ACCEPTED 04-15-00553-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/4/2015 11:33:49 AM KEITH HOTTLE CLERK
04-15-00553-CV NO. _______________________
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS IN THE COURT OF APPEALS 09/4/2015 11:33:49 AM FOR THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE Clerk AT SAN ANTONIO
IN RE: RUBEN GONZALEZ,
Relator.
RELATOR’S EMERGENCY MOTION FOR STAY OF MEDICAL EXAMINATION
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
RUBEN GONZALEZ, Relator, files this his Emergency Motion for Stay
of Medical Examination and would show the Court the following:
I.
THE ORDER IN ISSUE
On August 25, 2015, Respondent signed an order which compels
Relator to submit to a medical examination to be conducted by a doctor
retained by Real Parties in Interest Premier Eagle Ford Services, Inc.
(“Premier Eagle”) and Abel Alvarado Casillas (“Casillas”). The medical
examination is ordered to take place at 1:30 p.m. on September 9, 2015 in
-1- San Antonio. (See Exhibit “A”). Gonzalez lives in Laredo, which is
approximately 150 miles away. (MR 94).
Respondent is the Honorable Monica Z. Notzon, judge of the 111th
Judicial District Court of Webb County, Texas. (Ex. “A”).
II.
BACKGROUND
On or about February 14, 2013, Relator, Ruben Gonzalez (“Gonzalez”),
was driving westbound on FM 469 in Cotulla, La Salle, County, Texas.
Casillas was driving a truck owned by Premier Eagle. Casillas failed to yield
the right of way and turned in front of Gonzalez’s vehicle, causing him to veer
to his right and strike the vehicle driven by Martin Garcia, Jr., a Plaintiff in the
underlying lawsuit who is not a party to this original proceeding. As a result
of the collision, Gonzalez suffered severe mental and physical injuries. (MR
95). Gonzalez was initially brought into this suit as a Defendant, but he has
filed cross-claims against Premier Eagle, Casillas, and one other party not
present for this proceeding. (MR 3, 94).
During the discovery stage of the underlying lawsuit, one of Gonzalez’s
treating physicians, Dr. Gerardo Zavala, recommended that Gonzalez
undergo surgery which would involve the fusing and removal of four cervical
-2- discs in his neck (the “4-disc surgery”). (MR 71-72). Premier Eagle and
Casillas questioned Dr. Zavala about the 4-disc surgery in his deposition of
February 23, 2015. (Id.).
Thereafter, Gonzalez obtained a second opinion from Dr. Alejandro
Betancourt. (RR 12). Dr. Betancourt advised Gonzalez that he should have
a single disc replacement surgery. (RR 12; MR 57, 59). Gonzalez decided
to have the single disc surgery, and counsel for Gonzalez informed counsel
for Premier Eagle and Casillas by email dated May 22, 2015, that Gonzalez
“is going to move forward with surgery.” (MR 79). Counsel for Gonzalez
again informed counsel for Premier Eagle and Casillas by email dated May
26, 2015 that “... our client, Mr. Gonzalez, is going to go forward with surgery,
...”. (MR 80).
Nevertheless, on July 22, 2015, after Gonzalez had the single disc
surgery, five months after Premier Eagle and Casillas had deposed Dr. Zavala
about the 4-disc surgery, and two months after knowing that the single disc
surgery was going to occur, Premier Eagle and Casillas filed their Renewed
Motion to Conduct Medical Examination1 (“Renewed Motion”), this time
asserting that they should be allowed to subject Gonzalez to a medical
1 The original Motion to Conduct Medical Examination was denied. (MR 93).
-3- examination by their chosen expert witness, a Dr. Gilbert Meadows. (MR 66).
Premier Eagle and Casillas knew that Gonzalez had already had the single
disc surgery. (RR 9).
Despite knowing that the single disc surgery had taken place, the
Renewed Motion filed by Premier Eagle and Casillas said nothing about the
single disc surgery. (MR 66-69). Instead, the Renewed Motion sought to
examine Gonzalez for the purported purposed of allowing Dr. Meadows to
determine whether Gonzalez should undergo the four disc surgery. (MR 66-
69). This is the very same surgery which Gonzalez had already decided not
to have and which he did not have.
A hearing on the Renewed Motion took place on August 25, 2015.
(RR 1).
At the hearing, Gonzalez made Respondent aware of the fact that
Gonzalez had already undergone single disc replacement surgery and that he
had elected the single disc surgery rather than the 4-disc surgery, thereby
making the Renewed Motion moot, and the requested medical examination
unnecessary. (RR 12).
Gonzalez also pointed out that Premier Eagle and Casillas had failed
to show good cause for the medical examination, primarily because less
-4- intrusive means of discovery were still available to Premier Eagle and
Casillas, and those less intrusive means of discovery had not been pursued.
(RR 11, 13-15).
III.
RELATORS CAN ESTABLISH THEIR RIGHT TO RELIEF
The Petition for Writ of Mandamus being filed contemporaneously with
this Emergency Motion for Stay of Medical Examination demonstrates that
Respondent in this original proceeding abused her discretion in at least two
ways.
First, the Court should grant mandamus relief because the Renewed
Motion to Conduct Medical Examination is moot, and the medical examination
is unnecessary.
In their Renewed Motion, Premier Eagle and Casillas draw attention to
the “four level cervical disc fusion surgery” and seek a medical examination
for the purpose of determining whether the 4-disc surgery is necessary. (MR
66, 67-68). The Renewed Motion attaches the affidavit of Dr. Gilbert
Meadows. (MR 81). Concerning the 4-disc surgery, Dr. Meadows opines that
“[i]t is highly unlikely that Mr. Gonzalez will have a positive outcome from the
proposed surgery.” (MR 82). Dr. Meadows concludes his affidavit by stating
-5- that “I would strongly recommend that Mr. Gonzalez undergo an independent
medical examination before he undergoes a four level cervical fusion.” (MR
83).
Thus, the purported purpose of the medical examination is to determine
whether or not the 4-disc surgery recommended by Dr. Zavala is necessary.
There is no mention of evaluating any other treatment options.
What the Renewed Motion did not disclose or address is the fact that
Gonzalez did not have the 4-disc surgery. Instead, he had a single disc
replacement surgery on July 14, 2015. (MR 57, 59, 62; RR 12). Gonzalez
had that surgery before Premier Eagle and Casillas filed their Renewed
Motion. (MR 66, 70). Thus, the purpose of Dr. Meadows’s medical exam no
longer exists. The entire issue is now moot.
Second, the Court should grant mandamus relief because there is no
good cause for the medical examination. More specifically, there is no
argument or proof from Premier Eagle and Casillas that they have exhausted
less intrusive means of discovery.
The law is clear regarding the standard which a trial court must apply
in determining whether to permit one party to force another party to undergo
a medical examination. That standard has been prescribed in Rule 204 of the
-6- Texas Rules of Civil Procedure and fleshed out by the courts.
Essentially, Rule 204 allows a trial court to compel a party to submit to
a physical examination only for good cause and only when the person’s
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ACCEPTED 04-15-00553-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/4/2015 11:33:49 AM KEITH HOTTLE CLERK
04-15-00553-CV NO. _______________________
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS IN THE COURT OF APPEALS 09/4/2015 11:33:49 AM FOR THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE Clerk AT SAN ANTONIO
IN RE: RUBEN GONZALEZ,
Relator.
RELATOR’S EMERGENCY MOTION FOR STAY OF MEDICAL EXAMINATION
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
RUBEN GONZALEZ, Relator, files this his Emergency Motion for Stay
of Medical Examination and would show the Court the following:
I.
THE ORDER IN ISSUE
On August 25, 2015, Respondent signed an order which compels
Relator to submit to a medical examination to be conducted by a doctor
retained by Real Parties in Interest Premier Eagle Ford Services, Inc.
(“Premier Eagle”) and Abel Alvarado Casillas (“Casillas”). The medical
examination is ordered to take place at 1:30 p.m. on September 9, 2015 in
-1- San Antonio. (See Exhibit “A”). Gonzalez lives in Laredo, which is
approximately 150 miles away. (MR 94).
Respondent is the Honorable Monica Z. Notzon, judge of the 111th
Judicial District Court of Webb County, Texas. (Ex. “A”).
II.
BACKGROUND
On or about February 14, 2013, Relator, Ruben Gonzalez (“Gonzalez”),
was driving westbound on FM 469 in Cotulla, La Salle, County, Texas.
Casillas was driving a truck owned by Premier Eagle. Casillas failed to yield
the right of way and turned in front of Gonzalez’s vehicle, causing him to veer
to his right and strike the vehicle driven by Martin Garcia, Jr., a Plaintiff in the
underlying lawsuit who is not a party to this original proceeding. As a result
of the collision, Gonzalez suffered severe mental and physical injuries. (MR
95). Gonzalez was initially brought into this suit as a Defendant, but he has
filed cross-claims against Premier Eagle, Casillas, and one other party not
present for this proceeding. (MR 3, 94).
During the discovery stage of the underlying lawsuit, one of Gonzalez’s
treating physicians, Dr. Gerardo Zavala, recommended that Gonzalez
undergo surgery which would involve the fusing and removal of four cervical
-2- discs in his neck (the “4-disc surgery”). (MR 71-72). Premier Eagle and
Casillas questioned Dr. Zavala about the 4-disc surgery in his deposition of
February 23, 2015. (Id.).
Thereafter, Gonzalez obtained a second opinion from Dr. Alejandro
Betancourt. (RR 12). Dr. Betancourt advised Gonzalez that he should have
a single disc replacement surgery. (RR 12; MR 57, 59). Gonzalez decided
to have the single disc surgery, and counsel for Gonzalez informed counsel
for Premier Eagle and Casillas by email dated May 22, 2015, that Gonzalez
“is going to move forward with surgery.” (MR 79). Counsel for Gonzalez
again informed counsel for Premier Eagle and Casillas by email dated May
26, 2015 that “... our client, Mr. Gonzalez, is going to go forward with surgery,
...”. (MR 80).
Nevertheless, on July 22, 2015, after Gonzalez had the single disc
surgery, five months after Premier Eagle and Casillas had deposed Dr. Zavala
about the 4-disc surgery, and two months after knowing that the single disc
surgery was going to occur, Premier Eagle and Casillas filed their Renewed
Motion to Conduct Medical Examination1 (“Renewed Motion”), this time
asserting that they should be allowed to subject Gonzalez to a medical
1 The original Motion to Conduct Medical Examination was denied. (MR 93).
-3- examination by their chosen expert witness, a Dr. Gilbert Meadows. (MR 66).
Premier Eagle and Casillas knew that Gonzalez had already had the single
disc surgery. (RR 9).
Despite knowing that the single disc surgery had taken place, the
Renewed Motion filed by Premier Eagle and Casillas said nothing about the
single disc surgery. (MR 66-69). Instead, the Renewed Motion sought to
examine Gonzalez for the purported purposed of allowing Dr. Meadows to
determine whether Gonzalez should undergo the four disc surgery. (MR 66-
69). This is the very same surgery which Gonzalez had already decided not
to have and which he did not have.
A hearing on the Renewed Motion took place on August 25, 2015.
(RR 1).
At the hearing, Gonzalez made Respondent aware of the fact that
Gonzalez had already undergone single disc replacement surgery and that he
had elected the single disc surgery rather than the 4-disc surgery, thereby
making the Renewed Motion moot, and the requested medical examination
unnecessary. (RR 12).
Gonzalez also pointed out that Premier Eagle and Casillas had failed
to show good cause for the medical examination, primarily because less
-4- intrusive means of discovery were still available to Premier Eagle and
Casillas, and those less intrusive means of discovery had not been pursued.
(RR 11, 13-15).
III.
RELATORS CAN ESTABLISH THEIR RIGHT TO RELIEF
The Petition for Writ of Mandamus being filed contemporaneously with
this Emergency Motion for Stay of Medical Examination demonstrates that
Respondent in this original proceeding abused her discretion in at least two
ways.
First, the Court should grant mandamus relief because the Renewed
Motion to Conduct Medical Examination is moot, and the medical examination
is unnecessary.
In their Renewed Motion, Premier Eagle and Casillas draw attention to
the “four level cervical disc fusion surgery” and seek a medical examination
for the purpose of determining whether the 4-disc surgery is necessary. (MR
66, 67-68). The Renewed Motion attaches the affidavit of Dr. Gilbert
Meadows. (MR 81). Concerning the 4-disc surgery, Dr. Meadows opines that
“[i]t is highly unlikely that Mr. Gonzalez will have a positive outcome from the
proposed surgery.” (MR 82). Dr. Meadows concludes his affidavit by stating
-5- that “I would strongly recommend that Mr. Gonzalez undergo an independent
medical examination before he undergoes a four level cervical fusion.” (MR
83).
Thus, the purported purpose of the medical examination is to determine
whether or not the 4-disc surgery recommended by Dr. Zavala is necessary.
There is no mention of evaluating any other treatment options.
What the Renewed Motion did not disclose or address is the fact that
Gonzalez did not have the 4-disc surgery. Instead, he had a single disc
replacement surgery on July 14, 2015. (MR 57, 59, 62; RR 12). Gonzalez
had that surgery before Premier Eagle and Casillas filed their Renewed
Motion. (MR 66, 70). Thus, the purpose of Dr. Meadows’s medical exam no
longer exists. The entire issue is now moot.
Second, the Court should grant mandamus relief because there is no
good cause for the medical examination. More specifically, there is no
argument or proof from Premier Eagle and Casillas that they have exhausted
less intrusive means of discovery.
The law is clear regarding the standard which a trial court must apply
in determining whether to permit one party to force another party to undergo
a medical examination. That standard has been prescribed in Rule 204 of the
-6- Texas Rules of Civil Procedure and fleshed out by the courts.
Essentially, Rule 204 allows a trial court to compel a party to submit to
a physical examination only for good cause and only when the person’s
mental or medical condition is in controversy. Tex. R. Civ. P. 204.1(c);
Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988); In re Transwestern
Publishing Company, 96 S.W.3d 501, 506 (Tex.App. – Fort Worth 2002, orig.
proceeding); In re Caballero, 36 S.W.3d 143, 144-45 (Tex.App. – Corpus
Christi 2000, orig. proceeding).
The term “good cause” is further broken down as having three elements,
all of which must be met to establish good cause. They are:
1) The examination is relevant to issues in the case and the examination will produce, or is likely to lead to, relevant evidence; 2) There is a reasonable nexus between the condition of the person to be examined and the examination sought; and 3) It is not possible to obtain the desired information through less intrusive means than a compelled examination.
Tex. R. Civ. P. 204.1(c); Coates at 753; Transwestern at 505; Caballero at
145.
To meet the third element, the party moving for the medical examination
has the burden of proving that it has exhausted less intrusive means of
discovery before it can be allowed to conduct the examination. Coates at
-7- 753; Caballero at 145.
In Caballero, the court of appeals granted mandamus because the trial
court ordered a medical examination even though “the movants made no
attempt to show that it is not possible to obtain the desired information
through less intrusive means.” Caballero at 145. The movants in Caballero
had “not deposed the plaintiff’s doctors.” Id. Premier Eagle and Casillas have
made the same mistake.
Even assuming that there is still a reason to determine the propriety of
a 4-disc surgery, there are several avenues of discovery which Premier Eagle
and Casillas could have opted to undertake in order to obtain the information
they sought. None of these were addressed by Premier Eagle and Casillas.
Those methods are: 1) deposing the doctor who performed the single disc
surgery; 2) deposing Gonzalez’s other treating physicians; and 3) conducting
post-surgery written discovery.
A review of the Renewed Motion and the supporting exhibits
demonstrates that Premier Eagle and Casillas not only failed to prove that
they have exhausted less intrusive means of discovery, but they do not even
address the issue. (MR 66-83). Though Dr. Meadows states in his affidavit
that he does not believe the 4-disc surgery is necessary, and he discloses
-8- what he has already reviewed pertaining to Gonzalez, he offers no reason
why what he has seen is inadequate to reach an opinion which he already
holds. (MR 81-83).
The issue of whether a less intrusive means of discovery was available
arose at the hearing on the Renewed Motion, and Premier Eagle and Casillas
offered no explanation or evidence there either. (RR 13-14, 15). Indeed,
Respondent granted the Renewed Motion without demanding that Premier
Eagle and Casillas respond to Gonzalez’s argument that less intrusive means
of discovery had not been exhausted. (RR 15). Thus, there is no argument
and no evidence anywhere in the record that Premier Eagle and Casillas have
exhausted less intrusive means of discovery.
IV.
THE NEED FOR A STAY AND THE BASIS FOR THE EMERGENCY
The need for a stay of the medical examination is clear. Gonzalez is
being ordered to submit to a medical examination without his consent. He
has a compelling right to privacy which Respondent’s Order invades. See
Coates at 751.
The need for relief is urgent, since the medical examination has been
ordered to take place on September 9, 2015, and that date will be reached
-9- before this Court can rule on the merits of this Petition for Writ of Mandamus.
Moreover, the medical exam is to take place in San Antonio, requiring
Gonzalez to travel the 150 miles from Laredo.
Thus, Relator requests that this Court issue a stay of the medical
examination well in advance of September 9, 2015.
Gonzalez does not seek to stay any other proceedings below or to stay
the trial of this cause. Thus, the subject of the requested stay is limited to the
medical examination, and the stay will not impede other proceedings.
PRAYER
WHEREFORE, PREMISES CONSIDERED, RUBEN GONZALEZ,
Relator, prays that the Court grant this Emergency Motion to Stay Medical
Examination and stay the trial court’s August 25, 2015 Order Granting Cross-
Defendants’ Renewed Motion to Conduct Medical Examination until the Court
has ruled on the merits of Gonzalez’s Petition for Writ of Mandamus. Relator
also prays for such other and further relief to which he may be justly entitled.
Respectfully Submitted,
Jaime A. Gonzalez, Jr. State Bar No. 08127600 Hector L. Rodriguez State Bar No. 00791555 GONZALEZ & ASSOCIATES LAW FIRM, LTD.
-10- Summit Park North 817 E. Esperanza Ave. McAllen, Texas 78501 (956) 664-0100 (telephone) (956) 664-1529 (facsimile)
/s/ David H. Jones DAVID H. JONES State Bar No. 10869590 LAW OFFICE OF DAVID H. JONES 6521 North 10th St., Suite E-1 McAllen, Texas 78504 Telephone: (956) 627-6350 Email: David@DHJlawfirm.com
ATTORNEYS FOR RELATOR RUBEN GONZALEZ
CERTIFICATE OF RULE 52.10 COMPLIANCE
The undersigned certifies that Relator has complied with Rule 52.10(a) of the Texas Rules of Appellate Procedure by notifying all parties by expedited means (by telephone or by fax) that this motion for temporary relief has been or will be filed. Counsel for Real Parties in Interest, Steve Navarro, informed me that he is opposed to the relief requested herein.
/s/ David H. Jones David H. Jones
-11- CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was delivered in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure to the following on this the 4th day of September, 2015:
Hon. Monica Z. Notzon Judge, 111th Judicial District 1110 Victoria Street Laredo, Texas 78040 Respondent
Stephen D. Navarro Naman Howell Smoth & Lee, PLLC 10001 Reunion Place, Suite 600 San Antonio, Texas 78216 Attorney for Real Parties in Interest
-12-