceedings. Contrary to the Rodriguez Respondents'

assertion, the five underlying actions are related within the meaning of Rule 13

because they all arise from one common-event, namely the flash fire that occurred

at the Washburn Ranch well-site on October 24, 2014, and the core issues of fact

common to all the cases will be the causation of the flash fire and the negligence, if

any, of all the Defendants.3 These common core issues of fact will be determined

by examining the same fact and common expert witnesses. Further, transfer would

be for the convenience of the parties and witnesses and would promote the just and

efficient conduct of actions because it would eliminate duplicative discovery,

2 At the time Pioneer filed its Motion for Transfer on December 10, 2014, there were only four
pending cases. A fifth case has since been filed on January 15, 2015, which is styled Olivia
Rivera Gonzalez, Individually and as Administrator ofthe Estate ofArmando Manuel Gonzalez,
Deceased v. Pioneer Natural Resources, USA, CC Forbes, LLC; Cielo Energy Consulting, LLC;
Weatherford International, LLC; Energes Oilfield Solutions, LLC; Energy Lease Services, Inc.;
BEA Logistics Services, LLC d/b/a Cornell Solutions; and KLX Energy Services, LLC d/b/a
Cornell Solutions, Cause No. C-0205-15-C in the 139th District Court of Hidalgo County, Texas.
See Cuevas/Gonzalez Response Exhibit V. Additionally, CC Forbes, LLC intervened on
December 10, 2014 and Cal Harvey and Christi H. Harvey intervened on December 12, 2014 in
the Rodriguez Dallas County Lawsuit, Cause No. DC-14-12627. See Cuevas/Gonzalez Response
ExsAandB.
3 Defendant EOG Resources, Inc. has recently been non-suited as it had no interest in or

responsibility for the operation of the well-site in question. Recently added Defendants, Energes
Oilfield Solutions, LLC, Energy Lease Services, Inc., Allied Wireline Services LLC, and BEA
Logistics Services LLC, now KLX Energy Services LLC consent to Pioneer's Motion for
Transfer to a MDL pretrial court.
minimize conflicting demands on witnesses, prevent inconsistent decisions on

common issues, and reduce unnecessary travel.

ARGUMENTS AND AUTHORITIES

I. .Dominant jurisdiction is irrelevant to whether these cases should be
transferred to a pretrial court for consolidated and coordinated
pretrial proceedings

Both the Cuevas/Gonzalez and the Rodriguez Responses contend that the

first-filed Bexar County lawsuit is not relevant to this Court's determination of

whether to transfer the five underlying cases into one coordinated pretrial

proceeding. In fact, the Rodriguez Respondents go so far as to contend that the

Dallas County Rodriguez lawsuit is actually the first-filed lawsuit. While it is true

that the Dallas County Rodriguez lawsuit is the first-filed lawsuit against Pioneer

in a county of proper venue (county of Pioneer's principal office in state of Texas)

and may have dominant jurisdiction over the Bexar County Rodriguez Lawsuit

under Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988), because of

the Rodriguez's lack of intent to prosecute the Bexar County lawsuit, that does not

change the fact that the Bexar County lawsuit was filed and is still pending.

Indeed, despite the current Rodriguez attorney's insistence, the fact remains that

the Bexar County Rodriguez lawsuit still remains pending. If and when served,

Pioneer would likely file a motion to transfer venue, or in the alternative, a plea in

abatement. However, determining which court may have dominant jurisdiction is

7
irrelevant to whether the five underlying cases should be transferred under multi-

district litigation rules to one pretrial court for consolidated and coordinated

pretrial proceedings including, but not limited to Texas Rule of Civil Procedure

Rule 12 Motions to Show Authority, venue challenges, and pleas in abatement.

II. Whether Hidalgo County is a proper venue for the Cuevas and
Gonzalez lawsuits is irrelevant to whether these cases should be
transferred to a pretrial court for consolidated and coordinated
pretrial proceedings

The Cuevas/Gonzalez Respondents contend that venue is proper in Hidalgo

County, Texas because BEA Logistics Services, LLC ("BEA") and KLX Energy

Services, LLC("KLX")each have a principal office in Hidalgo County.4 However,

whether venue is proper in Hidalgo County is irrelevant to this Court's

determination of whether to transfer the five underlying cases to one court for

consolidated and coordinated pretrial proceedings. Once again, after a case is

transferred, the pretrial court should at the earliest practical date, conduct a hearing

and enter a case management order which addresses all matters pertinent to the

conduct ofthe litigation, including:

(1) settling the pleadings;
(2) determining whether severance, consolidation, or coordination with
other actions is desirable and whether identification of separable
triable portions of the case is desirable;
(3) scheduling preliminary motions;

4 See Cuevas/Gonzalez Response to Pioneer's Motion for Transfer, p. 6.
8
 (4) scheduling discovery proceedings and setting appropriate limitations
on discovery, including the establishment and timing of discovery
procedures;
(5) issuing protective orders;
(6) scheduling alternative dispute resolution conferences;
(7) appointing organizing or liaison counsel;
(8) scheduling diapositive motions;
(9) providing for an exchange of documents, including adopting a
uniform numbering system for documents, establishing a document
depository, and determining whether electronic service of discovery
materials and pleadings is warranted;
(10) determining if the use of technology, videoconferencing, or
teleconferencing is appropriate;
(11) considering such other matters the court or the parties deem
appropriate for the just and efficient resolution ofthe cases; and
(12)scheduling further conferences as necessary.

Tex. R. Jud. Admin. 13.6(c). Plaintiffs' Rule 11 "Discovery Sharing Plan," while a

tacit admission that an MDL is needed in this case, does not cover all the matters

pertinent to the conduct of this type of litigation such as: (1) motions to show

authority; (2) motions to transfer venue and pleas in abatement; (3) settling

pleadings; (4) severance and consolidation; (5) protective orders protecting

confidentiality of documents; (6) preservation of documents and equipment

involved in the incident; (7) document production; (8) status conferences; (9)

timing of depositions after written discovery; and (10) timing of motions for

summary judgment.

Moreover, at the time Pioneer filed its Motion for Transfer on December 10,

2014, neither BEA nor KLX were named as Defendants in any of the Plaintiffs'

G7
cases.5 Further, even if BEA or KI,X had been named as Defendants before

Pioneer filed its Motion for Transfer, upon information and belief, neither BEA nor

KLX have a principal office for venue purposes in Hidalgo County, Texas. Rather,

BEA/KLX's principal office for venue purposes is in Houston, Harris County,

Texas.6

The Texas Civil Practice &Remedies Code defines "principal office" to

~xu~

a principal office of the corporation ... in this state in which the
decision makers for the organization within this state conduct the
daily affairs of the organization. The mere presence of an agency or
representative does not establish a principal office.

Tex. Civ. Prac. &Rem. Code § 15.001(a) (emphasis added). At the time of the

October 24, 2014 flash fire, no entity by the name of Cornell Solutions, LLC even

existed.' As indicated by Exhibit A, Cornell Solutions, LLC ceased to be an

"active" name on June 19, 2014, because it had been acquired by BEA/KLX. What

offices remained of the former Cornell Solutions, LLC in Hidalgo County were

5 BEA and KLX were not originally named by any of the Plaintiffs as of December 10, 2014,
when Pioneer filed its Motion for Transfer. On December 19, 2014, the Cuevas Plaintiffs, Cause
No. C-8200-14-D in the 206th Judicial District of Hidalgo County, filed their Second Amended
Original Petition, which, for the first time, included Defendants BEA and KLX. On December
23, 2014, the Rodriguez Plaintiffs, Cause No. DC-14-12627 in the 191st District Court of Dallas
County, named BEA and KLX for the first time in their First Amended Original Petition. On
January 13, 2015, Plaintiff Amanda Amber Gonzalez, Cause No. C-8609-14-H in the 389th
Judicial District of Hidalgo County, named BEA and KLX for the first time in her First
Amended Original Petition. On January 15, 2015, Plaintiff Olivia Gonzalez filed her Original
Petition, which included BEA and KLX as named Defendants.
6 KLX's principal office in Texas is located at 2700 Post Oak Blvd., Suite 1400, Houston, Texas
77056.
~ See Exhibit A.
10
and are not the principal offices of either BEA or KLX. Rather, that office is likely

only a branch office and represents the presence of an agency or representative of

BEA and/or KLX in Hidalgo County. In re Missouri Pac. R. R., 998 S.W.2d 212,

220 (Tex. 1999); Tex. Civ. Prac. &Rem. Code § 15.001(a). In Missouri Pacific,

this Court concluded that "a principal office is not an office clearly subordinate to

and controlled by another Texas office. 998 S.W.2d at 220. Here, the BEA/KLX

branch in Hidalgo County, while it may have some autonomy as all branch

operations do, is ultimately an office that is "clearly subordinate to and controlled

by another Texas office," namely the BEA/KLX principal office in Houston,

Harris County, Texas.

III. Pioneer has established that the five underlying cases are related
under Rule 13.2

Under Rule 13.2(f~ cases are related if they involve "one or more common

questions of fact." Tex. Gov't Code § 74.162; Tex. R. Jud. Admin. 13.20. This

Court has concluded "in many of [its] previous common-event cases, relatedness

was easily established because the salient issue in the cases was whether one or

more defendants were liable fog the event." In ~e Wellington Ins. Co. Hailstorm

Litig., 427 S.W.3d 581, 584 (Tex. M.D.L. Panel 2014) (emphasis in original).

Here, the salient issue in all five underlying cases is which contractor/Defendant

supplying services and equipment, if any, is liable for the flash fire that occurred

on the Washburn Ranch well-site on October 24, 2014.

11
 In In ~e Hu~~icane Rita Evacuation Bus Fire, 216 S.W.3d 70 (Tex. M.D.L.

Panel 2006), this Court concluded that eight lawsuits arising from a fire on a bus

were related. 216 S.W.3d at 72. While this Court acknowledged that the defendants

were not identical in all the cases, that different expert witnesses may testify, and

that each individual's damages would be different, it nonetheless concluded that

these cases were related because they "arise from one common event, and no one

has seriously denied that the liability issues in each of them will be substantially

the same ...[and] the lawyers wi11 be examining the same large pool of employees

and fact witnesses." Id. Here, the five underlying cases arise from one common

event—the October 24, 2014 flash fire—and no one has seriously denied that the

liability issues in each will be substantially the same. See id.

Similarly, in In ~e Continental Airlines Flight 1404, 387 S.W.3d 925 (Tex.

M.D.L. Panel 2009), this Court concluded that six suits arising from a fire on an

airplane were related because they all involved the same liability issues and would

rely on testimony from the same fact and common expert witnesses. 387 S.W.3d at

929. In Continental Airlines, Movants, Continental Airlines, contended that all of

the lawsuits incorporated allegation of negligence and negligent hiring, training,

and supervision, i.e., liability issues that would require testimony from the same

fact and expert witnesses. Id. Therefore, this Court concluded that it was "hard

pressed to distinguish the circumstances here from those in In ~e Hurricane Rita

12
Evacuation Bus Fire." Id. Additionally, this Court in In re Cano Petroleum, Inc.,.

283 S.W.3d 170 (Tex. M.D.L. Panel 2008), concluded that seven lawsuits filed

against four oil and gas operators for negligently causing a wildfire were "clearly

related" because "like the Hu~~icane Rita cases, they will explore negligence and

causation issues in one enormous event." 283 S.W.3d at 181.

Here, one common-event is the basis of all the underlying lawsuits—the

flash fire that occurred at the Washburn Ranch well-site on October 24, 2014. The

core issue of fact common to all ofthe underlying lawsuits will be what caused this

flash fire. Therefore, the five underlying cases will explore the negligence, if any,

of the Plaintiffs, contractor employees, contractors/Defendants, and Pioneer and

the causation of one tragic event. Therefore, one should be "hard pressed" to

distinguish these circumstances from those in Hurricane Rita Evacuation,

Continental Airlines, and Cano Petroleum. See Hurricane Rita Evacuation, 216

S.W.3d at 72. Accordingly, the five underlying cases are clearly related under Rule

13 as they all involve the same or identical liability and causation issues.

The Rodriguez Respondents emphasize the erroneous allegation that the

Plaintiffs in all the underlying lawsuits have not sued the same defendants as being

a reason why this Court should not grant Pioneer's Motion.g However,"[w]hile the

rule requires common questions of fact, strict identity of issues and parties in the

8 See Respondents' Response to Pioneer Natural Resources Company and Pioneer Natural
Resources USA,Inc.'s Motion for Transfer, p. 7.
13
cases is not required ..."In Ne Delta Lloyds Insurance Company ofHouston, 339

S.W.3d 383, 386 (Tex. M.D.L. Panel 2008). Therefore, the fact that the defendants

are not identical in all of the five underlying cases is irrelevant for purposes of

determining whether to transfer to consolidated pretrial proceedings. Moreover,

recently filed amendments to pleadings in the Cuevas and Gonzalez lawsuits make

clear that all Plaintiffs have added the same defendants currently named by the

Rodriguez family.

Moreover, any reliance by either the Cuevas/Gonzalez and/or the Rodriguez

Respondents on Delta Lloyds; In ~e Ad Valorem Tax Litigation, 287 S.W.3d 517

(Tex. M.D.L. Panel 2007) ("Valero II"); In re Louis Dreyfus Pipeline LP Ta~c

Litigation, 339 S.W.3d 378 (Tex. M.D.L. Panel 2008); In ~e PeNsonal Injury

Litigation Against Great Lake Dredge &Dock Co., 283 S.W.3d 547(Tex. M.D.L.

Panel 2007); and In re Kone, Inc., 216 S.W.3d 68 (Tex. M.D.L. Panel 2005), to

argue that these cases are not related,9 is misplaced as these cases are

distinguishable from those before the Court today.

Both the Cuevas/Gonzalez and Rodriguez Respondents rely on In ~e Delta

Lloyds to mistakenly claim that to prove cases are related, it is not enough to show

that the cases arise from a common event.10 However, their reliance on Delta

9 See Rodriguez Respondents' Response to Pioneer Natural Resources Company and Pioneer
Natural Resources USA,Inc.'s Motion for Transfer, p. 9.
to See Cuevas/Gonzales Response, p. 10; Rodriguez
Response, p. 9.
14
Lloyds is wholly misplaced because its analysis is "a unique approach" developed

by the Court for cases involving first-party insurance claims arising from a

"weather event." Wellington, 427 S.W.3d at 583. In Delta Lloyds, the common-

event was not an accident for which a defendant could be liable; rather, the

common-event of the underlying cases was a natural disaster, specifically,

Hurricane Rita. 339 S.W.3d at 387. Because the common event was a natural

weather event, for which no defendant could be considered liable, it was "a

common undisputed fact rather than a common question of fact." Id. Therefore,

and contrary to both the Rodriguez Respondents' and the Cuevas/Gonzales

Respondents' assertions of the holding in Delta Lloyds, the Court "held in In ~e

Delta Lloyds ... that a common natural event, without more, does not make cases

related under Rule 13." Wellington, 427 S.W.3d at 583 (emphasis added). Here, the

common-event of the underlying cases is not a natural disaster for which none of

the current Defendants could be held liable; rather, the common-event is wholly

one for which one ofthe Plaintiffs and/or Defendants may be liable.

In re Ad Valorem Tax Litigation ("Valero II") involved the ad valorem

valuation of various properties, which the movant, Valero, asserted was the over

arching common issue of fact that made the cases related. 287 S.W.3d at 519.

However, as this Court concluded, these cases were not related within the meaning

of Rule 13 because each underlying suit required specific inquiries into the

15
valuation of separate and distinct properties. Id. The valuation of these various

properties was an inherently individualized process; therefore, the individual issues

predominated in the underlying cases. Id. Moreover, any reliance on Louis

Dreyfus, is similarly misplaced as this case involved twenty-nine individual

lawsuits challenging the appraisal valuation of a pipeline that ran through multiple

counties. The Court concluded that these cases were not related because "the assets

to be valued encompass more than the pipeline itself' and the valuation is subject

to a number of variables unique to each county. 339 S.W.3d at 382. Therefore,

unlike the inherently individualized valuation of separate properties in Valero II

and a pipeline spanning multiple counties in Louis Dreyfus, the determination of

causation and liability for the flash fire in the fve underlying cases is clearly

related as it does not turn on individual and unique variables.

In Great Lake Dredge, this Court concluded that the underlying cases were

not related because the only commonality between the twenty plaintiffs, who were

injured at different times, in different states, on different vessels, and while

engaging in different activities was whether Great Lakes was liable under the Jones

Act. 283 S.W.3d at 548. Here, unlike the plaintiffs in G~eczt Lake DNedge, the

Plaintiffs were injured in the same accident, at the same time, at the same well-site,

and while engaging in related activities. Therefore, unlike the underlying cases in

Great Lake Dredge, these underlying cases are clearly related under Rule 13.

16
 In In r~e Kone, another case mistakenly relied upon by the Cuevas/Gonzalez

Respondents, involved four cases in which hospital operators sued Kone for breach

of an elevator/escalator maintenance contract. 216 S.W.3d at 69. The Court

concluded that "the facts are substantially individual as they relate to each hospital

facility ... [fJor instances, we have not been shown how the facts discovered from

witnesses on the issue of breach of contract and damages in the Harris County case

will have any relation to or bearing on the ultimate issues in the Bowie, Cameron,

and Nueces County cases." Id. at 70. Therefore, the Court decided not to transfer

these cases because each case involved a separate hospital facility and "local"

facts. Id. However, as Pioneer discussed in its Motion to Transfer and continues to

discuss in this Reply, the facts discovered from the witnesses of each of the

underlying cases will have a relation to and a bearing on the ultimate liability

issues in all ofthe underlying cases.

The salient issues in the five underlying cases are the cause and origin of the

fire and whether one of the Plaintiffs, contractor employees, or Defendants may be

liable for the October 24, 2014 flash fire. This issue will naturally explore common

questions of fact regarding the causation of the flash fire and the negligence, if any,

of the Plaintiffs and/or Defendant contractors supplying services and equipment to

the well-site, and the leaseholder and mineral interest owner. It will also rely on

17
testimony from the same fact and common expert witnesses. Therefore, the five

underlying cases are related within the meaning of Rule 13.

IV. Consolidation will minimize inconvenience and promote the just and
efficient handling of the cases

Assigning the underlying five cases to one judge for pretrial matters will

minimize the inconvenience to the witnesses and parties and will promote the just

and efficient handling of the cases by eliminating duplicative discovery,

minimizing conflicting demands on witnesses, and reducing unnecessary travel.

See In ~e Digitek Lztig., 387 S.W.3d 115, 116-17(Tex. M.D.L. Panel 2009).

In discussing whether transfer would further convenience and efficiency,

this Court has previously held that:

[A] party seeking a pretrial MDL court need not show that parties or
witnesses have already been inconvenienced. But that holding does
not mean that it is sufficient to make the bare assertion that witnesses
might be inconvenienced. The circumstances of the litigation must at
least make the assertion plausible.

In re Ad Valorem Tax Litigation, 216 S.W.3d 83, 86 (Tex. M.D.L. Panel 2006)

("Valero 1") (emphasis added). The circumstances of the five underlying and

related cases, i.e., the common questions of fact regarding negligence and

causation, make the assertion that the witnesses and parties will be inconvenienced

very plausible.

18
 Pioneer has identified fact and common expert witnesses who will

undoubtedly be nearly identical in each of the cases, e.g., those who witnessed the

flash fire; those who responded to the scene to provide rescue; those who treated

the injured at the scene; those who transported the injured to the hospital; those

who treated the injured at Brooke Army Medical Center Hospital; those working at

the well-site immediately before and at the time of the flash fire; and those who

investigated the accident. "When rule 13 voices its concern for efficiency and for

the convenience of the parties and witnesses, it has such persons in mind." In re

Deep South Cane &Rigging Co., 339 S.W.3d 395, 397(Tex. M.D.L. Pane12008)

(concluding that listing the employees who assembled the crane in Harris County,

those who witnessed the crane's collapse, those who responded to the scene to

provide rescue and medical care, and those who investigated it as potential

witnesses was sufficient to establish that consolidation would minimize

inconvenience to the witnesses and parties and promote the just and efficient

handling of the case); see also Hu~Nicane Rita Evacuation, 216 S.W.3d at 72

(concluding that the convenience and efficiency established when lawyers would

be examining the same large pool of employees and fact witnesses including those

who dealt with the bus, those who witnessed the fire, those who responded to the

scene to provide rescue and medical care, and those who investigated it).
 And while the identification of such fact and common expert witnesses is

sufficient to establish convenience and efficiency, in an attempt to be even more

clear, it is highly likely that Roel Rodriguez, Jr., Jason Rodriguez, Cal Harvey,

Carlos Hughes, and Jose Robert Galvan (both of whom are asserting personal

injury claims and represented by attorney Chad Matthews who has not yet filed

suit), Antonio (Tony) Salazar (who is represented by attorney) ,Kenny Havens,

Abhi Banerjee, Aaron Klausmeier, and Trey Means (who is apparently seeking

representation) will be called to testify in all five of the underlying cases, as they

are all key witnesses to the state of the well-site immediately before the flash fire

and of the flash fire itself. Moreover, while the medical providers that treated Roel

Rodriguez Sr., Roel Rodriguez Jr, John Cuevas, Armando Gonzales, and Cal

Harvey will not necessarily be identical, there will necessarily be some overlap

especially considering that all five injured workers were treated at the Brooke

Army Medical Center Hospital in its Burn Intensive Care Unit, which upon

information and belief, has a relatively small number of doctors, burn surgeon

specialists, burn care nurses, and burn care physical therapist assigned to treat and

care for severely burned patients, and because of the specialized nature of the

I.C.U. and burn care unit, it is highly likely that some, if not all, of the plaintiffs'

treating medical providers overlap.

20
 Further, the results of the investigation to date have identified a number of

pieces of equipment utilized at the well-site that need further inspection including

an extension cord, hydraulic pump, light-plant, packer, manifold, choke, piping,

open top tank with gas buster, and safety trailer package. A single pretrial court

operating under Rule 13 is perfectly situated to preside over the preservation,

inspection, testing, both non-destructive and destructive, of equipment and other

evidence that is key to determining cause and liability issues in this tragic fire

incident, thereby conserving party resources, eliminating duplicative discovery,

avoiding potential spoliation disputes, serving the convenience of the parties and

witnesses, and promoting the just and efficient conduct of this litigation. A draft

proposed protocol for inspection and non-destructive testing has been circulated

but no consensus has been reached. See E~ibit B. While some of the equipment is

in Denton Texas, the packer is in Pawnee, Bee County, Texas, and the safety trailer

is in Jourdanton, Atascosa County, Texas, and the piping, manifold, choke, and

open-top tank with gas buster is in Alice, Jim Wells County, Texas.

Moreover, unlike Valero's assertion in Valero I that the only witnesses who

would be subject to multiple demands would be its own corporate witnesses, here,

Pioneer has identified witnesses beyond its own corporate witnesses who would be

inconvenienced. See Ad Valorem (Valero 1~, 216 S.W.3d at 86.

21
 Further still, as evidenced by the voluminous written discovery already

being sought by plaintiffs,l'discovery for these five underlying and related cases

"will be time consuming and costly to both the parties and witnesses, and both the

discovery requests and responses are likely to be identical in each of the four

cases." Delta Lloyds, 339 S.W.3d at 389; see also Continental Airlines, 387

S.W.3d at 930 (concluding consolidation would promote efficiency in light of

already submitted 245 requests for production and 49 interrogatories).

Finally, the fact that the Cuevas/Gonzalez Respondents felt compelled to

draft afive-page "Discovery Sharing Plan" is definitive proof that having a

consolidated pretrial proceedings for the underlying cases would conserve party

resources, eliminate duplicative discovery, serve the convenience of the parties and

witnesses, and promote the just and efficient handling of these cases. And while

the Rule 11 "Discovery Sharing Plan" touted by counsel for Cuevas/Gonzalez

Respondents is a good, albeit incomplete, start towards a case management plan

contemplated by Rule 13.6(c), all of the parties to the underlying lawsuits have not,

and it is unlikely that they will, agree to the limited Plaintiffs "Discovery Sharing

Plan." Further, the "Discovery Sharing Plan" does not and cannot address potential

docket control order conflicts among all the underlying cases, or potential
11
To date from the various Plaintiffs, Pioneer has received almost 200 requests for production,
40 interrogatories, 22 requests for admissions, and multiple requests for disclosure. Additionally,
multiple inspections have been requested and inspections and testing need to be conducted of the
light tower, hydraulic pump, extension cord, packer, piping manifold, choke, gas buster or
separator, open top tank, and safety trailer.
22
conflicting hearing dates, or the other mandates set forth in Rule 13.6(c) as

discussed above in Section II. These are conflicts that only a pretrial MDL court

can address in a comprehensive fashion. Moreover, if anyone violates the proposed

"Discovery Sharing Plan," the other parties will be left without recourse. Whereas

if a party violates the orders of the pretrial court, including a comprehensive case

management plan, the other parties will have known and immediate ways to ensure

compliance before one pretrial judge.

V. Pioneer did not request transfer to a particular county

Contrary to the Rodriguez Respondents' assertion,12 Pioneer did not request

transfer to a particular county. Rather, Pioneer simply wanted to apprise the Court

of the residence and location of Plaintiffs, potential witnesses, and counsel so the

Court would be further informed in making its decision regarding the convenience

of the parties and witnesses. Since filing the Motion for Transfer, Plaintiffs have

added BEA/KLX (principal office located in Harris County, Texas and attorney of

record located in Dallas County, Texas); Energy Leasing (principal office located

in Dewitt County, Texas and attorney of record located in Dallas County, Texas);

Energes (principal office located in Harris County, Texas and attorney of record

iz See Respondents' Response to Pioneer Natural Resources Company and Pioneer Natural
Resources USA,Inc.'s Motion for Transfer, p. 12.
23
located in Dallas County, Texas); Allied Wireline (principal office located in

Harris County, Texas and attorney of record located in Harris County, Texas).

CONCLUSION

For all of these reasons, Pioneer and the other potential Defendants request

that the Panel grant this motion and transfer related cases in Appendix A, attached

to its Motion to Transfer, along with all tag-along cases, to an appropriate pre-trial

judge for consolidated and coordinated pre-trial proceedings. Pioneer further

respectfully requests a stay of all trial court proceedings until a ruling is made by

the MDL Panel. Pioneer requests such other and further relief to which it may

show itselfjustly entitled.

Respectfully submitted,

TEKELL,BOOK,ALLEN &MORRIS,L.L.P.

Michael P. Morris
State Bar No. 14495800
mmorris@tekellbook.com
Kenneth Tekell, Sr.
State Bar No. 19764000
ktekell@tekellbook.com
1221 McKinney Street, Suite 4300
Houston, Texas 77010
Telephone: 713.222.9542
Facsimile: 713.655.7727

24
NAMAN,HOWELL,SMITH &LEE,PLLC
David L. Ortega
State Bar No. 0079377
dortega@namanhowell.com
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: 210.731.6353
Facsimile: 210.785.2953

ATTORNEYS FOR PIONEER NATURAL
RESOURCES COMPANY AND PIONEER
NATURAL RESOURCES USA,INC.

25
 CERTIFICATE OF SERVICE

I certify that on January 30, 2015, true and correct copies of this Motion for
Transfer were provided to the following, as required by Texas Rule of Judicial
Administration Rule 13.3.0 and (h).

Honorable Blake A. Hawthorne Via eFile
Clerk, Multidistrict Litigation Panel
201 West 14th Street, Room 104
Austin, Texas 78701
blake.hawthorne@courts.state.tx.us
Claudia.jenks@courts.state.tx.us

Honorable David Peeples
Fourth Administrative Judicial Region
Bexar County Courthouse
100 Dolorosa
San Antonio, Texas 78205

Honorable Catherine Stone
Justice, Fourth Court of Appeals
300 Dolorosa, Suite 3200
San Antonio, Texas 78205

Honorable Ann McClure
Justice, Eighth Court of Appeals
500 East San Antonio, Room 1203
El Paso, Texas 79901

Honorable Elizabeth Lang-Miers
Justice, Fifth Court of Appeals
George L. Allen, Sr, courts Bldg.
600 Commerce Street, Second Floor
Dallas, Texas 75202

Honorable Harvey G. Brown
Justice, First Court of Appeals
301 Fannin Street
Houston, Texas 77002

26
Robert C. Hilliard Via Efile Collen A. Clark Via Efile
Rudy Gonzales, Jr. The Clark Firm
Catherine D. Tobin 2911 Turtle Creek Blvd., Suite 1400
John B. Martinez Dallas, Texas 75219
Hilliard Munoz Gonzales LLP cclark@clarklawgroup.com
719 S. Shoreline Blvd., Suite 500
Corpus Christi, TX 78401 Omar G. Alvarez
bobh@hmglawfirm.com O.G. Alvarez &Associates, P.C.
rudyg@hmglawfirm.com 10001 Reunion Place, Suite 600
Catherine@hmglawfirm.com San Antonio, Texas 78216
john@hmglawfirm.com ogalvarez@oglavarezlaw.com
Plaintiffs'Attorneyfor: John Cuevas Plaintiffs'Attorneysfor: Sylvia
and Honey Cuevas,Ind. And as Next Rodriguez, Ind.. And on behalfof
Friend ofKinsley Jo Cuevas and Roel Rodriguez, Sr. and Roel
John Weston Cuevas, Minors v. Rodriguez, Jr., Roel Rodriguez, Sr.,
Pioneer Natural Resources Roel Rodriguez, Jr., Sylvia
Company, CC Forbes, LLC, Cornell Rodriguez, as Newt Friend of
Solutions, LLC,EOG Resources, Rolando Rodriguez, a Minor, Sarita
Inc., and appointed by order Rule Rodriguez, a Minor, Anselma
13.3(h) to serve documents on parties Rodriguez, a Minor,
not aligned with Pioneer Stephanie Rodriguez and Jason
Rodriguez

27
Exhibit "A"
 1/29/2015 BUSINESS ORGANIZA710NS INQUIRY- VIEW ENTITY

DEPUTY SECRETARY of STATE
COBY SHORTER, III
UCC ~ Business Organizations ~ Trademarks ~ Notary ~ Account ~ Help/Fees ~ Briefcase ~ Logout
BUSINESS ORGANIZATIONS INQUIRY -VIEW ENTITY
Filing Number: 800992040 Entity Type: Domestic Limited Liability
Company (LLC)
Original Date of Filing: June 13, 2008 Entity Status: In existence
Formation Date: N/A
Tax ID: 12628492998 FEI N:
Duration: Perpetual

Name: CSOS, LLC
Address: PO BOX 6105
MCALLEN, TX 78502 USA

ASSOCIATED
REGISTERED AGENT FILING HISTORY NAMES MANAGEMENT ASSUMED NAMES ENTfTIES

Name Inactive
Name Name Status Name Type Date Consent Filing #
Cornell Solutions, L.L.C. Inactive Legal September 10, 0
2008 '
Cornell Solutions, L.L.C. Prior Legal June 19, 2014 0
CSOS, LLC In use Legal

~TOrder^~ ~ Return to Search__l

Instructions:
4~ To place an order for additional information about a filing press the 'Order' button.

https:!/direct.sos.state.bcus/corp_inquiry/corp_i nq uir~entity.asp?spag e=names&:Spag efrom=&:Sfi li ng_number=800992040&:Ndocument_number=5887638900... 1/1
 secretary of State Filed in the Office of the
'.O. Box 13697 Secretary of State of Texas
,ustin, TX 78711-3697 Filing #: 800992040 06/19/2014
AX: 512/463-5709
Document #: 549807670003
Certificate Image Generated Electronically
ng Fee: See instructions
of Amendment for Web Filing

Statement of Approval
-;The amendment has been approved in the manner required by the Texas Business Organizations Code and by the
j'governing documents of the entity.
'1 _ __ __ _ ___
_ ._.._ .. _ _ _._.._ ,_.,.e_ Effectiveness
__ .,_~_ ..,_., of Filing
~.._. . _,...~ ,__ .,.... .__.~n- _..e ,_._. _ _ _ ,.~_,. ,r _- __ _._ ..~. ~--
~A. This document becomes effective when the document is filed by the secretary of state.
_..-- -
rB. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its
filing by the secretary of state. The delayed effective date is:

_ _.___
Execution
The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false
'or fraudulent instrument and declares under penalty of perjury that the undersigned is authorized under the Texas
';Business Organizations Code to execute the filing instrument.
gate: June 19, 2014 Carlos I. Garza
jj Signature of authorized person

FILING OFFICE COPY
Exhibit "B"
 DRAFT OF PROPOSED PROTOCOL

A number of items were collected at the Washburn Ranch well-site in question for
preservation due to the inclement weather conditions which items are currently in the custody of
Mark Goodson Engineering, 1500 Spencer Road, Denton, Texas 76205. Those items include:

1. Southwire extension cord;
2. Hytorc hydraulic pump;
3. Allmand light-plant;
4. Other items including hard hats,safety glasses,cigarette butts, partially melted
buckets, a complete list of which will be made available.

Mark Goodson ofMark Goodson Engineering has suggested the following protocol to govern
and guide anon-destructive examination ofthe items listed below:

1. Southwire extension cord;
Photograph
Verify H N G continuity, polarity
FTIR on jacketing
Dielectric leakage at 120 volts, 500 volts
Reflect back outerjacketing, check for thermal insulation damage to inner insulation on the
H N and G conductors
Examine the male blades for evidence of arcing / overcurrent
Xray both male and female ends

2. Hytorc hydraulic pump;
Measure resistances with DMM on line cord,switches OFF and ON.All three combinations
of HNG
Examine pump motor for damage
Examine bottom of pump chassis for arc damage
Retain sample of hydraulic oil for analysis
Xray switch control box
Use widow maker,float ground ofunit. Power on at 120 VAC,measure V,I, PF, VA,VAR
W
With a 10 K load resistor, apply 120 VAC, power pump ON. Place load resistor between
chassis ground on pump and ground ofelectrical power source. Measure any leakage current
across lOK load resistor.
Repeat above, with 1 K resistor swapped for 10 K.
Repeat above, using 500 ohm load resistor rather than 1 k
Ifthere is a leakage current problem,decide as to whether to further isolate problem — IE,to
locate source of leakage paths)
Decide as to whether or not to Hi Pot or megger the windings, switches
Determine whether or not unit should be torn down
3. Allmand light-plant;
Photograph unit
Denote positions of all switches, breakers
Note fuel level
Note settings on all controls
Fire up unit, measure output F and V unloaded out of GFI
Let idle(30 minutes), measure exhaust gas temperature, temperature on exhaust manifold
Using FLIR, determine hot spots) on unit, measure temperatures
Power off unit
Check wiring on thermal CB (20 ampere), GFI
Remove GFI and breaker
Xray(and if necessary, CT )both breaker and GFI
Test GFI using Agilent 6813A as source —use TRIP button
Develop timing curve (Fault current v trip time)for GFI using UL 943 criterion
Verify operation of N-G fault detection on GFI
Apply 40 A to CB —measure trip time

4. Other items requiring an agreed inspection protocol may include:

(a) Weatherford Packer;
(b) C.C. Forbes manifold, choke, piping and open top tank with gas buster; and
(c) Energes Safety Trailer package.

Further,any inspection or examination ofthe items listed above,shall benon-destructive and
consist ofvisual,tactile, photographic,video,and x-ray examinations only,unless(a)a prior
written agreement is signed by counsel for all parties specifically allowing for the proposed
specified destructive testing or (b) a prior order is entered by a court of competent
jurisdiction expressly authorizing the specific proposed destructive testing obtained after the
filing of a motion and a properly noticed hearing.

All digital data acquired — SEM,microscope,FLIR,FTIR,CT scans will be made available
to all participants.

The following equipment is available at Mark Goodson Engineering:

IRT 130 KV Xray, MF,RT
Nikon 225 KV Xray, MF,RT, CT Scan
Vitrek 9441 dielectric tester
Megger, 500 volt
FTIR, Nicolet 6700
Hitachi 5-3000 SEM w ~DX
Leica MZ7.5 stereoscope
AGEMA / FLIR thermal camera
Agilent / HP 6813A power supply
O'scope

2