ACCEPTED 01-15-00219-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 5:11:52 PM CHRISTOPHER PRINE CLERK
No. 01-15-00219-CV
FILED IN 1st COURT OF APPEALS IN THE HOUSTON, TEXAS COURT OF APPEALS 3/9/2015 5:11:52 PM FOR THE 1ST DISTRICT OF TEXAS CHRISTOPHER A. PRINE AT HOUSTON, TEXAS Clerk
IN RE BAC TRAC PLUMBING, LP AND JOSE GRAJALES,
Relators.
RELATORS’ MOTION FOR EMERGENCY STAY OF TRIAL SETTING
ORIGINAL PROCEEDING FROM THE 215th DISTRICT COURT OF HARRIS COUNTY, TEXAS, THE HONORABLE ELAINE H. PALMER, PRESIDING
MUNSCH HARDT KOPF & HARR, P.C. Stephen Gibson State Bar No. 07866000 Tracy McCreight State Bar No. 24037064 EMERGENCY RELIEF KANE RUSSELL COLEMAN & LOGAN, PC REQUESTED Chris C. Pappas State Bar No. 15454300 Darrell R. Greer State Bar No. 08413500
ATTORNEYS FOR RELATORS
PAGE 1 OF 11 MHDOCS 6000402_2 15565.1 RELATORS’ MOTION FOR EMERGENCY STAY TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
I. INTRODUCTION The underlying proceeding is a personal injury suit arising out of the
collision of a vehicle driven by Donna Dudley (“Plaintiff”) with a truck owned by
Bac Trac Plumbing, LP driven by Jose Grajales (the “Collision”). The underlying
suit is Donna Dudley v. Bac Trac Plumbing, LP and Jose Grajales, Cause No.
2013-12224 in the 215th District Court of Harris County, Texas filed February
28, 2013 (the “Underlying Suit”). The primary disputed issue in the Underlying
Suit is whether there exists a causal connection between the Collision and certain
damages claimed by Plaintiff. Bac Trac Plumbing, LP and Jose Grajales
(“Defendants” or “Relators” collectively) are the Defendants in the Underlying
Suit.
On February 27, 2015, Respondent, the Hon. Elaine H. Palmer, presiding
judge of the 215th District Court of Harris County, Texas (the “Trial Court”),
excluded testimony from Defendants’ only retained expert witnesses, Thomas D.
Greider, M.D. and Walter R. Sassard, M.D. (Exh. A hereto, the “Exclusion
Order”). The Exclusion Order provides that “all testimony and/or evidence
provided by Thomas D. Greider, M.D. and Walter R. Sassard, M.D. should be
excluded from trial.” The Underlying Suit is set for trial on a two-week trial
docket that begins on March 9, 2015. (Exh. B hereto, Order Resetting Trial). PAGE 2 OF 11 MHDOCS 6000402_2 15565.1 When the parties appeared for a March 2, 2015, docket call Plaintiff announced
ready. Defendants moved for the continuance allowed under Texas Rule of Civil
Procedure 193.6(c). (Exh. C hereto, Defendants’ Motion for Continuance).
Enforcing its previous Docket Control Order, the Trial Court denied the motion for
continuance. (Exh. D hereto, Transcript on Motion for Continuance).
By its Petition for Writ of Mandamus (“Writ Petition’) filed herewith,
Defendants seek to vacate the Trial Court’s Exclusion Order as an abuse of
discretion because good cause for any failure of Defendants to timely make,
amend, or supplement its expert designations exists. Moreover, Plaintiff is neither
unfairly surprised nor prejudiced by any alleged deficiency in Defendants’
discovery response. Defendants further seek to vacate the Trial Court’s March 2,
2015 denial of Defendants’ Motion for Continuance because trial will be a
meaningless exercise. As explained more fully in the Writ Petition, the Exclusion
Order for Defendants’ medical expert effectively eviscerates Defendants’ ability to
present their defense that the Collision was not the cause of all or part of the
damages claimed by the Plaintiff.
Emergency relief to stay trial set for as early as March 10, 2015 is necessary
because, unless a stay of the trial setting is granted, Defendants will be forced to
proceed at trial without an expert to testify disputing Plaintiff’s damages.
Defendants must not be forced to suffer such irreparable injury as a result of the
PAGE 3 OF 11 MHDOCS 6000402_2 15565.1 Trial Court’s failure to comply with relevant guiding legal principles. Emergency
relief staying the proceedings in the Underlying Suit is also necessary to preserve
this Court’s jurisdiction to issue extraordinary writs. Unless the proceedings are
stayed, the relief requested in the Writ Petition will become moot. In re New
Century Mtg. Corp. of California, No. 08-03-00521-CV, 2004 WL 100506, *1
(Tex. App. –El Paso 2004, orig. proceeding).
II. IDENTITY OF PARTIES
Petitioner is Bac Trac Plumbing, LP and Jose Grajales (“Defendants” or
“Relators” collectively).
The real party in interest is Donna Dudley (“Plaintiff”), Plaintiff in the
Underlying Suit.
The Respondent is Judge Elaine H. Palmer, presiding judge of the 215th
District Court of Harris County, Texas (the “Trial Court”).
III. STATEMENT OF FACTS
On February 27, 2015, the Trial Court clearly abused its discretion by
granting Plaintiff’s Motion to Exclude Thomas D. Greider, M.D. and Walter R.
Sassard, M.D. On March 2, 2015, the Trial Court again abused its discretion in
denying Defendants’ Motion for Continuance allowed by Texas Rule of Civil
Procedure 193.6(c).
PAGE 4 OF 11 MHDOCS 6000402_2 15565.1 Without emergency relief, Defendant will be forced to trial as early as
Tuesday, March 10, 2015 with virtually no defense to Plaintiff’s claims for
damages. The Trial Court’s abuses of discretion in granting the Motion to
Exclude, as further described in Relators’ Writ Petition, resulted in an Order being
issued that, absent emergency relief by this Court, will substantially prejudice
Defendants and cause Defendants to suffer an irreparable injury. The Writ Petition
is incorporated herein by reference the same as if set forth at length.
This Motion is presented to stay the trial of the Underlying Suit. This trial is
currently set on the two-week docket beginning March 9, 2015, and may be called
for trial at any time, and as early as March 10, 2015. A stay of those proceedings
is necessary to prevent the relief requested in the Writ Petition from becoming
moot and is thereby necessary to preserve the jurisdiction of this Court over the
Writ Petition that Defendants file concurrently with this Motion.
IV. CERTIFICATE OF COMPLIANCE ATTACHED
Relators attach a certificate of compliance certifying that on March 9, 2015,
in accordance with Texas Rule of Appellate Procedure 52.10(a), it notified the real
party in interest and the respondents by electronic mail, facsimile, and/or telephone
call that a motion for temporary relief had been filed.
PAGE 5 OF 11 MHDOCS 6000402_2 15565.1 V. AUTHORITY TO ISSUE AND NECESSITY OF EMERGENCY STAY TO PRESERVE STATUS QUO
This Court may grant temporary relief pending its determination of
Defendants’ Petition. Tex. R. App. P. 52.10(b). Mandamus is the most appropriate
remedy because the deprivation is one that cannot be corrected on appeal and will
affect Defendants’ ability to defend this case at trial. See In re Allied Chemical,
227 S.W.2d 652, 658 (Tex. 2007); see also Able Supply Co. v. Moye, 898 S.W.2d
776, 772 (Tex. 1995). This emergency stay is necessary to preserve this Court’s
jurisdiction to consider the merits and to maintain the status quo until the Petition
can be heard and decided. See In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San
Antonio 1995, orig. proceeding).
As more thoroughly demonstrated in the Writ Petition, Defendants are likely
to prevail as to the relief requested therein. Nevertheless, if Defendants are forced
to trial before this Court renders its decision on Defendants’ Petition, Defendants
will suffer irreparable harm.
The Trial Court’s Exclusion Order and denial of the 193.6 (c) continuance is
effectively a “death penalty” sanction. Defendants’ central defense is that the
Collision did not cause all or many of the injuries or conditions for which Plaintiff
seeks damages. By excluding the testimony of a medical expert necessary to
support this defense, the Trial Court has effectively made the trial an empty
exercise and waste of judicial resources. Without such an expert, Defendants’
PAGE 6 OF 11 MHDOCS 6000402_2 15565.1 ability to present a viable defense is so compromised that it must be subject to
immediate correction by writ of mandamus, not correction after a pro forma trial.
VI. CONCLUSION AND RELIEF REQUESTED
For the foregoing reasons as well as those more fully stated in the Writ
Petition, good cause exists for this Court to grant this emergency request for
temporary relief. See Tex. R. App. P. 52.10. Defendants are likely to prevail on
the merits of the Writ Petition filed simultaneously herewith. Without a stay of the
Underlying Suit pending resolution of the Writ Petition, Defendants will be forced
to trial without an expert witness to dispute Plaintiff’s claim for damages and the
jurisdiction of this Court over the Writ Petition may be lost due to the relief
requested in the Writ Petition becoming moot.
For these reasons, Defendants request this Court enter an order staying the
trial setting of the Underlying Suit to maintain the status quo of the parties and
preserve this Court’s jurisdiction pending consideration of the merits of the Writ
Petition.
PAGE 7 OF 11 MHDOCS 6000402_2 15565.1 Dated: March 9, 2015 Respectfully submitted,
By: /s/ Stephen Gibson Stephen Gibson State Bar No. 07866000 Tracy McCreight State Bar No. 24037064 MUNSCH HARDT KOPF & HARR, P.C. 500 N. Akard Street, Suite 3800 Dallas, TX 75201-6659 United States Telephone: (214) 855-7500 Facsimile: (214) 855-7584 sgibson@munsch.com tmccreight@munsch.com
-and-
Chris C. Pappas State Bar No. 15454300 Darrell R. Greer State Bar No. 08413500 KANE RUSSELL COLEMAN & LOGAN, PC 919 Milam, Suite 2200 Houston, TX 77002 Telephone: (713) 425-7400 Facsimile: (713) 425-7700 cpappas@krcl.com dgreer@krcl.com
ATTORNEYS FOR BAC TRAC PLUMBING, LP and JOSE GRAJALES
PAGE 8 OF 11 MHDOCS 6000402_2 15565.1 CERTIFICATE OF CONFERENCE I certify that I concurrently conferred with Nomaan Husain/Leigh S. Montgomery by email correspondence and have attempted in good faith to reach an agreement about the foregoing Motion. We have been unable to reach an agreement because opposing counsel opposes the relief Relators seek herein.
/s/ Darrell Greer Darrell Greer
PAGE 9 OF 11 MHDOCS 6000402_2 15565.1 CERTIFICATE OF SERVICE I hereby certify that on March 9, 2015, I served a true and correct copy of the foregoing document on all parties listed below as follows:
Via E-file, Email, and First Class Via EMail and First Class Mail Mail Honorable Elaine H. Palmer Nomaan Husain Presiding Judge, 215th District Leigh S. Montgomery Court, Harris County, Texas YOUNG & HUSAIN, PLLC Harris County Civil Courthouse 2700 Post Oak Blvd., Suite 1220 201 Caroline, 13th Floor Houston, Texas 77056 Houston, Texas 77002 nhusain@yhlawfirm.com Tricia_Griggs@justex.net lmontgomery@yhlawfirm.com Telephone: (713) 621-8900 Facsimile: (713) 621-8909
Attorneys for Donna Dudley
/s/ Tracy McCreight Tracy McCreight
PAGE 10 OF 11 MHDOCS 6000402_2 15565.1 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 52.10(a), I hereby certify that on March 9, 2015, I notified the parties listed below by email, facsimile, telephone call, and/or electronic filing service that a motion for temporary relief had been filed:
Nomaan Husain Honorable Elaine H. Palmer Leigh S. Montgomery Presiding Judge, 215th District YOUNG & HUSAIN, PLLC Court, Harris County, Texas 2700 Post Oak Blvd., Suite 1220 Harris County Civil Courthouse Houston, Texas 77056 201 Caroline, 13th Floor nhusain@yhlawfirm.com Houston, Texas 77002 lmontgomery@yhlawfirm.com Tricia_Griggs@justex.net Telephone: (713) 621-8900 Facsimile: (713) 621-8909
PAGE 11 OF 11 MHDOCS 6000402_2 15565.1 EXHIBIT A 2/6/20155:18:26 PM Chris Daniel - District Clerk Harris County . Envelope No: 406283,2 By,:SPENCER,JEANETTA Filed: 2/6/20155:18:26 PM
DONNA DUDLEY CAUSE NO. 2013-12224
§ IN THE DISTRICT COURT OF P;;Xpx § § VS. § HARRIS COUNTY, TEXAS § BAC TRAC PLUMBING, LP AND § JOSE GRAJALES § 215th'JUDIC~ISTRICT
ORDER (j ~ Q~
~ . Q~ •
ON THIS DAlE, the Court heard Plaintiffs Motion to Exclud~mas D. Greider, MD. and Walter
R. Sassard, MD .. After consideration of'the same, the Court is e~ opinion that Plaintiff's motion should ~ be granted. Q(f[p) It is therefore, ORDERED, ADJUDGED AND DOOREED that Plaintiff's Motion to Exclude Thomas . §::C/ D. Greider, MD. and Walter R. Sassard, MD is ~ED, and all testimony and/or evidence provided by
Thomas D. Greider, M.D. and Walter R. sassarb.D. should be excluded from trial in the above captioned @ and numbered cause.
o ~
~ (f::I;t:£-:~ ,2015,
;{fJ JUDGE PRESIDlNG
~ f!;::Q ~
RECORDER'S MEMORAHOUM ThiS Instrument Is of poor quality at the time of Imaging ., ,
APPROVED AS TO FORM AND SU~STANCE:
YOUNG & HUSAIN, P.L.L.C.
By: lsi Leigh S. Montgomery NOMAAN HUSAIN State Bar No. 24000743 LEIGH S. MONTGOMERY State Bar No. 24052214 2700 Post Oak Blvd. Suite 1220 Houston, Texas 77056 (1~ (713) 621-8900 telephone ""~ (713) 621-8909 facsimile COUNSEL FOR PLAINTIFF ,,~ ;if Q~ ,,~ CERTIFICATE OF ~VICE @} That on this the 6TIl day of February, 2015, I here~rtify that a true and correct copy of the above and foregoing instrument was forwarded pursu8J1~ the Texas Rules of Civil Procedure as follows: ~~ ViaE-Filingand E-Service rF'~' Mr. Chris C. Pappas ~ Mr. Darrell Greer g Kane, Russell, Coleman & Logan, P~ 919 Milam, Suite 2200 " (Q Houston, Texas 77002 &~ (/~~
By: lsi Leigh S. Montgomery ~ LEIGH S. MONTGOMERY (J55 ». "~y
cfb~ ~~
2 EXHIBIT B Case No. 201312224 ORTX
DUDLEY, DONNA * IN THE DISTRICT COURT OF vs. * * HARRIS COUNTY, TEXAS BAC TRAC PLUMBING LP * * 215th JUDICIAL DISTRICT
ORDER RESETTING TRIAL
This case is reset for TRIAL for the two week period beginning 03-09-2015.
If the case has not been reached by the second Friday after this date, the trial will be
reset. The parties are ordered to appear for a DOCKET CALL
on 03-02-2015 at 09:00 AM.
All previous pre-trial deadlines remain in effect, unless changed by the court.
If you have any questions concerning this order, please contact the Court
coordinator, TRICIA ELLIS-GRIGGS at (713) 368-6340.
Signed JUN 11 2014
FILE Chris Daniel D District Clerk
ELAINE H PALMER nme::_JJ..Up'~J~},=_~(;;-"~4 ~_ Judge, 215TH DISTRICT COURT ~~d BY.--717""'~~~2y~.;....-- Generated on: 06/11/2014
15454300 CHRIS C. PAPPAS 919 MILAM STREET SUITE 2200 HOUSTON, TX 77002 JCVF13 rev 033094
RECORDER'S MEMORANDUM This Instrument IS of poor quality at the lime of Imaging Case No. 201312224 ORTX DUDLEY, DONNA * IN THE DISTRICT COURT OF * vs. * HARRIS COUNTY, TEXAS BAC TRAC PLUMBING LP * * 215th JUDICIAL DISTRICT
This case is reset for TRIAL for the two week period beginning 03-09-2015.
If the case has not been reached by the second Friday after this date, the trial will be
All previous pre-trial deadlines remain in effect, unless changed by the court.
If you have any questions concerning this order, please contact the Court
ELAINE H PALMER Judge, 215TH DISTRICT COURT Generated on: 06/11/2014
24000743 NOMAAN HUSAIN 2700 POST OAK BLVD, SUITE 1220 HOUSTON, TX 77056 JCVF13 rev 033094 EXHIBIT C 3/2/2015 8:13:04 AM Chris Daniel - District Clerk Harris County Envelope No. 4324083 By: GAYLE FULLER Filed: 3/2/2015 8:13:04 AM
CAUSE NO. 2013-12224 DONNA DUDLEY § TN THE DISTRICT COURT OF § V. hARRIS COUNTY. TEXAS
SAC TRAC PLUMBING. LP AND § JOSE GRAJALES TH 215 § JUDICIAL DISTRICT
DEFENDANTS’ MOTION FOR CONTINUANCE
TO TIlE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendants. Bac Trac Plumbing, LP and Jose Grajales, in this case and
files this Motion for Continuance and would respectfully show unto the Court the following:
1. This lawsuit is for personal injuries sustained by the Plaintiff from an automobile
accident. It is the Defendants contention that all her claimed medical treatment and
related costs were not solely caused by this accident. Defendants’ disagree with Plaintiff
concerning the extent of’ injuries.
2. The case is currently set on the Court’s trial docket for the two-week period beginning on
March 9,2015.
3. In a recent hearing, the Court granted a Motion to Strike testimony of medical witnesses
that are critical to the case for the Defendants. Plaintiff claims that this witness testimony
is a surprise to them, and it may prejudice their case. Texas Rules of Civil Procedure
indicate that when this situation occurs, the Court’s proper remedy is to “...grant a
continuance or temporarily postpone the trial to allow ... opposing parties to conduct
discovery regarding any new information presented...” TRCP 193.6(c).
4. Defendants’ are asking this Court usc its discretion to follow this Rule of Procedure.
3409568 (64280.00088000) 5. Proceeding with trial at this time, without the benefit of the medical expert witness is
extremely prejudicial to the Defendants. Such a trial would create an extreme hardship to
the Defendants, and would likely result in a verdict that is unjust and unfair to the
Defendants because ihe jury would not receive all the evidence necessary for them to
make a proper award.
6. Plaintiff has already filed Motions in Limine based upon the Court’s action to strike the
medical expert’s testimony to ask that no argument or proof be made concerning
plaintiffs past history of medical injuries, or the causation of her complaints, or the
reasonableness of her treatment or the costs associated therewith. Such handicaps to the
Defendants’ case are extremely prejudicial, would result in a manifest unjustness, and
prevent Defendants from their guaranteed right to fair jury trial in this matter,
7. This Motion is not filed for the purposes of delay only, but is filed only so that Justice
may be done.
8. Based on the forgoing, the Defendants respectfully request the ease be continued from its
current trial setting until a time in the future that allows plaintiff to depose the
Defendant’s medical expert, if they so choose, thus preventing any surprise or prejudice
to the Plaintiff in this matter.
WHEREFORE, PREMISES CONSIDERED, Defendants Bac Trac Plumbing. Lp, arid
Jose Grajales respectfully request the Court continue the current trial setting of the case.
Respectfully submitted,
KANE RUSSELL COLEMAN & LOGAN, PC
9 3409568 (64280.00088.000) __
- .—
/ / Bv:/ 2:- -
Chris C. Pappas State Bar No. 15454300 Darrell R. Greer State Bar No. 08413500 919 Milam, Suite 2200 Houston, Texas 77002 Ph: (713) 425-7400 Fax: (713) 425-7700 Email: dgreer1krcl.corn COUNSEL FOR DEFENDANTS BAC TRAC PLUMBING, LP AND JOSE CRAJALES
VERIFICATION
STATE OF TEXAS § COUNTY OF HARRIS § BEFORE ME. the undersied Notary Public, on this day personally appeared Darrell R.
Greer, who, being by me duly sworn on his oath, deposed and said that he has read the above and
foregoing Defendants Motion for Continuance and that the statements contained therein are true
and correct. 7:
- Z.- / £ V - / - -- -.
Darrell R. Greer
/// SUBSCRIBED AND SWORN TO BEFORE ME on this the day of /0)1*/1 ,2015, to certify which witness my hand and seal of office.
A /1 -/ —H ——
ç4 MyComm.EfltO1
3 3409568 (6428000088.000) CERTIFICATE OF CONFERENCE
Afler drafting this motion the movant and respondent have conferred with each other and in good faith have attempted to resolve the matter; and
a. Respondent has agreed and is unopposed to Movant’s request under this motion.
b. X_____ This matter has been communicated with respondent’s office and -r respondent does not agree to the Motion. -. /
1/ / 7
CERTIFICATE OF SERVICE
I hereby certify that a tme and correct copy of the above and foregoing document has been c-mailed, and faxed to counsel on this the Second day of March, 2015:
Nomaan Husain Young & Husain, PLLC 2700 Post Oak Blvd., Suite 1220 Houston, Texas 77056
/ / /7 /
Cis C. Páppas/Dae1I R. Greer -
4 3409568 (64280.00088.000) EXHIBIT D 1
1 REPORTER'S RECORD
2 COURT CAUSE NO. 2013-12224
3 DONNA DUDLEY, ) IN THE DISTRICT COURT PLAINTIFF, ) 4 ) ) 5 VS. ) HARRIS COUNTY, TEXAS ) 6 BAC TRAC PLUMBING, LP, ) DEFENDANTS. ) 215TH JUDICIAL DISTRICT 7
9 *********************************
10 MOTION FOR CONTINUANCE
11 *********************************
12 On the 2nd day of March, 2015, the following
13 proceedings came on to be heard in the above-entitled and
14 numbered cause before the Honorable Elaine Palmer, Judge
15 Presiding, held in Houston, Harris County, Texas.
17 Proceedings reported by computer-aided
18 transcription/stenograph machine.
25 2
1 A P P E A R A N C E S
3 Mr. Nomaan Husain SBOT NO. 24000743 4 YOUNG & HUSAIN, PLLC 2700 Post Oak Blvd, Suite 1220 5 Houston, Texas 77056 Telephone: (713) 621-8900 6 ATTORNEY FOR THE PLAINTIFF
7 - AND -
8 Mr. Darrell Greer SBOT NO. 08413500 9 Mr. Christopher Pappas SBOT NO. 15454300 10 KANE RUSSELL COLEMAN & LOGAN PC 919 Milam Street, Suite 2200 11 Houston, Texas 77002 Telephone: (713) 425-7400 12 ATTORNEYS FOR THE DEFENDANTS
25 3
1 P R O C E E D I N G
2 THE COURT: We're on the record in Cause No.
3 2013-12224, Donna Dudley vs. Bac Trac Plumbing, LP. Will
4 the attorneys identify themselves for the record and the
5 parties they represent?
6 MR. HUSAIN: Nomaan Husain for Plaintiff
7 Donna Dudley. We're announcing ready for trial.
8 MR. GREER: My name is Darrell Geer. I'm
9 here for the Defendants. We have a motion for
10 continuance.
11 MR. PAPPAS: Chris Pappas, here for the
12 Defendants.
13 THE COURT: Okay.
14 MR. GREER: Your Honor, we would like to
15 present the motion for continuance. I have a copy for the
16 Court. You may remember, we were here last Friday in
17 regards to the motion to strike our expert witnesses in
18 this case.
19 And as a result of your ruling there, we
20 feel that we must file this motion and that we must make a
21 record; and our motion for continuance is basically a
22 result of that hearing.
23 Your Honor, we'd like to remind you
24 that -- about a few things. This case is all about
25 personal injury for the Plaintiff from an automobile 4
1 accident; and the Defendants contend that all of the
2 medical treatment and related costs were not caused solely
3 from this accident.
4 We disagree with the claims about the
5 extent of the injuries. Of course, we're set on a docket
6 that begins March the 9th.
7 Recently, the Court granted the motion
8 to strike; and we believe that if -- the Plaintiff claims
9 surprise and we believe that if they really were surprise,
10 then the proper remedy would be to continue it until at
11 the time of trial.
12 We believe that it would be extremely
13 prejudicial for the case to go forward without the benefit
14 of a medical expert witness because that's what this case
15 is all about. This would be an extreme hardship to the
16 Defendants, and it would result in an unjust and unfair
17 verdict.
18 In fact, the Plaintiff filed, yesterday,
19 this motion in limine based upon the Court's action to
20 strike our expert's testimony and so that no argument will
21 be proof, proof could be made concerning the Plaintiff's
22 past history of multiple medical injuries or causation of
23 her complaints or the reasonableness of her treatment or
24 the costs associated with that.
25 Such handicaps for the Defendants' case 5
1 is extremely prejudicial and it would be extreme and
2 unjust. So, we request the case be continued.
3 I would like to remind the Court, if you
4 do not mind, that in regards to the testimony of our
5 expert, the Defendants timely had designated Dr. Greider
6 as our expert witness in respect to our IME and for him to
7 testify; and we tendered him for deposition at the time,
8 of course, that we designated him.
9 The Plaintiffs did not request his
10 deposition at any time. Dr. Greider became unavailable;
11 and so last fall, we named Dr. Sassard, who is his cohort,
12 his colleague, in the same medical group, to perform the
13 IME and to testify also; and we tendered Dr. Sassard for
14 his deposition.
15 Again, the Plaintiffs have never
16 requested the deposition of either of these gentlemen; and
17 we believe and we filed a case with the Court that
18 supports substitution of a medical expert witness for good
19 cause.
20 And to show there was good cause, we
21 have, of course, filed affidavits from both Dr. Greider
22 and Dr. Sassard to show the reason for this substitution.
23 I think the case law calls him a second-runner expert.
24 The Court denied our motion for an IME.
25 We then produced a report from Dr. Sassard, based on his 6
1 review of the medical. The Plaintiffs, of course, moved
2 to strike it under prejudice and surprise. Under these
3 circumstances and, of course, under the Court's ruling, we
4 respectfully request that the Court continue the trial and
5 allow the Plaintiffs time to do further discovery, if they
6 choose to do so.
7 They can take the deposition of our
8 experts, if they wanted to do so, which they have not
9 asked yet; because either at this setting or any future
10 setting, we have to put on that evidence. That's only
11 fair, and it's only right. Failure would be manifestly
12 unjust to the Defendants.
13 So as a matter of fairness and equity
14 for both sides, we ask for this continuance; and we ask
15 that you allow them to discover, if they choose to do so,
16 the further opinions beyond the report of our expert and
17 we respectfully request you continue the case and allow
18 our expert to testify.
19 THE COURT: Okay, Mr. Husain.
20 MR. HUSAIN: Your Honor, I'm not going to
21 rehash the motion to strike the expert's testimony that we
22 had on Friday, but I would like to address what Mr. Greer
23 just said.
24 First of all, he's ignored the fact that
25 the Court did -- struck the experts because he failed to 7
1 comply with the agreed docket control order, which we both
2 agreed to and submitted to the Court. He talks about he
3 timely submitted Dr. Greider; but he forgets the fact that
4 in his own designation, he said that Dr. Greider's
5 opinions will be provided. I think that was on Page 3 on
6 the second paragraph. No opinions by Dr. Greider were
7 ever provided.
8 In addition, we object to this motion
9 because first, it is not sufficiently in advance of
10 trial. We're here now at the docket call for this case,
11 and he's filed this motion at 8:13 a.m. today. So we
12 would say that the Court shouldn't even consider because
13 it is not sufficiently in advance of trial.
14 His motion is based on the fact that a
15 continuance should be granted so that Plaintiffs can
16 depose his expert. On Friday, the Court struck the
17 Defense expert. So as of now, the Defense has no expert.
18 So there's nobody for us to depose.
19 What he would have to do is file a
20 motion to either re-consider the motion to strike, get his
21 expert reinstated, and then file the motion for
22 continuance. He's assuming that he has an expert. He has
23 no expert.
24 And the last basis that he's discussed
25 with the Court is, "only fair and right." It is fair and 8
1 right for Ms. Dudley to have been injured for all of these
2 years, to have this case on file for two years and here on
3 the eve of trial, Mr. Greer is trying to say that because
4 of his failure to timely designate and provide opinions
5 and for his failure to file the IME until January of 2015,
6 the Plaintiff should be delayed her day in court?
7 We think the only fair and right thing
8 to do is for the Court to enforce the DCO, as it did on
9 Friday, deny the motion for continuance, and call this
10 matter to trial, which Plaintiffs are ready to proceed to
11 trial.
12 Thank you, Your Honor.
13 MR. PAPPAS: Your Honor, could I add one
14 point?
15 THE COURT: Yes.
16 MR. PAPPAS: The main thing that we're here
17 today is to let the Court know, just so the record is
18 clear and Your Honor -- because one thing, I've been doing
19 this for over three decades. I do not believe in
20 sandbagging any court -- there is case law on point that
21 we think we've cited to Your Honor.
22 We believe that the motion and the
23 effort on the part of opposing counsel, with all due
24 respect, is leading the Court down a path that is clear
25 error. We think it's error that may require us -- and I'm 9
1 simply sharing with you 'cause I'm just a straightforward
2 guy -- that we have to take this issue up.
3 Because what we'd hate to do, for
4 everybody, is to re-try -- is to try this case more than
5 once because of the circumstances.
6 But we feel confident in saying that the
7 rules and the case law that we've provided and presented
8 to Your Honor, supports the proposition that a continuance
9 is proper.
10 He had more than ample time since
11 November to take a deposition; and, actually, he chose not
12 to do that. And we want to make it clear to the Court,
13 we're not citing this because there's no basis.
14 I will tell you, I practiced law in
15 Harris County for over three decades. I never had a
16 similar situation in which the Judge on whatever side of
17 the case that I was on, that the Court didn't grant a
18 continuance to allow the deposition to be taken and then
19 to have the case reset, within usually 60 days. Now,
20 that's the norm. I'll simply state that, based on my
21 experience.
22 THE COURT: Okay.
23 MR. GREER: And Your Honor, if I may say one
24 last thing? Mr. Husain is correct. We did not supply a
25 supplemental report from Dr. Greider because we withdrew 10
1 Dr. Greider. We supplied the supplemental report from
2 Dr. Sassard, who was the second person who we had
3 substituted in.
4 MR. HUSAIN: Dr. Sassard's report was
5 provided to us last week, Your Honor. We would ask the
6 Court to enforce the DCO, and if they want to take this up
7 on appeal, they can take it up on appeal; but we believe
8 the Court was correct in its ruling.
9 They cannot pick and chose their
10 arguments. They are trying to just argue that the
11 substitution was proper. That's the only case that was
12 provided. They glossed over the fact that they never
13 provided us an opinion.
14 THE COURT: Okay.
15 MR. GREER: And again, the rules provide
16 continuance is an appropriate remedy.
17 MR. HUSAIN: That's just rewarding them for
18 their failure to comply with the docket control order and
19 shifting the burden on to us. They did not timely give us
20 the opinions, and that's why the Court struck their
21 expert.
22 THE COURT: Counsels, you-all agreed to -- I
23 do not give you dates. You-all agreed to your scheduling
24 order back on May 21st of 2013; and the deadlines, you-all
25 set the deadlines. Discovery was to end May 16th, 2014. 11
1 You-all were set for docket call on June
2 the 9th, 2014, but we didn't reach you-all. We did
3 another resetting, but we didn't extend the discovery or
4 any of the deadlines. All the deadlines remain in
5 effect. I do not see a Rule 11. Was there a Rule 11
6 extending anything?
7 MR. HUSAIN: No, Your Honor.
8 MR. GREER: No, Your Honor. The trial date
9 was moved because of an agreed motion for continuance, at
10 least that's what is in my file. I did not think it was
11 because the Court did not reach us.
12 This was an agreed docket control. We
13 did have a docket control order, and we did have a second
14 control order from the Court pertaining to the trial date.
15 THE COURT: Now, we did send you out, on June
16 11th, 2014, a new trial date setting it for today.
17 MR. GREER: That's correct.
18 THE COURT: It says, "All previous pretrial
19 deadlines remain in effect unless changed by the Court,"
20 and the Court did not change anything. We sent you out a
21 reminder notice in January. So as of right now, I'm not
22 going to the grant your motion for continuance.
23 If we get to you, regular panel or large
24 panel?
25 MR. HUSAIN: Regular panel is fine, Your 12
1 Honor.
2 MR. GREER: For the record, Your Honor,
3 you're denying the motion for continuance?
4 THE COURT: Yes. The length of the trial
5 would be?
6 MR. HUSAIN: So on Friday, Mr. Greer made an
7 additional admission for the Court that they are not
8 disputing liability. Assuming that's correct, we're not
9 going to have to subpoena people on liability. I just
10 want to make sure that's still their position because
11 that's going to affect the length of the trial.
12 MR. GREER: Well, Your Honor, this trial, it
13 sounds like -- actually, this is a case of liability. I
14 said that before, and I'm saying that now. This is a case
15 of liability.
16 And apparently, if you're not going to
17 allow us to put on any evidence about damages and not
18 putting on anything about liability, it probably will be a
19 very short trial. I am not stipulating liability. I do
20 not have authority to do that for my client.
21 In fact, my client specifically told me
22 that I could not do that. I will tell the Court that my
23 driver has admitted he ran the red light and that's
24 certainly no surprise. He admitted that in his
25 deposition, and that's certainly no surprise to them. 13
1 So how long is the trial going to be, if
2 that's the question? You know, if I put on no evidence
3 and put on no witnesses, it would be pretty short. I
4 would suspect no more than two or three days, under those
5 circumstances.
6 In fact, it will probably take us longer
7 to pick the jury than anything else. I hope not to be in
8 those circumstances.
9 MR. HUSAIN: I'm just trying to clarify. On
10 Friday, Mr. Greer stood up here and represented to the
11 Court that this is not a case about liability, that they
12 did it. They admit it, and he's not going to fight us on
13 liability. That, to me, is a judicial admission.
14 He did it before the Court in open
15 court. Is Mr. Greer going to fight us on liability? If
16 so, we need to subpoena the police officer and prepare the
17 case for liability and damages versus just damages.
18 I would just ask the Court to get a
19 clarification from the Plaintiff's counsel.
20 MR. PAPPAS: Can I speak to that? I think
21 clarification is, in terms of liability, do we know what
22 the accident facts are? Yes. Do we intend to present how
23 the accident happened? Our client will not agree to
24 stipulate. So the answer is, you need to prepare your
25 case on liability, however you might prepare it, Counsel. 14
1 MR. HUSAIN: So Mr. Greer is withdrawing the
2 representation he made in open court on Friday?
3 MR. GREER: Your Honor, I'm not withdrawing
4 anything. I told you just a moment ago what our position
5 is. I have not made any judicial admissions. I'm telling
6 you how we're going to try our case and what the evidence
7 is; and however you want to clarify that -- I guess I'm
8 just trying to be honest.
9 THE COURT: Okay. Start subpoenaing whomever
10 you need to subpoena.
11 MR. HUSAIN: Thank you, Your Honor.
12 THE COURT: All right. And with that, unless
13 you-all have something else?
14 MR. GREER: I'm a little unclear about where
15 we were on the docket.
16 THE COURT: Well, I have one ahead of you
17 that says they are going to take five days and then I have
18 another one that is two to three days. So actually, I
19 will give you guys a call this week, Thursday, to let you
20 know where you fall in on the docket.
21 (Hearing concluded at 10:03 a.m.)
25 15
1 THE STATE OF TEXAS )
2 COUNTY OF HARRIS )
3 I, Cantrece A. Addison, Certified Shorthand
4 Reporter in and for the State of Texas, do hereby certify
5 that the above and foregoing contains a true and correct
6 transcription of all portions of evidence and other
7 proceedings requested in writing by counsel for the
8 parties to be included in this Volume of the Reporter's
9 Record, in the above-styled and numbered cause, all of
10 which occurred in open court or in chambers and were
11 reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the exhibits,
14 if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $__________ and
17 will be paid by ________________________________________.
18 WITNESS MY OFFICIAL HAND this the 3rd day of
19 March, 2015.
20 /s/ Cantrece A. Addison, CSR _____________________________________ 21 CANTRECE A. ADDISON, TEXAS CSR #8236 Expiration Date: 12/31/2016 22 201 Caroline, 13th Floor Houston, Texas 77002 23