in Re Valero Refining-Texas, L.P.
Opinion
ACCEPTED 01-15-00566-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:23:49 PM CHRISTOPHER PRINE CLERK
No. 01-15-00566-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In the 9/11/2015 2:23:49 PM CHRISTOPHER A. PRINE Court of Appeals for the Clerk
First District of Texas
IN RE VALERO REFINING—TEXAS, L.P.,
Relator.
Original Proceeding from the 212th District Court Galveston County, Texas Cause No. 12CV1541
RELATOR’S UNOPPOSED MOTION TO ABATE
Valero Refining—Texas, L.P., files this motion to abate its mandamus.
Along with this motion to abate, Valero has filed a motion in the trial court
requesting that the trial court provide its reasons for refusing to enter judgment on
the jury verdict. Valero anticipates the motion will be heard during the week of
October 5, 2015, and a ruling should follow soon thereafter. To allow the trial
court the opportunity to decide that motion, Valero respectfully asks for a short
abatement until October 31, 2015. In support of its motion to abate this mandamus,
Valero presents the following procedural history and argument:
47886_1 PROCEDURAL HISTORY 1. The trial court (listed as the respondent in this mandamus proceeding)
is Judge Patricia Grady. Mand. Pet. at ii. Judge Grady is the current presiding
judge in the underlying case who took over the 212th district court in Galveston
County when Judge Griffin, her predecessor, left office after granting a new trial
on December 30, 2014.
2. Judge Grady signed an order denying Valero’s motion to reconsider
the order granting a new trial, on April 16, 2015. Her order states no reason for her
denial of Valero’s motion to reconsider the order granting the motion for new trial.
R. 1:188. It states simply that “This Court, after considering the Motion is of the
opinion that Defendant’s Motion should, in all things, be DENIED.” Id.
3. Valero filed its mandamus petition on June 29, 2015, after securing
the entire record of the underlying trial and all hearings, and after hiring appellate
counsel to represent Valero in this Court on June 9, 2015.
4. The mandamus petition lists two orders, which taken together,
constituted the “trial court’s action necessitating mandamus relief.” Mand. Pet.,
Statement of the Case, at x. Valero continues to complain of both orders, and the
relief requested in the Prayer asks for “ a conditional writ of mandamus . . .
compelling the trial court [Judge Grady] to vacate the new trial order and
reinstating judgment on the jury’s verdict.” Id. at 36.
47886_1 2 5. This Court ordered a response to the mandamus petition on July 9,
2015, and the Foxes filed their response to the petition, after one extension of time,
on August 27, 2015.
6. On September 11, 2015, Valero filed a motion in the trial court
seeking to determine Judge Grady’s reasons for denying the earlier-filed motion
for reconsideration. See Tab A, Valero’s Motion Requesting the Trial Court To
Provide Its Reasons For Refusing To Enter Judgment On The Jury Verdict. It is
anticipated the motion will be heard during the week of October 5, 2015.
7. Valero intends to reply fully to all arguments raised in the Foxes’
response, but Valero respectfully requests time to do so subject to this Court’s
ruling on the present motion to abate. If the motion is granted, Valero seeks leave
to file its reply once Judge Grady rules on the motion pending in her court.
ARGUMENT Valero has asked before for Judge Grady’s “analysis”—her own,
independent reasons—justifying the denial of Valero’s right to judgment on the
jury verdict, and for an explanation why the verdict was set aside and a new trial
ordered. Valero is “entitled to know those reasons just as much as it would be
entitled to know the reasons for the orders entered by the former trial judge.” In re
Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). This
motion to abate will create the time for such a ruling.
47886_1 3 A. Valero has asked for the trial court to provide its reasons for refusing to render judgment in accord with the jury’s verdict. In its briefing in the trial court on the motion seeking reconsideration of the
new trial, Valero sought the trial court’s independent analysis of why the jury
verdict was overturned:
Not only does this Court have the power to reconsider whether the jury verdict should have been disregarded in favor of a new trial, it has a responsibility to engage in such review. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008). Moreover, because Judge Griffin is no longer on the bench, his successor is required to reconsider his decision before an appellate court can issue a writ of mandamus. Id. at 228 (“Mandamus will not issue against a new judge for what a former one did.”); State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) (“A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks.”); TEX. R. APP. P. 7.2(b) (“the successor [must] reconsider the original party's decision.”). This Court is, therefore, expected to apply its own, independent analysis to the issue of whether a new trial should have been ordered and is neither bound by Judge Griffin’s decision nor limited to determining whether that decision was an abuse of discretion. Valero’s Reply to Plaintiffs’ Response To Defendant’s Motion For
Reconsideration at 2; R. 1:160 (emphasis added). Valero deserves an independent
analysis of the new trial order by Judge Grady herself. Such an independent
analysis would have provided some basis for her refusing to render judgment on
the jury verdict.
47886_1 4 B. In response to Valero’s request for an “independent analysis” of the new trial order, the Foxes urged Judge Grady to defer entirely to Judge Griffin’s analysis and to leave his order undisturbed. The Foxes, who are the real parties in interest, and who obtained the new
trial order from Judge Griffin, took the position in the trial court that everyone
should defer to him, and leave his order intact, because “The currently presiding
judge of this Court was not the one who oversaw the trial of this case or considered
Fox’s Motion for New Trial.” Resp. to Motion for Reconsideration at 15; R.
1:157. They argued to Judge Grady that her ruling had to be limited to some type
of appellate review of the new-trial order: “the present Court sits in the same
position as an appellate tribunal, not having been present at the trial of this matter.”
Resp. to Motion for Reconsideration at 2; R. 1:144. Going further, and focusing
entirely on Judge Griffin’s order in the trial court, the Foxes urged Judge Grady as
the successor judge to “refuse Valero’s invitation to re-visit the settled Order of a
judge who was there.” Resp. to Motion for Reconsideration at 15; R.1:157. The
Foxes argued that “the Court should be reluctant to disturb that decision.” Id. at 8;
R.1:150. Further, at oral argument on the motion, Mr. Todd urged:
Now, we would submit that we can’t second-guess Judge Griffin or we’re going to get second-guessing all over the place all the time we have a circumstance like this occur.
R. 1:1929. He asked for extraordinary and unwarranted deference to Judge
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ACCEPTED 01-15-00566-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:23:49 PM CHRISTOPHER PRINE CLERK
No. 01-15-00566-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In the 9/11/2015 2:23:49 PM CHRISTOPHER A. PRINE Court of Appeals for the Clerk
First District of Texas
IN RE VALERO REFINING—TEXAS, L.P.,
Relator.
Original Proceeding from the 212th District Court Galveston County, Texas Cause No. 12CV1541
RELATOR’S UNOPPOSED MOTION TO ABATE
Valero Refining—Texas, L.P., files this motion to abate its mandamus.
Along with this motion to abate, Valero has filed a motion in the trial court
requesting that the trial court provide its reasons for refusing to enter judgment on
the jury verdict. Valero anticipates the motion will be heard during the week of
October 5, 2015, and a ruling should follow soon thereafter. To allow the trial
court the opportunity to decide that motion, Valero respectfully asks for a short
abatement until October 31, 2015. In support of its motion to abate this mandamus,
Valero presents the following procedural history and argument:
47886_1 PROCEDURAL HISTORY 1. The trial court (listed as the respondent in this mandamus proceeding)
is Judge Patricia Grady. Mand. Pet. at ii. Judge Grady is the current presiding
judge in the underlying case who took over the 212th district court in Galveston
County when Judge Griffin, her predecessor, left office after granting a new trial
on December 30, 2014.
2. Judge Grady signed an order denying Valero’s motion to reconsider
the order granting a new trial, on April 16, 2015. Her order states no reason for her
denial of Valero’s motion to reconsider the order granting the motion for new trial.
R. 1:188. It states simply that “This Court, after considering the Motion is of the
opinion that Defendant’s Motion should, in all things, be DENIED.” Id.
3. Valero filed its mandamus petition on June 29, 2015, after securing
the entire record of the underlying trial and all hearings, and after hiring appellate
counsel to represent Valero in this Court on June 9, 2015.
4. The mandamus petition lists two orders, which taken together,
constituted the “trial court’s action necessitating mandamus relief.” Mand. Pet.,
Statement of the Case, at x. Valero continues to complain of both orders, and the
relief requested in the Prayer asks for “ a conditional writ of mandamus . . .
compelling the trial court [Judge Grady] to vacate the new trial order and
reinstating judgment on the jury’s verdict.” Id. at 36.
47886_1 2 5. This Court ordered a response to the mandamus petition on July 9,
2015, and the Foxes filed their response to the petition, after one extension of time,
on August 27, 2015.
6. On September 11, 2015, Valero filed a motion in the trial court
seeking to determine Judge Grady’s reasons for denying the earlier-filed motion
for reconsideration. See Tab A, Valero’s Motion Requesting the Trial Court To
Provide Its Reasons For Refusing To Enter Judgment On The Jury Verdict. It is
anticipated the motion will be heard during the week of October 5, 2015.
7. Valero intends to reply fully to all arguments raised in the Foxes’
response, but Valero respectfully requests time to do so subject to this Court’s
ruling on the present motion to abate. If the motion is granted, Valero seeks leave
to file its reply once Judge Grady rules on the motion pending in her court.
ARGUMENT Valero has asked before for Judge Grady’s “analysis”—her own,
independent reasons—justifying the denial of Valero’s right to judgment on the
jury verdict, and for an explanation why the verdict was set aside and a new trial
ordered. Valero is “entitled to know those reasons just as much as it would be
entitled to know the reasons for the orders entered by the former trial judge.” In re
Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). This
motion to abate will create the time for such a ruling.
47886_1 3 A. Valero has asked for the trial court to provide its reasons for refusing to render judgment in accord with the jury’s verdict. In its briefing in the trial court on the motion seeking reconsideration of the
new trial, Valero sought the trial court’s independent analysis of why the jury
verdict was overturned:
Not only does this Court have the power to reconsider whether the jury verdict should have been disregarded in favor of a new trial, it has a responsibility to engage in such review. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008). Moreover, because Judge Griffin is no longer on the bench, his successor is required to reconsider his decision before an appellate court can issue a writ of mandamus. Id. at 228 (“Mandamus will not issue against a new judge for what a former one did.”); State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) (“A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks.”); TEX. R. APP. P. 7.2(b) (“the successor [must] reconsider the original party's decision.”). This Court is, therefore, expected to apply its own, independent analysis to the issue of whether a new trial should have been ordered and is neither bound by Judge Griffin’s decision nor limited to determining whether that decision was an abuse of discretion. Valero’s Reply to Plaintiffs’ Response To Defendant’s Motion For
Reconsideration at 2; R. 1:160 (emphasis added). Valero deserves an independent
analysis of the new trial order by Judge Grady herself. Such an independent
analysis would have provided some basis for her refusing to render judgment on
the jury verdict.
47886_1 4 B. In response to Valero’s request for an “independent analysis” of the new trial order, the Foxes urged Judge Grady to defer entirely to Judge Griffin’s analysis and to leave his order undisturbed. The Foxes, who are the real parties in interest, and who obtained the new
trial order from Judge Griffin, took the position in the trial court that everyone
should defer to him, and leave his order intact, because “The currently presiding
judge of this Court was not the one who oversaw the trial of this case or considered
Fox’s Motion for New Trial.” Resp. to Motion for Reconsideration at 15; R.
1:157. They argued to Judge Grady that her ruling had to be limited to some type
of appellate review of the new-trial order: “the present Court sits in the same
position as an appellate tribunal, not having been present at the trial of this matter.”
Resp. to Motion for Reconsideration at 2; R. 1:144. Going further, and focusing
entirely on Judge Griffin’s order in the trial court, the Foxes urged Judge Grady as
the successor judge to “refuse Valero’s invitation to re-visit the settled Order of a
judge who was there.” Resp. to Motion for Reconsideration at 15; R.1:157. The
Foxes argued that “the Court should be reluctant to disturb that decision.” Id. at 8;
R.1:150. Further, at oral argument on the motion, Mr. Todd urged:
Now, we would submit that we can’t second-guess Judge Griffin or we’re going to get second-guessing all over the place all the time we have a circumstance like this occur.
R. 1:1929. He asked for extraordinary and unwarranted deference to Judge
Griffin: “I submit that we defer to Judge Griffin.” Id. at ROA 1942-43.
47886_1 5 C. Having directed attention only to Judge Griffin’s order in the trial court, now the Foxes argue in this Court that on mandamus, “Judge Griffin’s order for new trial is no longer at issue.” In the trial court, the Foxes wanted the focus to be on Judge Griffin’s order.
But they now have asserted in this Court that such an approach is wrong. They run
away from Judge Griffin’s order here, arguing now that “Judge Griffin’s order for
new trial is no longer at issue,” see Mand. Resp. at 12, even though they sprinted
toward it—and only that order—in the trial court. They say it is not Judge
Griffin’s order that counts, and that the propriety of mandamus relief depends
entirely upon Judge Grady’s order denying reconsideration. Id.
The Foxes should not be permitted to run away from their earlier arguments
in the trial court, having secured in that court an order upholding the ruling by
Judge Griffin out of “deference.” In truth, both orders matter, and both of them are
at issue. The Foxes’ response brief admits that Judge Grady’s denial of
reconsideration “is no less a refusal to enter judgment on the jury verdict than was
Judge Griffin’s,” but they are incorrect in asserting that Judge Grady’s order “is the
only Order that counts now.” Resp. to Mandamus Pet. at 13. The Foxes’ bait-
and-switch tactics have precipitated Valero’s motion to abate this mandamus, so
that if one request to Judge Grady to state her reasons before was not enough, she
will have another opportunity to give them now.
47886_1 6 D. Supreme Court precedent requires Judge Grady to provide reasons for upholding the new trial. The Texas Supreme Court holds that when a successor trial judge
“reaffirm[s] the original new trial order without giving reasons for doing so,
mandamus relief [will issue] directing the trial court to provide its reasons for
refusing to enter judgment on the jury verdict.” In re Baylor Medical Center at
Garland, 289 S.W.3d 859, 860 (Tex. 2009). This is not the first time that an
appellate court has been asked, via a mandamus petition, for a writ that “direct[s]
the trial court to specify the reasons that it refused to enter judgment on the jury
verdict and affirmed the granting of a new trial.” Id. at 861. Even when a
successor judge signs “an order stating only that [her] predecessor’s ruling ‘should
remain unchanged,’” mandamus will issue to force a successor judge to rule with
reasons. In re Cook, 356 S.W.3d 493, 494 (Tex. 2011).
Valero is “entitled to know those reasons just as much as it would be entitled
to know the reasons for the orders entered by the former trial judge.” In re
Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). “[A] trial
court’s failure to clearly state the reasons for setting aside a jury verdict and for
granting a new trial constitutes an abuse of discretion for which there is no
adequate remedy by appeal.” In re Cook, 356 S.W.3d at 495. “Reaffirming the
former trial court’s order [is] tantamount to granting the motion for new trial.
Consequently, the successor trial court must provide its own statement of the
47886_1 7 reasons for setting aside a jury verdict.” Id. Based on the position the Foxes have
taken in this Court, it appears all parties now agree that Judge Grady was required
to provide her own reasons for refusing to enter judgment on the jury verdict.
Given the opportunity, it is anticipated that Judge Grady would do so now.
E. Abatement is a proper means to allow Judge Grady a chance to provide her reasons for upholding the new trial order. Abatement is the “common remedy [applied] to give the successor judge an
opportunity to rule on the underlying issue.” In re Gonzales, 391 S.W.3d 251, 252
(Tex. App.—Austin 2012, orig. proceeding). In some circumstances, an abatement
of a mandamus proceeding is mandatory “to allow the successor to reconsider the
original party's decision.” TEX. R. APP. P. 7.2(b). Valero complied with that
mandatory obligation when it asked Judge Grady to reconsider the new trial order
signed by Judge Griffin. However, apparently out of “deference” to Judge Griffin,
there are no reasons provided in her order denying the reconsideration motion. As
we argue above, those reasons are necessary, and this Court should require them.
Even in cases when abatement is not “mandatory under the rules of appellate
procedure, [it] nonetheless [can] be appropriate.” See In re Gonzales, 391 S.W.3d
at 252. Abatement will permit Judge Grady an opportunity to rule on the pending
motion asking her for reasons that support her order upholding the new trial.
Moreover, the appellate rules permit this Court to render orders that are appropriate
in the circumstances. See TEX. R. APP. P. 52.10(b) (allowing an appellate court to
47886_1 8 “grant any just relief pending the court’s action on the petition”); In re Gonzales,
391 S.W.3d at 252-53.
An order of abatement for a definitive time period is “just relief” that would
allow this Court to review Judge Grady’s reasoning. In the Gonzales case, the time
of abatement ordered by the Austin Court of Appeals was 14 days, and something
like that interval would be appropriate here. Valero filed its motion in the trial
court on Friday, September 11, 2015. It is anticipated the motion will be heard
during the week of October 5, 2015. If she does not rule earlier, Judge Grady
should be allowed at least the remainder of the month in which to provide her
reasoning for refusing to render judgment on the jury verdict. Failing a ruling by
October 31, 2015, this Court should order her to rule in accordance with Texas
Supreme Court precedent. In re Baylor Med. Ct.r at Garland, 289 S.W.3d 859,
860 (Tex. 2009) (holding that if a successor judge merely “reaffirm[s] the original
new trial order without giving reasons . . ., mandamus relief [should issue]
directing the trial court to provide its reasons for refusing to enter judgment on the
jury verdict.”).
Once Judge Grady rules, the current mandamus will be pending still, and
this Court can decide the core issue of whether the new trial should have been
granted. Judge Grady’s ruling may set aside the new trial order, but if she gives a
reason or reasons for upholding it, then this Court will be able to weigh in on the
47886_1 9 propriety of a new trial in light of her ruling. Reviewing her ruling in the current
proceeding will save the parties and the judicial system the expense of time and
resources that would be required to file and decide another mandamus proceeding
to challenge Judge Grady’s ruling. And most importantly, this Court will be able
to determine the merits of the case and whether the jury verdict should be upheld.
Valero asks leave to file its formal reply brief, answering all the arguments in the
Foxes’ response, once Judge Grady rules on the pending motion before her. If
additional briefing would be helpful from the Foxes, they should also be provided
the opportunity to present their arguments following a proper ruling by Judge
Grady.
PRAYER Valero Refining—Texas, L.P., asks for an abatement of this mandamus
proceeding until October 31, 2015, while the trial judge considers the motion
asking her to provide her reasons for refusing to enter judgment on the jury verdict.
In the event the motion is not granted, Valero asks for 14 days following the trial
court’s ruling in which to reply to the Foxes’ response to the mandamus petition.
Valero also asks for any other relief to which it is entitled.
47886_1 10 Respectfully Submitted:
David W. Burns HOGAN & HOGAN State Bar No. 00785735 db@tekellbook.com By: /s/ Richard P. Hogan, Jr. TEKELL, BOOK, ALLEN & MORRIS, LLP Richard P. Hogan, Jr. 1221 McKinney, Suite 4300 State Bar No. 09802010 Houston, Texas 77010 rhogan@hoganfirm.com 713.222.9542–telephone Jennifer Bruch Hogan 713.655.7727–facsimile State Bar No. 03239100 jhogan@hoganfirm.com James F. Bennett James C. Marrow State Bar No. 46826 State Bar No. 24013103 jbennett@dowdbennett.com jmarrow@hoganfirm.com Megan Heinsz Pennzoil Place State Bar No. 56377 711 Louisiana, Suite 500 mheinsz@dowdbennett.com Houston, Texas 77002 DOWD BENNETT, LLP 713.222.8800–telephone 7733 Forsyth Boulevard 713.222.8810–facsimile St. Louis, Missouri 63105 314.889.7300–telephone Alex M. Miller 314.863.2111–facsimile State Bar No. 00791263 alex.miller@valero.com THE VALERO COMPANIES One Valero Way San Antonio, Texas 78249 210.345.2857–telephone 210.345.4567–facsimile
ATTORNEYS FOR RELATOR VALERO REFINING—TEXAS, L.P.
47886_1 11 CERTIFICATE OF CONFERENCE Counsel for Relator has conferred with counsel for Real-Parties-In-Interest,
Iain G. Simpson, and Real-Parties-In-Interest are unopposed to this motion.
/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: September 11, 2015
47886_1 12 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows:
Counsel for Real-Parties-In-Interest:
Iain G. Simpson SIMPSON, P.C. 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 Via TexFile
Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 Via TexFile
Respondent:
The Honorable Patricia Grady 212th Judicial District Court 600 59th Street Galveston, Texas 77550 Via US Mail
/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: September 11, 2015
47886_1 13 Tab A Motion Requesting the Trial Court to Provide Its Reasons for Refusing to Enter Judgment on the Jury Verdict Filed: 9/11/2015 10:27:08 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 6881639 By: Shailja Dixit 9/11/2015 11:45:47 AM CAUSE NO. 12CV1541
VERNON FOX AND MIKKI FOX § IN THE DISTRICT COURT OF
VS. § GALVESTON COUNTY, TEXAS
NUSTAR LOGISTICS, LP., and VALERO ENERGY CORPORATION § 212TH JUDICIAL DISTRICT
MOTION REQUESTING THE TRIAL COURT TO PROVIDE ITS REASONS FOR REFUSING TO ENTER JUDGMENT ON THE JURY VERDICT
Valero Refining-Texas, L.P. respectfully files this motion in response to the Foxes'
assertion that "Judge Grady's Order does not specify the reasons for her denial of Valero's
Motion for Reconsideration." Inevitably, the Court will have to give its reasoning for failing to
give effect to the jury's verdict. That should have happened when Valero asked for an
independent analysis in the reconsideration motion. Those reasons should be given now, or the
Court should reinstate the Final Judgment consistent with the jury verdict.
SUMMARY OF MOTION
Good arguments support the relief requested in this motion-that the Court provide its
reasons for refusing to enter judgment on the jury verdict. Because the jury verdict was
overturned, and the new trial order was left undisturbed, both the jury and the litigants deserve to
know why their trial time was wasted. Clarification is being requested now because the Foxes
have run far away from what they told this Court in responding to the motion for reconsideration
of the new trial order. In response to Valero's mandamus petition, the Foxes have made
arguments without regard for the "considerations of consistency and continuity" that they
trumpet in their mandamus brief. See Mand. Resp. at 14; Tab A. Their lack of continuity in
argument compels this Court to explain why it will not render judgment on the jury's verdict. Pinning down the Foxes' position should be enough justification for this motion, but there are
other valid reasons.
First, Texas Supreme Court precedent has confronted this precise circumstance, when a
successor trial judge reaffirms the original new trial order without giving reasons. In that
circumstance, the second trial judge is supposed to state a rationale for undoing the jury verdict.
Precedent demands such an order.
Second, the Foxes' bluff should be called. They pretend that Valero "sat on its hands"
and did not ask for reasons to be given for this Court's denial of reconsideration. As shown
below, that statement is false, but even if true, the time is right now to follow precedent and to
provide a rationale.
Third, a writ of mandamus is always directed to the current office holder, who will have
to obey the writ as the judge of this district court. The Foxes have admitted that "Judge Grady's
Order does not specify the reasons for her ... refusal to enter judgment on the jury verdict." See
Mand. Resp. at 13; Tab A. This is an abuse of discretion. See In re Cook, 356 S.W.3d 493, 495
(Tex. 2011) ("[A] trial court's failure to clearly state the reasons for setting aside a jury verdict ..
. constitutes an abuse of discretion."). The only question, it seems, is whether the Court will act
now on its own. "[I]n the final analysis any judge sitting in the case after mandamus relief is
granted would be compelled to obey [an appellate court's order to provide reasons]." In re
Schmitz, 285 S.W.3d 451, 454 (Tex. 2009). Rather than await an order to follow precedent and
give reasons after the court of appeals rules, this Court should act now. Valero has asked for an
abatement of the mandamus until this Court rules on this motion, so there is time.
2 ARGUMENT
I. The Foxes Have Changed Their Arguments for Upholding Judge Griffin.
This motion is being filed because the Foxes have taken flip-flopping positions. Those
inconsistent positions begin with the recent (untrue) assertion that Valero never asked before that
the Court provide reasons for denying reconsideration of the new trial. In fact, Valero argued at
length, in response to the Foxes' argument that this Court's powers of review were limited, that
the Court not only should reconsider Judge Griffin's order, but that it must do so, and that its
review should be independent. Valero's argument came in reply to the Foxes' argument that this
Court should defer to Judge Griffin, and leave his order intact, because "The currently presiding
judge of this Court was not the one who oversaw the trial of this case or considered Fox's
Motion for New Trial." Resp. to Motion for Reconsideration at 15. Valero's position then-and
now-consistently has been that it wanted the Court's independent, considered reflections on
whether the jury verdict should have been disregarded:
Not only does this Court have the power to reconsider whether the jury verdict should have been disregarded in favor of a new trial, it has a responsibility to engage in such review. In re Baylor Med. etr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008). Moreover, because Judge Griffin is no longer on the bench, his successor is required to reconsider his decision before an appellate court can issue a writ of mandamus. Id. at 228 ("Mandamus will not issue against a new judge for what a former one did."); State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) ("A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks."); TEX. R. ApP. P. 7.2(b) ("the successor [must] reconsider the original party's decision."). This Court is, therefore, expected to apply its own. independent analysis to the issue ofwhether a new trial should have been ordered and is neither bound by Judge Griffin's decision nor limited to determining whether that decision was an abuse of discretion.
Valero's Reply at 2 (emphasis added). Valero did request an independent analysis of the new
trial order. Such an independent analysis would have provided some basis for refusing to render
judgment on the jury verdict.
3 After at first shining a spotlight on Judge Griffin's new trial order and arguing that this
Court need not give its own reasons but should just defer to Judge Griffin, the Foxes now have
filed a brief in the court of appeals that asserts such an approach is wrong. They say it is not
Judge Griffin's order that counts, and that the propriety of mandamus relief depends entirely
upon this Court's order denying reconsideration. They have briefed that this Court's order, "is no
less a refusal to enter judgment on the jury verdict than was Judge Griffin's, and it is the only
Order that counts now." Resp. to Mandamus Pet. at 13; Tab A. The inconsistency in these
positions precipitates Valero's motion seeking reasons for why this Court refused to uphold the
jury verdict.
II. The Court Is Required to Provide Its Reasons For Upholding the New Trial.
A. Supreme Court precedent demands a statement of independent reasoning from this Court for why it has not rendered judgment on the jury's verdict.
Earlier, on the motion for reconsideration, the Foxes argued: "the present Court sits in the
same position as an appellate tribunal, not having been present at the trial of this matter." Resp.
to Motion for Reconsideration at 2. In that role, this Court is supposed to look to Supreme Court
case law. The Texas Supreme Court holds that when a successor trial judge "reaffirm[s] the
original new trial order without giving reasons for doing so, mandamus relief [will issue]
directing the trial court to provide its reasons for refusing to enter judgment on the jury verdict."
In re Baylor Medical Center at Garland, 289 S.W.3d 859, 860 (Tex. 2009).
The Foxes incorrectly asserted in their earlier briefing that a successor trial judge is
excused from giving reasons and should just defer to the first judge's order unless an abuse of
discretion is shown. Yet there is no safe harbor provided by deferring to Judge Griffin's order,
and precedent would "direct the trial court to specify the reasons that it refused to enter judgment
on the jury verdict and affirmed the granting of a new trial." Id. at 861. Even when a successor
4 judge signs "an order stating only that [her] predecessor's ruling 'should remain unchanged,'"
mandamus will issue to force a successor judge to rule with reasons. In re Cook, 356 S.W.3d
493,494 (Tex. 2011).
An order with specific reasons is the right result here because this Court's order
reaffirming Judge Griffin's new trial was "effectively an order refusing to enter judgment on the
jury verdict and affects the rights of the parties no less than did the orders of the original judge,"
and Valero is "entitled to know those reasons just as much as it would be entitled to know the
reasons for the orders entered by the former trial judge." In re Columbia Med. Ctr. of Las
Colinas, 290 S.W.3d 204, 214 (Tex.2009). "[A] trial court's failure to clearly state the reasons
for setting aside a jury verdict and for granting a new trial constitutes an abuse of discretion for
which there is no adequate remedy by appeal." In re Cook, 356 S.W.3d at 495. "Reaffirming the
former trial court's order [is] tantamount to granting the motion for new trial. Consequently, the
successor trial court must provide its own statement of the reasons for setting aside a jury
verdict." Id. at 495. This Court should act now and follow Supreme Court precedent in
providing its own rationale for denying judgment on the jury verdict.
B. Contrary to the Foxes' arguments, Valero did ask before, on reconsideration of the new trial order, that this Court conduct an independent analysis and give its reasoning.
In their mandamus response brief, the Foxes belittled Valero because, allegedly, "Valero
has sat on its hands in the trial court since mid-April ... never requesting a more specific order,
and never requesting the justification or basis for Judge Grady's decision." Mand. Resp. at 12-
13; Tab A. Actually, Valero has asked before, and it returns to this Court again now because, as
the case law directs, the Court is supposed to say why it has not rendered the judgment that the
jury expected and that Valero deserves.
5 Nevertheless, apparently the Foxes were successful in convincing this Court that it did
not need to conduct an independent analysis or do its own reasoning-instead asking that this
Court "refuse Valero's invitation to re-visit the settled Order of a judge who was there," and
presuming that this Court should act only as an appellate reviewer, looking for an abuse of
discretion. Resp. to Motion for Reconsideration at 15, 3-4, 7-8. The Foxes sought to leave
Judge Griffin's order alone, arguing "the Court should be reluctant to disturb that decision." Id
at 8. And further, at oral argument on the motion for reconsideration, Mr. Todd urged the Court
not to look too hard at what Judge Griffin had done, or the floodgates would come unhinged:
Now, we would submit that we can't second-guess Judge Griffin or we're going to get second-guessing all over the place all the time we have a circumstance like this occur.
Hearing Tr. 03/13/15, ROA at 1929; Tab B. In no uncertain terms, Mr. Todd asked this Court to
give extraordinary and unwarranted deference to Judge Griffin: "I submit that we defer to Judge
Griffin." Id at ROA 1942-43; Tab B.
Those attempts to divert this Court from its duty under Supreme Court precedent, and to
focus entirely on Judge Griffin's order, are incorrect and inconsistent. Despite their earlier
arguments, now the Foxes argue on mandamus, "Judge Griffin's order for new trial is no longer
at issue." Mand. Resp. at 12; Tab A. The Foxes should not be permitted to run away from their
earlier arguments now, having secured this Court's order upholding the ruling by Judge Griffin
out of deference.
C. This Court would be compelled to act if mandamus relief is granted.
The Foxes have argued in the appellate court that "Judge Griffin is not the Respondent in
this case and is not the one who would be compelled to act by any writ issued by this Court."
Resp. Mand. Pet. at 12; Tab A. In truth, as Justice Scott Brister has written, it really does not
matter who the judge is: "[T]he writ must be directed to someone, but in the final analysis any
6 judge sitting in the case after mandamus relief is granted would be compelled to obey it." In re
Schmitz, 285 S.W.3d 451,454 (Tex. 2009). Therefore, the sitting judge in this Court is being
asked to act first, before a writ issues that would direct an independent analysis of the new trial
order.
PRAYER
The motion should be granted and, following precedent, the Court should "specify the
reasons why it refused to enter judgment on the jury verdict." See In re Columbia Med. Ctr. of
Las Colinas, 290 S.W.3d 204, 215 (Tex.2009) (requiring "clearly identified and reasonably
specific" reasons); In re Cook, 356 S.W.3d 493, 495-96 (Tex. 2011). Alternatively, the Court
should reinstate the Final Judgment consistent with the jury verdict. Valero asks for all relief to
which it is entitled.
7 Respectfully submitted,
TEKELL, BOOK, ALLEN & MORRIS, LLP HOGAN & HOGAN
By: /s/ David W. Burns By: /s/ Richard P. Hogan. Jr. David W. Burns Richard P. Hogan, Jr. State Bar No. 00785735 State Bar No. 09802010 db@tekellbook.com rhogan@hoganfirm.com 1221 McKinney, Suite 4300 Jennifer Bruch Hogan Houston, Texas 77010 State Bar No. 03239100 713.222.9542-telephone jhogan@hoganfirm.com 713.655.7727-facsimile James C. Marrow State BarNo. 24013103 DOWD BENNETT, LLP jmarrow@hoganfirm.com Pennzoil Place James F. Bennett 711 Louisiana, Suite 500 State Bar No. 46826 Houston, Texas 77002 jbennett@dowdbennett.com 713.222.8800-telephone Megan Heinsz 713.222.8810-facsimile State Bar No. 56377 mheinsz@dowdbennett.com THE VALERO COMPANIES 7733 Forsyth Boulevard St. Louis, Missouri 63105 Alex M. Miller 314.889.7300-telephone State Bar No. 00791263 314.863.2111-facsimile alex.miller@valero.com One Valero Way San Antonio, Texas 78249 210.345.2857-telephone 210.345.4567-facsimile
ATTORNEYS FOR VALERO REFINING-TEXAS, L.P.
8 CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows:
lain G. Simpson SIMPSON, P.C. 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 Via EFile
Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 Via EFile
lsi David W Burns David W. Burns Dated: September 11, 2015
CERTIFICATE OF CONFERENCE
This matter has been discussed with opposing counsel, Alton Todd, and he is opposed to Movant's request under the motion.
lsi David W Burns David W. Burns Dated: September 11, 2015
9 TAB A ACCEPTED 01-15-00566-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/27/20153:27:53 PM CHRISTOPHER PRINE CLERK
~o.Ol-15-00566-~
I~THE
FIRST COURT OF APPEALS
AT HOUSTO~, TEXAS
I~ RE VALERO REFI~I~G - TEXAS, L.P.,
Original Proceeding arising from Cause No. 12CV1541, in the 212th District Court of Galveston County, Texas
REAL PARTY I~ I~TEREST'S RESPO~SE TO PETITIO~ FOR WRIT OF MA~DAMUS
SIMPSON, P.C.
lain G. Simpson State Bar No. 00791667 1333 Heights Blvd., Suite 102 Houston, Texas 77008 (281) 989-0742 (281) 596-6960 - fax iain@simpsonpc.com
ApPELLATE COUNSEL FOR REAL PARTIES IN INTEREST VERNON Fox AND MIKKI Fox
ORAL ARGUMENT CONDITIONALLY REQUESTED IDENTITY OF PARTIES AND COUNSEL
Real Parties in Interest: Counsel for Real Parties in Interest:
Vernon Fox and Mikki Fox Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 281-992-8633 281-648-8633 - facsimile
TRIAL COUNSEL
lain G. Simpson SIMPSON, P.C. 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 281-989-0742 281-596-6960 - facsimile
ApPELLATE COUNSEL
11 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .ii
INDEX OF AUTHORITIES vi
STATEMENT REGARDING ORAL ARGUMENT .ix
RESPONSIVE ISSUES PRESENTED 1
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 7
ARGUMENT ~ 10
The Standard of Review 10
Responsive Issue One 11
Mandamus cannot issue against a successor judge for her predecessor's order. Valero attacks the wrong order and asks for the wrong relief. Valero's Petition must be denied.
A. Judge Griffin's Order for new trial is no longer at issue 12
B. Judge Grady's Order does not state her basis, and Valero never asked Judge Grady to do so 12
Responsive Issue Two 14
Judge Grady's reasons for declining to reconsider Judge Griffin's order may include considerations of judicial consistency and continuity within the case and her court, as well as recognition that her predecessor was actually present for trial and able to view witness testimony. Such
111 considerations are anything but unguided and unprincipled. They cannot be an abuse of discretion.
A. Consistency of decisions within a single case is a valid judicial concern 14
B. Decision of the case at bar and the trial court's order for new trial rested upon the credibility of many witnesses, none of whose testimony Judge Grady was able to hear in person 15
C. Both considerations of consistency and lack of opportunity to weigh the credibility of witnesses may constitute good cause for allow Fox's new trial to proceed 17
Responsive Issue Three 18
Should the Court decide to consider it, Judge Griffin's Order was supported by his own observation of all witnesses during testimony in open court and his evaluation of their credibility.
A. Valero's experts never testified that Fox's experts were wrong 18
B. Fox presented evidence that, even if subjective, is still evidence ,; 19
Responsive Issue Four 21
Evidence showed that Fox suffered physical injury from chemical exposure that is more than just mental anguish and that demonstrated both specific and general causation.
iv A. Valero mischaracterizes and mInImIzes the nature of Fox's injury in an effort to make its point 21
B. Valero never actually argues that Fox failed to show general causation 22
C. Fox presented evidence of specific exposure to particular toxins 23
CONCLUSION 24
PRAyER 25
CERTIFICATE OF COMPLIANCE 26
CERTIFICATE OF SERVICE 27
v INDEX OF AUTHORITIES
Cases
Borg-Warner v. Flores, 232 S.W.3d 765 (Tex. 2007) 23
Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591 (Tex. App.-Houston [1 st Dist.] 2002, pet. denied) 22
Downer v. Aquamarine Operators, 701 S.W.2d 238 (Tex. 1985) 10
E.1. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) 19
Holloway v. Fifth Court ofAppeals, 767 S.W.2d 680 (Tex. 1989) 10, 13
In re Anna C. Smith, 332 S.W.3d 704 (Tex. App.- Texarkana 2011, orig. proceeding) 20
In re Baylor Med. Ctr. at Garland ("Baylor 1"), 280 S.W.3d 227 (Tex. 2008) 11
In re Baylor Med. Ctr. at Garland ("Baylor II"), 289 S.W.3d 859 (Tex. 2009) 12
In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2007) 12, 17
In re Cook, 356 S.W.3d 493 (Tex. 2011) 12, 13
VI In re Prudential Ins., 148 S.W.3d 124 (Tex. 2003) 10
In re Schmitz, 285 S.W.3d 451 (Tex. 2009) 11
In re Toyota Motor Sales, 407 S.W.3d 746 (Tex. 2014) 20
In re United Scaffolding, 377 S.W.3d 685 (Tex. 2012) 13, 17
Paradigm Oil v. Retamco Operating, 372 S.W.d 177 (Tex. 2012) 15
Slaughter v. Abilene State School, 561 S.W.2d 789 (Tex. 1977) 19
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) 10
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 10
Rules
TEX. R. ApP. P. 7.2 7, 11
TEX. R. CIV. P. 320 16
Secondary Sources
Michael Henke and Craig Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter, 1998) 16
VB Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n. 238 (2009) 16
Jansen Voss, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 L. & PSYCHOL. REV. 201, 216 (2005) 16
Vll1 STATEMENT REGARDING ORAL ARGUMENT
Real Parties in Interest, Vernon Fox and Mikki Fox (together, "Fox),
request oral argument in this matter but only conditionally and only
because Relator, Valero Refining- Texas, L.P., has done so. In truth, Fox
believes that little reason exists for the Court to hear oral argument in this
matter. Should the Court even reach the majority of the record in this case,
a review of that record is all that is necessary for the Court's decision. Oral
argument can shed minimal additional light. Consequently, should the
Court grant oral argument to Valero, Fox requests equal time. Otherwise,
Fox waives oral argument.
IX RESPONSIVE ISSUES PRESENTED
1. Mandamus cannot issue against a successor judge for her predecessor's order. Valero attacks the wrong order and asks for the wrong relief. Valero's Petition must be denied.
2. Judge Grady's reasons for declining to reconsider Judge Griffin's order may include considerations of judicial consistency and continuity within the case and her court, as well as recognition that her predecessor was actually present for trial and able to view witness testimony. Such considerations are anything but unguided and unprincipled. They cannot be an abuse of discretion.
3. Should the Court decide to consider it, Judge Griffin's Order was supported by his own observation of all witnesses during testimony in open court and his evaluation of their credibility.
4. Evidence showed that Fox suffered physical injury from chemical exposure that is more than just mental anguish and that demonstrated both specific and general causation.
STATEMENT OF FACTS
On January 12, 2011, Valero's Texas City refinery released crude oil
from a storage vessel in its tank farm, due to overfilling. Droplets of crude
oil crossed the road where Vernon Fox, an employee of BP, traveled that
day. This much is firmly established by the evidence, and no one disputes
it. Fox was on the road near the release when it occurred. Fox testified to
1 it, and no one disputes it.
In its briefing, Valero suggests that Fox was not exposed to anything
from the spill until approximately an hour after the overflow had been
stopped. Valero's Petition, at 2. It also notes that Fox had a H 2S monitor
on his person that was not triggered. Id. But Fox's testimony is somewhat
different. Fox testified that he was aware of unusual "smells" when he
passed by Valero's tank farm on the way to check a valve that morning,
though he did not see anything overflowing. ROA 1:933-44. He testified
that those "smells" were much stronger on the return leg of his journey.
ROA 1:945. While Fox had his H 2S monitor in the cab of his truck, he was
not wearing it at the time. ROA 1:945. It was on his jacket, which was on
the truck seat beside him. Id. On the return leg of his journey, Fox
described driving into a "vapor cloud." ROA 1:946. Perceiving an unsafe
situation that needed to be addressed and intending to look for a leak, Fox
stopped his truck and exited the cab, leaving his H 2S monitor behind. Id.
Having observed a spill, Fox returned to his office where he contacted
Valero concerning the spill. ROA 1:947. Fox testified that he was shaken
by the realization that he had been exposed to a chemical or chemicals that
could have been ignited, even as he stood there. ROA 1:947-48. Later that 2 day, Fox's supervisor sent him home. ROA 1:948-49. The disputes arise
with regard to Fox's claimed harm. Valero's argument is that Fox was
"faking it."
As both fact and expert witness, Fox presented evidence concerning
his course of treatment by Dr. Ly, his treating psychiatrist, who diagnosed
Fox with a major depressive disorder. He also presented evidence from Dr.
Polk, a clinical psychologist, who cared for and treated Fox for a
considerable period. ROA 1:733. Dr. David Axelrad is a psychiatrist and
neuropsychiatrist who examined Fox at the request of his counsel. ROA
1:1175. Dr. Axelrad has specific experience treating patients with post-
traumatic stress disorder (PTSD). ROA 1:1180, 1:1193. Dr. Axelrad
testified that PTSD is a form of physical brain injury resulting from the
release of excess stress chemicals. ROA 1:1266. When under stress, the
body releases cytokines that promote an inflammatory response. ROA
1:1205. This is more than simple anxiety, but an actual physical response to
extreme stress.
Dr. Axelrad testified that Fox suffers from a major neurocognitive
disorder, resulting from physical brain injury secondary to exposure to
neurotoxins. ROA 1:1197-98. These brain injuries and the resulting 3 neurocognitive disorder manifest in major impacts on his behavior. ROA
1:1198. Dr. Axelrad also noted that, where a person has suffered brain
injury and potentially life-threatening circumstances, this can lead to the
development of PTSD. ROA 1:1201. Dr. Axelrad observed that multiple
professionals - a clinical psychologist following Fox over a period of time
and a treating psychiatrist-diagnosed Fox with PTSD. ROA 1:1202. He
also testified that, in his estimation, Fox meets the criteria for a PTSD
diagnosis. ld.
Dr. Priscilla Ray is a psychiatrist, brought to trial as an expert witness
by Valero. Dr. Ray testified that Dr. Ly-Fox's treating psychiatrist-
followed appropriate standards of care in treating him, prescribing
psychotherapy and medication. ROA 1:1501-02. Dr. Ray testified that Fox
claimed symptoms consistent with the disorders he claims and that Dr. Ly
prescribed appropriate medication for post-traumatic stress disorder
(PTSD). ROA 1:1503-04. Dr. Ray also agreed that, if Fox did not show
particular symptoms of PTSD upon her examination of him, this could be
due to the fact that medication he was prescribed for that condition was
actually working. ROA 1:1502.
4 Dr. Ray testified that Fox suffered from major depression and from a
somatic symptom disorder. ROA 1:1524. She acknowledged that he
showed no such symptoms before his exposure to the chemical release.
ROA 1:1523-24. She acknowledged that, before this incident, he was a
healthy, happy family man, one who enjoyed working. ROA 1:1523. She
acknowledged that Fox reported feeling "defeated" and that Dr. Axelrad-
who diagnosed Fox with PTSD-could be right. ROA 1:1525. She said
that, even in her own opinion, Fox could have "a major depressive
disorder." ROA 1:1525-26.
Dr. Ray's explanation for Fox's situation is "malingering" in pursuit
of an "external incentive" -money. ROA 1:1522. She testified that pursuit
of a lawsuit or disability payments could have motivated him. ROA
1:1520-21. But she could provide no explanation as to why Fox continued
to work for a year following his exposure, and used up his sick time and
vacation time in that spell. Id. She also could provide no explanation as to
why a malingerer" would wait over a year, post-accident, to consult a /I
lawyer. Id.
Dr. Ray confirmed that Fox was diagnosed with a major depressive
disorder by multiple doctors. ROA 1:1532. She confirmed that Dr. Ly 5 mentions his suicidal ideation. ROA 1:1549. This occurred in September
2011, prior to any discussion with Dr. Axelrad, Fox's expert witness. ROA
1:1551. The diagnosis and symptoms discussed, up to that point, came
solely from Fox's treating health care and mental health care providers. Dr.
Ray was asked about Fox's anxiety about returning to work and agreed
that it could arise from returning to the location where his chemical
exposure occurred. ROA 1:1559. She recognized the recommendation that
he take time away from work because of possible safety concerns related to
his anxiety and PTSD and that this time away was recommended by his
treating health care providers. ROA 1:1560. Again, she recognized that
this was prior to any meeting with Dr. Axelrad. ROA 1:1560-61.
Dr. David Rosenfield is a neurologist and expert witness retained by
Valero. ROA 1:1572. In his testimony, Dr. Rosenfield confirmed his
understanding that, among the chemical components to which Vernon Fox
would have been exposed were hydrogen sulfide (referred to throughout
the proceedings as ilH2S") and benzene. ROA 1:1630-31. Dr. Rosenfield
observed that the fact of exposure was not dependent upon the amount of
oil or chemicals spilled. ROA 1:1631. Dr. Rosenfield confirmed that H 2S is
a neurotoxin and can create neurocognitive deficits. ROA 1:1617. It can 6 also cause a number of other symptoms, including headache, dizziness,
weakness, exhaustion, irritability, and insomnia. ROA 1:1621-22. Dr.
Rosenfield confirmed that these were symptoms described by Fox. ROA
1:1623-24. OSHA instructs that, at lower concentrations, the effects of
exposure can be delayed. ROA 1:1623.
Dr. Rosenfield confirmed that H 2S exposure can occur through
inhalation or through eye or skin contact. ROA 1:1621. While apparently
disputing Fox's testimony at trial, he testified in his deposition that Fox
was most likely exposed to chemical vapors. ROA 1:1633-34. Finally, Dr.
Rosenfield confirmed that breathing in H2S can interfere with the enzyme
cytochrome oxidase, an enzyme necessary for brain cells' use of oxygen.
ROA 1:1644-45. That interference with oxygen use can cause damage to the
brain. Id.
SUMMARY OF THE ARGUMENT
Valero makes much of Hon. Brent Griffin issuing his Order for a new
trial on his final day in office, and it spends almost its entire petition
attacking the correctness and propriety of Judge Griffin's Order. But it is
not Judge Griffin's Order that is in question. A writ of mandamus must be
directed to someone, and that someone cannot be an official who no longer 7 holds office. Such is the rationale for TEX. R. ApP. P. 7.2(b), which provides
for abatement of an original proceeding in order to allow a new office
holder to reconsider the actions and orders of her predecessor and provide
opportunity to give her own opinion and grounds to justify or refute such
an order. That is both the situation here and not the situation here.
Two trial judges, not just one, rejected Valero's position. Valero
attacks the wrong order and provides an insufficient mandamus record.
Valero attacks Judge Griffin's Order, but it is Hon. Patricia Grady's Order
on Valero's Motion for Reconsideration that holds sway. It is Judge Grady
who is the Respondent in this matter, and Judge Grady took office and
considered the issues at bar well before Valero filed the current Petition.
Yet, even knowing that appropriate specificity of a new trial order was an
issue in this matter - having pressed it as part of its Motion for
Reconsideration (ROA 137-139)- Valero sat on its hands as Judge Grady
signed a single-page Order denying its Motion for Reconsideration and
cementing Fox's right to a new trial. ROA 188. Valero never protested or
sought any greater detail, and the bases for Judge Grady's Order are a
mystery. Mysteries cannot support mandamus. Valero argues that
judgment on the jury's verdict should have been entered but never sought 8 an explanation as to why it was not. What Valero seeks by way of
mandamus this Court cannot grant.
Even so, the potential bases for Judge Grady's Order range beyond
what could have been contemplated by Judge Griffin. Maintaining
consistency and continuity of judicial decision-making within a Court and
a single case; the simple fact that Judge Griffin was able to evaluate the
credibility of each witness in open court rather than from a cold record,
these are factors that might well have figured in Judge Grady's calculus.
As Valero itself admits, the case is largely about credibility. Contrary to
Valero's position, however, jurors are not the only ones who evaluate
witness credibility. Short of a finding that such reasons are "no reason,"
Judge Grady's Order cannot be an abuse of discretion.
Finally, even if the Court should delve back into the activities of
Judge Grady's predecessor, it will find that Judge Griffin's Order was well
within the bounds of his discretion. Valero's own expert witnesses could
not rule out Fox's claim to damages, and, even as Valero criticizes Fox's
description of symptoms as entirely subjective, its own experts throw
around a "diagnosis" of "malingering" - a subjective estimation, if ever
there were. 9 ARGUMENT
The Standard of Review
Mandamus is an extraordinary remedy, reserved for use in instances
of manifest and urgent necessity. Holloway v. Fifth Court of Appeals, 767
S.W.2d 680, 684 (Tex. 1989). It is not issued as a matter of right, but solely at
the discretion of the court, In re Prudential Ins., 148 S.W.3d 124, 138 (Tex.
2003), and only when the relator "satisfies a heavy burden of establishing
'compelling circumstances.'" Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.
1996). "As a selective procedure, mandamus can correct clear errors in
exceptional cases and afford appropriate guidance to the law without the
disruption and burden of interlocutory appeal." Id. But the Court may
issue mandamus only when the relator demonstrates and the Court finds
that (1) the trial court has committed a clear abuse of discretion and (2) the
relator lacks any adequate remedy at law. Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992).
A trial court abuses its discretion only if it acts without reference to
any guiding rules and principles. Downer v. Aquamarine Operators, 701
S.W.2d 238, 241-42 (Tex. 1985). The question is not whether the reviewing
court believes the trial court's action appropriate or correct. Id. Valero
10 argues steadily concerning what the jury could have found, but it fails to
focus on what the trial court did find. As relator in a mandamus
proceeding, it is not enough for Valero to state that its sought after result is
a reasonable, permissible outcome. It must argue that it is the only outcome
consistent with the law.
Responsive Issue One
Mandamus cannot issue against a successor judge for her predecessor's order. Valero attacks the wrong order and asks for the wrong relief. Valero's Petition must be denied.
Although a particular respondent is not critical in a mandamus
proceeding, the writ must be directed to someone. In re Schmitz, 285 S.W.3d
451,454 (Tex. 2009). And generally a writ will not issue against one judge
for what another did. In re Baylor Med. etr. at Garland, 280 S.W.3d 227, 228
(Tex. 2008) ("Baylor I"). Thus, in an original proceeding where the judge
who signed the order at issue has "cease[d] to hold office, an appellate II
court"must abate the proceeding to allow the successor to reconsider the
original party's decision. TEX. R. ApP. P. 7.2. Consequently, the Texas II
Supreme Court has refused to consider the reasons given by a first trial
judge in a new trial order, when it was a successor's refusal to reconsider
11 the order that was at stake. See In re Baylor Med. Ctr. at Garland, 289 S.W.3d,
859/860 (Tex. 2009) CBaylor II").
A. Judge Griffin's Order for new trial is no longer at issue.
Valero complains-exclusively-about the actions of Judge Griffin. It
explores and examines Judge Griffin/s new trial order. But Judge Griffin is
no longer the judge of the 212th District Court. Judge Griffin ceased being
the judge of that Court long before Valero ever filed its Petition for Writ of
Mandamus. And Judge Griffin is not the Respondent in this case and is not
the one who would be compelled to act by any writ issued by this Court.
1/ As in Columbia and Baylor II ... the former trial court's order is no longer
at issue here, as the successor trial judge has since issued a subsequent
order." See In re Cook, 356 S.W.3d 493/ 495 (Tex. 2011) (citing In re Columbia
Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2007).).
B. Judge Grady's Order does not state her basis, and Valero never asked Judge Grady to do so.
Even as it raised the alleged dearth of specificity of Judge Griffin' s
Order in its Motion for Reconsideration (ROA 137-139)/ Valero has sat on
its hands in the trial court since mid-April, when Judge Grady denied that
Motion, never requesting a more specific order, and never requesting the
12 justification or basis for Judge Grady's decision. And now, Valero comes to
this Court in the name of "manifest and urgent necessity." See Holloway,
767 S.W.2d, at 684. Valero simply cannot demand the Court exercise its
extraordinary writ power under such circumstances.
Judge Grady's Order does not specify the reasons for her denial of
Valero's Motion for Reconsideration. ROA 188. Yet that Order is no less a
refusal to enter judgment on the jury verdict than was Judge Griffin's, and
it is the only Order that counts now. See Cook, 356 S.W.3d, at 494. The
Court may not presume that, simply because a valid basis is not stated in
the Order, that Judge Grady did not have one. See In re United Scaffolding,
377 S.W.3d 685, 690 (Tex. 2012) (trial court's failure to state why it granted a
new trial does not mandate a conclusion that it did not have a valid reason
for doing so). Valero's failure to request Judge Grady's rationale leads
directly to a failure of its mandamus record, and the Court need read no
further. Because Valero does not present a record that contains this crucial
information, everything else in the record is irrelevant. The record Valero
provides is wholly insufficient to show Valero's right to the relief it seeks.
Valero's Petition must be denied.
13 Responsive Issue Two
Judge Grady's reasons for declining to reconsider Judge Griffin's order may include considerations of judicial consistency and continuity within the case and her court, as well as recognition that her predecessor was actually present for trial and able to view witness testimony. Such considerations are anything but unguided and unprincipled. They cannot be an abuse of discretion.
Valero's burden in its Petition is to show that Judge Grady acted
arbitrarily and without reference to any guiding principle in her denial of
Valero's Motion for Reconsideration. As has already been argued, Valero
cannot show why Judge Grady acted as she did, at all, because Valero
never asked her. Nevertheless, as the new judge of a trial court being
asked to reconsider the actions of her predecessor, Judge Grady faced
concerns distinct from those of Judge Griffin.
A. Consistency of decisions within a single case is a valid judicial concern.
Valero bases its arguments on what the jury could have found, rather
than reviewing what the trial court actually did find. It was the latter that
was the basis for its order, not what is cited by Valero. Of course, once
again, Valero did not inquire about that basis. That said, consistency of
judicial decision-making, particularly within a single case, is a valid
14 concern for any court. See, e.g., Paradigm Oil v. Retamco Operating, 372
S.W.3d 177/ 182 (Tex. 2012) (noting the effect of the "law of the case"
doctrine). The "law of the case" doctrine applies to questions of law,
however, the concerns underpinning it are no less valid when applied to
factual determinations and applicability of legal standards. As the newly
elected judge of the 212th District Court, Judge Grady may well have been
reluctant to go down a path of reconsidering her predecessor's orders,
wholesale. If she were to do so in one case, she might be expected to in
every case. Mandamus exists to correct clear errors in extraordinary cases.
It does not exist to allow litigants to nitpick trial court decisions and press
appellate courts to micromanage trial court cases and dockets.
B. Decision of the case at bar and the trial court's order for new trial rested upon the credibility of many witnesses, none of whose testimony Judge Grady was able to hear in person.
As the only judge who was present in the courtroom for the trial of
this matter and the testimony of each witness, Judge Griffin was in a
position to see what neither Judge Grady nor this Court can see. Valero
itself states that the overriding factor in determining the outcome of this
case is credibility. While Valero cites, in particular, Vernon Fox/s
credibility, the credibility of every witness is significant. Fox's testimony is 15 of particular significance because the centerpiece of Valero's argument is
not that he was not exposed to any harmful chemical, but that he is faking
his symptoms.
Judge Griffin was able to see and hear each witness-including Fox-
testify, rather than relying upon a cold record. Because credibility is such
an issue in this matter, Judge Grady was entirely justified in leaving her
predecessor's new trial order undisturbed. She had only a transcript before
her and could not evaluate the testimonial demeanor of the witnesses.!
Her reluctance to backtrack from Judge Griffin's order under such
circumstances cannot constitute an abuse of her discretion.
C. Both considerations of consistency and lack of opportunity to weigh the credibility of witnesses may constitute good cause for allowing Fox's new trial to proceed.
The Texas Supreme Court has expressly declined to define what
constitutes the" good cause" for which TEX. R. CIV. P. 320 permits a new
1 Further, psychologists suggest that non-verbal communication accounts for 65 to 70 percent of the total communication between humans. Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n. 238 (2009) (citing Jansen Voss, The Science ofPersuasion: An Exploration ofAdvocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 L. & PSYCHOL. REV. 201, 216 (2005). Other estimates place the figure higher. Michael Henke and Craig Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter, 1998) ("One commentator has suggested that as much as 60% to 93% of all communication is non-verbal."). Again, this sort of communication was something Judge Griffin could see that Judge Grady could not. 16 trial. See In re Columbia, 290 S.W.3d, at 210 n. 3. In the same case, the Court
reiterated the broad discretion that trial courts have to grant new trials. 290
S.W.3d, at 210. Absent any authority suggesting that consistency of
practice and limitations on Judge Grady's ability to evaluate the effect of
witness testimony are not valid considerations, the Court should presume
that they are. Again, Valero failed to ask Judge Grady about the reasons
for her Order, but both of the above-raised grounds were a part of Fox's
response to Valero's Motion for Reconsideration. ROA 1:143-58. "In most
cases a new trial will be granted for reasons stated in a motion for new
trial, so that such an explanation will alert the parties to the reason the
judge found persuasive, further illuminating the substantive basis for the
order." In re United Scaffolding, 377 S.W.3d, at 688. Based on this, Valero is
on notice of both of the above-stated rationales, yet still fails to attack either
in its Petition. Once again, Valero's Petition fails and must be denied.
17 Responsive Issue Three
Should the Court decide to consider it, Judge Griffin's Order was supported by Fox's expert witness testimony that linked his chemical exposure to his PTSD and depression, and Valero's experts even admitted that testimony could be correct.
Fox testified to the fact of his own chemical exposure. ROA 1:946.
His physician and psychologist experts gave information concerning Fox's
major depressive disorder, and Dr. Axelrad testified as to how the
exposure could lead to PTSD - a physical condition with behavioral
manifestation. Three experts - Drs. Polk, Pollock, and Axelrad - testified
that the severe depression and major depressive disorder suffered by Fox
resulted from his chemical exposure.
A. Valero's experts never testified that Fox's experts were wrong.
But even more telling is the testimony of Drs. Ray and Rosenfield,
both retained by Valero. Despite Dr. Ray offering an alternative
explanation for Fox's symptoms from that posited by Dr. Axelrad, she
never testified that Dr. Axelrad was wrong. Indeed, she testified that he
could be right. ROA 1:1525. Likewise, Dr. Rosenfield-who never actually
examined or met Fox - confirmed that Fox's claimed route of H 2S exposure
is a genuine avenue of such exposure and that H 2S is a neurotoxic
18 substance that can cause the sort of neural deficits and problems of which
Fox complains. ROA 1:1617. Dr. Rosenfield also testified to the physical
damage that such exposure can cause, interfering with the brain's use of
oxygen and causing damage to brain cells. ROA 1:1644-45. But, once
again, this does not contradict the position taken by Fox's experts who had
been treating him for months and - unlike Dr. Rosenfield - had actually
spoken to him. The trial court's acceptance of uncontroverted evidence as
suggestive that the jury has erred can hardly be an abuse of discretion.
B. Fox presented evidence that, even if subjective, is still evidence.
Valero's primary complaint appears to be, not that there is no
evidence to support Fox's position and the trial court's decision, but that
Fox's symptoms are, at least to some degree, subjective and are not easily
verifiable by objective means. This does not mean, however, that they are
not evidence. See Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.
1977) (expert testimony based upon case history given by patient, physical
examination, and x-rays, reciting opinion "consistent with" patient's
complained of symptoms was admissible). Nor does it mean that the
19 expert opinions based upon those symptoms are, of necessity, unreliable. 2
Id. Evidence that Valero discounts is, nonetheless, evidence. It is not
Valero's job to say what the trial court found convincing; it is the trial
court's job.
The combination of testimony from multiple retained and non-
retained expert witnesses, as cited by the Court, is more than sufficient to
justify its Order. See In re Anna C. Smith, 332 S.W.3d 704 (Tex. App.-
Texarkana 2011, orig. proceeding) (finding that order reciting witness
testimony in general terms was sufficient to meet requirements of In re
Columbia Med. Ctr.). It is not sufficient that Valero argue what the jury was
"free to find." It must attack-entirely-what the Court did find.
Provided that the basis for the Court's Order is not contradicted by the
record-and it is not-there is no basis for the Order to be re-visited. Cf In
re Toyota Motor Sales, 407 S.W.3d 746, 761 (Tex. 2014). To the extent that it
was Judge Griffin's job to say, if asked, what he found convincing, he did
so. To the extent that it was Judge Grady's job to do so, again, Valero never
asked.
2 Moreover, reliability of evidence is, in general, a matter for the trial court to decide. Trial courts routinely opine on the reliability of evidence in order to admit or exclude it. Indeed, it is a core part of the trial court's gatekeeping function. See, e.g., E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). 20 Responsive Issue Four
Evidence showed that Fox suffered physical Injury from chemical exposure that is more than just mental anguish and that demonstrated both specific and general causation.
A. Valero mischaracterizes and minimizes the nature of Fox's injury in an effort to make its point.
Valero next argues that the trial court abused its discretion by
granting Fox a new trial because his evidence is legally insufficient to show
damages. In particular, it argues that he cannot recover damages for the
injury done to him because he must show a serious physical injury. In
order to minimize Fox's claim, Valero mischaracterizes his claim as one for
"mental anguish." This is not what Fox's claim is about. Fox's claim is for
Post':'Traumatic Stress Disorder - a physical condition with psychological
and behavioral manifestation.
As Dr. Axelrad testified, PTSD is a form of physical brain injury
resulting from the release of excess stress chemicals. ROA 1:1266. When
under stress, the body releases cytokines that promote an inflammatory
response. ROA 1:1205. PTSD is not merely anxiety, it is the behavioral
manifestation of a very real physical injury. Valero's discussion of Fox's
damage as mere "mental anguish" entirely mischaracterizes his injury and
21 mischaracterizes his case. Fox presented uncontradicted expert testimony
that PTSD results from a serious physical brain injury. Valero never took
issue with this testimony in the trial court. It still does not take issue, now.
Furthermore, Dr. Rosenfield testified as to the very physical effects of
H 2S on the brain. Dr. Rosenfield confirmed that breathing in H 2S can
interfere with the enzyme cytochrome oxidase, an enzyme necessary for
brain cells' use of oxygen. ROA 1:1644-45. He also conceded that
interference with oxygen use can cause damage to the brain. Id. It was not
an abuse of discretion for the trial court to take Valero's own witness's
testimony at face value.
B. Valero never actually argues that Fox failed to show general causation.
Finally, Valero complains concerning general and specific causation.
Valero first correctly notes that general causation asks whether a particular
substance is capable of causing injury or a condition in the general
population. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,
602 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). Valero then argues
that there is no evidence of the amount of toxin to which Fox was exposed.
This, of course, is not a question regarding general causation, but one
22 regarding specific causation - toxins causing damage, not in the general
population, but in a specific individual.
In any case, Valero's own expert witness, Dr. Rosenfield,
acknowledged that Fox was exposed to HzS and that it is a neurotoxin.
ROA 1:1617. He also confirmed that it can cause a number of other
symptoms, including headache, dizziness, weakness, exhaustion,
irritability, and insomnia. ROA 1:1621-22. These are some of the very
symptoms observed in Fox.
Moreover, as Dr. Axelrad testified, at least a portion of Fox's
damages stem from PTSD. PTSD is not caused by HzS exposure but by an
extreme stress reaction that causes a release of cytokines within the brain.
ROA 1:1205. Exposure is part of the equation, but it is not all of it.
Characterizing Fox's claim as entirely a toxic tort claim again
mischaracterizes it.
C. Fox presented evidence of specific exposure to particular toxins.
Unlike the case law cited by Valero, which presents toxic exposure
cases that developed over many, many years of exposure to toxic products
from many different defendants, Fox alleges a single, discreet incident
where there is only one defendant. See Borg-Warner Corp. v. Flores, 232 23 S.W.3d 765, 773 (Tex. 2007). Flores considered a suit against a particular
maker of asbestos-containing brake pads and a plaintiff's allegations that
he had been exposed to these brake pads, as well as brake pads from many
other manufacturers and asbestos from other sources. A major concern of
Flores is that evidence be defendant-specific, so that a defendant that causes
only minimal exposure cannot be said to have caused an occupational
disease.
In contrast, there is no other defendant in Fox's suit but Valero.
There is no other evidence showing the source for the toxins to which he
was exposed, and there is causal evidence showing that he did not
demonstrate his particular symptoms before exposure but did so after
exposure. The trial court did not abuse its discretion by declining to apply
a precedent that is, factually, worlds apart from the allegations and central
facts of Fox's suit.
CONCLUSION
Mandamus is not a remedy for every trial court error. It exists for use
in cases of manifest and urgent necessity, where a trial court has taken
action that is unguided by any legal principle or rule. That is not the
situation here. Two trial judges viewed the evidence differently from the 24 JUry. The first explained the reasons behind granting a new trial in an
entirely sufficient order. The second gave no explanation, nor was she
requested to give any such explanation. But even if this did not add up to
a failure of Valero's mandamus record, Valero simply cannot justify
mandamus in this case. The trial court's action is not egregious. It is not
unguided. It is simply different from what Valero would have. It is not an
abuse of discretion. Mandamus is completely inappropriate given both the
state of the record and the evidence adduced. It should be, indeed must be,
denied.
PRAYER
For the foregoing reasons, Real Parties in Interest Vernon Fox and
Mikki Fox, respectfully request that Valero Refining Texas, LLC's Petition
for Writ of Mandamus be denied.
25 Respectfully submitted,
SIMPSON, P.C.
/s/ Jain G. Simpson
lain G. Simpson State Bar No. 00791667 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 (281) 989-0742 (281) 596-6960 - fax iain@simpsonpc.com
ApPELLATE COUNSEL FOR VERNON Fox AND MIKKI Fox
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing response is computer-generated and that those portions required to be counted by Rule 9.4(i)(1), Texas Rules of Appellate Procedure, contain 6,420 words, according to the word- count function of the application used to create it. The response is printed in 14-point typeface, except for the footnotes, which are in 12-point typeface.
/s/ Jain G. Simpson
lain G. Simpson
26 CERTIFICATE OF SERVICE
I hereby certify that, on August 27, 2015, I served a true and correct copy of the foregoing Response to Petition for Mandamus via electronic service, certified mail, facsimile, or hand delivery on the following:
David W. Burns Tekell, Book, Allen & Morris, LLP 1221 McKinney, Suite 4300 Houston, Texas 77010 713-222-9542-telephone 713-655-7727-facsimile
James F. Bennett Megan Heinsz Dowd Bennett, LLP 7733 Forsyth Boulevard St. Louis, Missouri 63105 314-889-7300-telephone 314-863-2111-facsimile
Richard P. Hogan, Jr. Jennifer Bruch Hogan James C. Marrow Hogan & Hogan Pennzoil Place 711 Louisiana, Suite 500 Houston, Texas 77002 713-222-8800-telephone 713-222-8810-facsimile
27 Alex M. Miller The Valero Companies One Valero Way San Antonio, Texas 78249 210-345-2857-telephone 210-345-4567-facsimile
COUNSEL FOR VALERO REFINING - TEXAS, L.P.
/s/ lain G. Simpson
lain G. Simpson
28 TAB B 3 CAUSE NO, 12CV1541 2 March 13,2015 Page
) 3 Court Reporter's Certification Page 52 VERNON FOX AND MIKKI FOX ) 212TH DISTRICT COURT ) 4 ) VS, ) OF 5 ) ) NUSTAR LOGISTICS, LP, AND ) 6 VALERO ENERGY CORPORATION ) GALVESTON COUNTY, TEXAS 7 8 9 10 10 11 11 12
13 MOTION TO RECONSIDER 12 14 13 15 14 16 15 17 16 18
19 17 20 On March 13 I 2015, the foll owi og proceedi ngs came 18 21 on to be heard in the above-entitled and numbered cause 19 22 before the Honorable Patricia Grady, Judge presiding, 20 23 held in Galveston, Galveston County, Texas; 21 24 22 25 Proceedings reported by machine shorthand, 23 24 25 2 4 2 FOR THE PLAINTIFFS: 1 THE COURT: The Court calls 12-CV-1541, SBOT: 20092000 2 Vernon Fox and Mikki Fox versus Nustar Logistics, LP, 4 3 and Valero Energy Corporation. The Law Firm of Alton C. Todd 5 312 S. Friendswood Drive 4 The Court has before it today defendant Friendswood, Texas 77546 6 281.992.8633 5 Valero Refining Texas, LP's motion to reconsider the alton@ a ctlaw .co m 6 order granting motion for new trial of plaintiffs Vernon 7 FOR THE DEFENDANT, VALERO REFINING-TEXAS, LP: 7 Fox and Mikki Fox. 8 DAVID W. BURNS 8 Please state your names for the record and 9 SBOT: 00785735 9 who you represent. 10 KENNETH TEKELL, SR. 10 MR. TODD: Alton Todd on behalf of the SBOT: 19764000 11 11 plaintiffs, the Fox -- Tekell, Book, Allen & Morris, LLP 12 MR. BENNETT: Jim Bennett for Valero. 12 1221 McKinney SUite 4300 13 MR. BURNS: David Burns for Valero. 13 Houston, Texas 77010 713.222.9542 14 MR. TEKELL: Kenneth Tekell, Sr., for 14 dburns@tekellbook.com 15 Valero.
15 16 THE COURT: Sir, you may proceed. JAMES F. BENNETT 16 SBOT: 46826 17 MR. BENNETT: Thank you, Your Honor. 18 We're here before you on a motion to 17 Dowd Bennett, LLP 7733 Forsyth Boulevard 19 reconsider, as the Court is aware from having read the 18 Suite 1900 St. Louis, Missouri 63105 20 pa pe rs. 19 314.889.7302 21 This is a case that was tried over a jben n ett@dowdbennetLcom 20 22 two-week period with a verdict on December 11, 2014. We 21 23 had 16 Witnesses presented to this jury and over 22 23 24 180 exhibits introduced. At the end of this trial, a 24 25 25 12-person jury -- and we sat an alternate. So there 1 of 23 sheets Page 1 to 4 of 52 05/19/201511:46:03 AM 5 7 1 were 13 jurors here for that entire time. It was a 12-0 1 he was, came up with a zero reading of any harmful 2 verdict in favor of Valero on the issue of causation and 2 chemicals and no fumes. He personally observed the 3 damages under the question 2, as well as on all of the 3 absence of any fumes. And by 6:30 in the morning, the 4 other questions presented to the jury, including gross 4 area was totally safe, totally secure. 5 negligence, a consortium claim and punitive damages, 5 Mr. Fox is a 32-year employee of BP, the 6 which weren't reached because of the other verdicts. 6 next door refinery, and he left his office at 5:45, 7 Judgment was entered on that jury verdict 7 testified that on his initial drive down to a place he 8 by Judge Griffin, and a motion for new trial was filed 8 was going for work, he had no issues. He called back -- 9 and argued, as well. And on December 30th, that new 9 and this is undisputed in the records. He called back 10 trial motion was granted. So we are in front of Your 10 at 6:15 in the morning and said everythjng is okay. He 11 Honor, because as the Court is aware, that's essentially 11 left at 6: 30 in the morning to drive back by and came 12 the last day and the last judicial act of Judge Griffin 12 back by this tank when the sun had come up at 6:30 in 13 before he left the bench. 13 the morning, which is after we had already set up our 14 The motion for new trial -- I think it is 14 fence monitors showing that there were no fumes, no 15 important to focus in on what is not at issue. What is 15 vapor cloud, no nothing. 16 not at issue is any evidentiary ruling against the 16 That evidence is, in our view, totally 17 plaintiff or in favor of the defendant. Every piece of 17 undisputed, and the jury -- it was exactly the evidence 18 evidence that the plaintiff wanted to present came into 18 that the jury asked to have read back to it right before 19 evidence. There is no claim of instructional error. 19 it rendered its verdict. And What we proved through 20 All of the instructions that were given were as 20 this is there was simply no exposure. Mr. Fox had an 21 requested by the plaintiff. There's no claim that I 21 alarm in his car that didn't go off for fumes. He said 22 argued anything improperly during the trial or that we 22 everything was okay. He drove around a security 23 did anything prejudicial. It is a pure sufficiency 23 barricade that was put up later than when there were any 24 challenge, and the ruling granting the new trial was 24 sort of issues with fumes and he had no evidence of any 25 wrong under all the legal standards set forth in our 25 oil on his person or his tank -- or his truck. 6 8 1 opening brief, as well as our reply brief. Because the 1 And so what we proved in the course of the 2 Court was not present at the trial, I would like to 2 trial is that he simply wasn't exposed to any harmful 3 review a few of the key facts, understanding that the 3 activity at all. And then the medicine [sic] confirmed 4 Court has read all of the papers. 4 that. He took a urine test and a blood test that very 5 The issue happened -- or the events giving 5 day before the end of his shift. It came back all 6 rise to the case happened on January 12, 2011, when the 6 within normal limits. He went to see a doctor that day 7 Texas City refinery operated by Valero had accrued 7 at BP who told him that he was within normal limits, 8 overfill very, very early in the morning and about 278 8 based on the lab results that came back. He went to a 9 barrels were released -- the spill happened 5 to 9 dermatologist that said any skin issues he had wasn't 10 9 minutes -- and, of course, I think the Court knows all 10 caused by any exposure. He went home that day and 11 the facts are taken in favor of the verdict at this 11 talked to his wife and interacted with her. And she sat 12 point in time. The spill was over by 5:24, but it's 12 in the chair, looked at the jury and said he behaved 13 undisputed it was over by 5: 35. The temperature was 13 totally normal that entire day. 14 30 degrees, and so there wasn't fumes coming up off the 14 And -- so what the jury was confronted with 15 oil and there wasn't any issue with any sort of vapor 15 was what we view as extremely strong and almost 16 cloud. 16 overwhelming evidence that Mr. Fox had zero exposure 17 So the bottom line is that Valero had a 17 whatsoever to any sort of harmful chemicals. He 18 crew tank overfill that was over by 5: 30 in the morning; 18 couldn't have been there at the time there were any 19 and we know for a fact at the scene of the overfill, 19 vapors. There is no scientific support because we had 20 that there were no vapors and no fumes because every 20 monitors set up at the time he was there. He was 21 person there was wearing their H25 monitor. Our 21 wearing a monitor on his person, and his urine test came 22 corporate rep, Mr. Allison, who sat through the whole 22 back. He behaved normally afterwards. And his doctors 23 trial, who was the fire chief of Valero is here today. 23 all said that there was no problems associated with any 24 By 6:00 a.m., he was on the scene with his monitors and 24 sort of exposure. 25 he monitored the exact area that Mr. Fox later claimed 25 A 32-year employee of BP, then 9 months 05/19/201511 :46:03 AM Page 5 to 8 of 52 2 of 23 sheets 9 11 1 later he starts claiming that he has psychological 1 criminal violation to misrepresent things to the Coast 2 problems and mental problems. Not until July -- 2 Guard, I understand I signed this certification, but 3 7 months later does he say he is having headaches. He 3 understand that I misrepresented my mental state. And 4 goes to see a neurologist. Undisputed. The neurologist 4 then he says but I did tell the truth about how many 5 says there's no issue with this exposure causing your 5 times I was out on my boat during those 9 months. 6 headaches because it was progressive. Dr. Eberle up in 6 So we leave that day at 5:00 after him 7 Houston said that as well, and it confirmed the 7 admitting that he violated Federal law, but affirming he 8 dermatologist report to the same. And so what the jury 8 was out on his boat. He comes back the next morning and 9 was confronted with is facts that show he couldn't have 9 tells the jury actually, I did lie on the Coast Guard 10 been exposed, multiple forms of monitoring that showed 10 application, I wasn't out on that boat. And so the 11 he wasn't exposed and doctors who uniformly say he 11 jury -- then on recross, he looked the jury right in the 12 wasn't exposed and harmed in any way. 12 eye and said I tell you I did not tell the truth to you 13 Then the jury got to see that Vernon Fox 13 yesterday. I mean, he was confronted with a prior 14 actually lied about his conditions repeatedly. Mr. Fox 14 inconsistent statement made under oath in his 15 was on the witness stand on one afternoon when I was 15 application, but then confessed to the jury, in the 16 cross-examining him -- 16 middle of the trial, that he had not told them the truth 17 THE COURT: Hold one second. 17 the prior day. 18 (Discussion off the record) 18 THE COURT: Yes, sir. I've read all of 19 THE COURT: You may proceed. 19 that. 20 MR. BENNETT: Thank you, Your Honor. 20 MR. BENNETT: Okay. 21 And so what happened and unfolded at the 21 THE COURT: I'd like to see if we can move 22 trial was that Mr. Fox claimed he had psychological 22 on to your legal argument. 23 issues, all based on his own description of the 23 MR. BENNETT: Absolutely, Your Honor. 24 occurrences and his reporting of symptoms to his 24 I think the Court is aware that since this 25 doctors, either ones who were hired as part of this 25 is interlocutory, the Court has the authority to set 10 12 1 litigation or ones he was seeing beforehand. But what 1 aside a prior ruling at any time because of the timing 2 the jury heard was that he misrepresented his symptoms 2 of this ruling. We have to present it to you because 3 repeatedly. He signed in September of 2012,9 months 3 the -- by a stay of the prior judge was the day that he 4 after this incident, a United States Coast Guard 4 entered this order. Mr. Fox was required to show that 5 application as Defense Exhibit 1. And it came in and 5 this was against the weight and preponderance of the 6 the jury looked at it. And he signed a certification 6 eVidence. If you look at the core of our argument, it 7 under criminal penalty that everything in it was 7 is two-fold. The first is that the evidence must be 8 100 percent accurate. 8 viewed in the light most favorable to the verdict. 9 A couple of things are significant about 9 THE COURT: Are you referring to the brief 10 that. The first is that he checked a box that he had no 10 that you filed, the motion? 11 anXiety and no depression and no mental disorder and 11 MR. BENNETT: Yes, Your Honor. 12 that he was able to do everything that a sea captain 12 THE COURT: What page are you on? 13 would do, which is totally inconsistent with his claimed 13 MR. BENNETT: Yes. 13, Your Honor. 14 symptoms at the trial. In addition, he had to go see 14 We have a series of legal standards that 15 his family practice physician to get a certification 15 are set out on pages 13 that set out almost all of these 16 that he was fit for service. Dr. Nguyen, who had been 16 key legal points. And so since you've read those, I 17 his doctor for 15 years, signed on September 4, 2012, 17 won't belabor them. But on pages 13, 14 and 15, we 18 also under criminal penalty, a certification that he was 18 explain that the jury is the sole judge of credibility; 19 fit and had no mental impairments at all. In addition, 19 the expert testimony is not binding on the jury, even if 20 Mr. Fox attested to the Coast Guard that during the 20 it isn't contradicted, but here it was subject to 21 9 months after this alleged incident, he had been out on 21 attack. The jury is not required under the Schott case 22 his boat in the Bay of Galveston in the Gulf of Mexico 22 versus Knight, which we view as the most factually 23 captaining a 23-footer between 6 and 12 times every 23 analogous case, to award damages just based on what an 24 month. And so he's confronted with this at the trial. 24 expert says because as that Court holds in headnote 3, 25 He then tells the jury that yes, I know that it was a 25 the jury is the sole judge of credibility and is free to 3 of 23 sheets Page 9 to 12 of 52 05/19/2015 11 :46:03 AM 13 15 1 disbelieve expert witnesses. And the real key to this 1 actually simply made conclusory statements that there 2 is that in that case, they held that if the plaintiff's 2 was causation. He had no actual facts. And we cite 3 credibility was attacked and the plaintiff gave the 3 cases like the Burrough (phonetic) case in footnote 144 4 information to the expert in order to have the expert 4 of our brief that that's not enough. But most 5 render their opinion, attacks on the credibility of the 5 critically, the jury heard evidence that if the evidence 6 plaintiff mean that the jury doesn't have to believe the 6 showed that Mr. Fox wasn't exposed to any toxin above a 7 expert. And Schott flat-out says that because, as they 7 background level, he would have to reformulate his 8 say, the expert was based on plaintiff's objective 8 opinion. And so the jury was entitled to do that, as 9 reports to him, the plaintiff's credibility was key in 9 well. 10 this case and the jury had evidence probative on that 10 We have presented argument that the 11 point; therefore, quote, it was the jury's prerogative 11 foreseeability prong wasn't met, as well. 5 to 15 12 to disbelieve his claims about the continuing 12 seconds is not going to cause harm to a 32-year veteran 13 psychological effect. And so under that legal standard 13 of an oil refinery. We have explained -- I think the 14 and the standards set out at pages 13 through 15 of our 14 Court's familiar with Texas law that says there can be 15 brief, where the injuries are subjective -- which these 15 no recovery for mental angUish without serious bodily 16 admittedly are -- and where they're totally based on the 16 injury. There's clearly no serious bodily injury here 17 plaintiff, the jury is free to disregard all of that 17 whatsoever. 18 evidence. 18 THE COURT: Let me just stop you right 19 And we presented evidence -- I think I 19 there, and I know that we're going to go out of order. 20 recounted it and the Court has said that the Court has 20 This has piqued my interest, what they're 21 read it -- that showed that he admitted he wasn't 21 saying here. Can you just in a nutshell give me your 22 depressed, that there was extremely strong evidence that 22 response to that? 23 he hadn't told the truth to his experts and to his 23 MR. TODD: Right. 24 doctors because he worked at BP for 2 more years, made 24 The response is this, Your Honor: We need 25 more money than he'd ever made, contradicted himself to 25 to be defining for the Court the standard for the Court 14 16 1 the lawyer, grossly exaggerated his symptoms. Even the 1 at this point in time. 2 report introduced into evidence by the plaintiff said 2 THE COURT: Okay. Let's skip that a 3 that he had an unusual number of symptoms that raise 3 minute, and let's respond to what he just said about 4 suggestions of exaggeration. And so we think that the 4 negligence and serious bodily injury. 5 trial court erred in granting a new trial under these 5 MR. TODD: Okay. There's evidence before 6 circumstances because the jury had ample evidence and we 6 this jury, number one, that he was in the area. Their 7 viewed it as set forth in our motion for directed 7 own doctor said -- I can't remember her name -- that he 8 verdict that they were actually required to conclude 8 definitely had a major depressive disorder from this 9 that Valero didn't cause any of these issues. 9 event. He never had a major depressive disorder before, 10 The verdict form allowed the jury to rule 10 never had depression before, never been to a 11 either that the plaintiff had no injuries at all, which 11 psychiatrist before. And he was in the area. 12 was well within the range of the eVidence, or that 12 So I guess what I'm wondering is -- well, 13 Valero hadn't caused any of them. And in terms of 13 I'll get to my argument -- 14 emphasizing the record evidence there, he presented his 14 THE COURT: My question is, does there have 15 treating psychologist, who testified under oath that he 15 to be serious bodily injury in order to find mental 16 couldn't say whether we caused him any of his mental 16 injury? 17 problems or whether his work at BP did where he admitted 17 MR. TODD: With PTSD at the forefront 18 he had been exposed to benzene over the years. 18 today, it's my position no. There is some law that 19 In addition, the new trial motion relied 19 indicates physical injury, not necessarily serious 20 heaVily on the testimony of an expert named Pollock, who 20 physically or a psychological condition. When you start 21 was not called to testify, but whose deposition was 21 defining pain and suffering and mental anguish, that's a 22 read. I make two points on that. First off, 22 different thing. But otherwise, the Court would be 23 Mr. Pollock is based solely on what Mr. Fox told him, 23 holding that in the absence -- let's say you witnessed a 24 and his credibility was under attack. Secondly, as we 24 murder and you developed PTSD. You might not have a 25 set forth in our brief on the section on Mr. Pollock, he 25 physical injury. You can get a physical injury actually 05/19/201511:46:03 AM Page 13 to 16 of 52 4 of 23 sheets 17 19 1 from the condition itself, as the doctors did testify. 1 THE COURT: We'll give you a chance. 2 Whenever we have major depressive disorder, PTSD, we are 2 Everyone is going to have enough time to talk this 3 emitting enzymes into our brain that in and of 3 morning. 4 themselves cause physical injury to the brain. So there 4 MR. BENNETT: Thank you, Your Honor. 5 is physical injury, whether it be from the event itself 5 So I think that -- I believe that covers 6 or from the condition itself. And all the doctors agree 6 the issue of the -- without serious bodily injury, we 7 that in the brain, when we're emitting these enzymes 7 believe that the jury was very much entitled to find 8 that we need to make us happy, make us sad, whatever, 8 that Valero was not a substantial factor. And it's 9 that get off balance when these conditions occur, that 9 really important to explain that nobody tied Mr. Fox's 10 causes brain injury. 10 depression to conduct of Valero in any way that would 11 THE COURT: Okay. What do you have to say 11 require the jury to accept that. No expert said oh, I 12 to that? 12 can look at this and say this depression is caused by 13 MR. BENNETT: I have to say to that that 13 Valero. He testified that he was -- and his experts 14 that is 100 percent inconsistent with the Texas Supreme 14 testified that he was worried about a spot on his brain. 15 Court in the Temple-Inland case that we cite. That page 15 He testified that he had stress at BP, he had benzene 16 is page 39 and 40 of the brief. In that case, the 16 exposure at BP. He said that he had been very worried 17 plaintiff acknowledged being exposed to asbestos. And 17 by the fact that 15 of his co-workers had died in that 18 everybody agreed that the plaintiff was exposed to 18 explosion. There were a lot of things. And 19 asbestos and that the Court said -- this is at the 19 Mr. Pollock, who was his treating psychologist, was flat 20 bottom of 39. It has been established for over a 20 out asked can you say his mental problems were caused by 21 century that a person placed in peril by another, but 21 Valero and not BP to a reasonable degree of medical 22 who escapes without injury, may not recover damages 22 certainty, and he said no to that. 23 simply because he has been placed in a perilous damage 23 And then finally, Your Honor, I think that 24 [sic], nor is mere fright the subject of damage. 24 it has to be undisputed this order doesn't meet the 25 Here -- and what they go on to say is there has to be 25 standard for a new trial on the issues of gross 18 20 1 serious bodily injury is what the Court says at page 92 1 negligence. There's not even a mention of it there. 2 of that opinion. Physical injury is ordinarily 2 That has nothing to do with whether he had PTSD or 3 necessary for the recovery of mental anguish damages, 3 negligence or -- I mean -- or depression. There's no 4 except within exceptions that aren't here. And what the 4 finding on any of the particular elements of damages in 5 court goes on to say, which has full application here, 5 the instructions that the jury gave us zero on. 6 is that most Americans are daily subjected to toxic 6 THE COURT: Let me stop you right there. 7 substances in the air they breathe. Suits for mental 7 On Odyssey, I could not find anything 8 anguish damages caused by exposure not resulting in 8 except an unofficial copy of the order signed by Judge 9 disease would clog the courts, compete with other suits. 9 Griffin. I don't know if the parties have one, but -- 10 And so even if under the Texas Supreme Court rule they 10 does that say "unofficial"? That says unofficial. 11 suffer genuine distress, which I suppose would trigger 11 MR. BENNETT: Yes. I think this is the 12 all this brain activity that Mr. Todd is talking about 12 version that he signed. I haven't seen an official 13 over that exposure, it's not enough. In here nobody 13 version. 14 said he had any demonstrable medical injury whatsoever. 14 THE COURT: I just wanted to make sure that 15 And stress or anxiety isn't enough. And if stress -- 15 I had the correct one. 16 and the jury was certainly entitled to find that there 16 MR. TODD: That's what I assumed. 17 was no stress or anxiety or PTSD in this case that 17 THE COURT: Thank you. 18 caused those neurotransmitters. So if I had to say what 18 MR. BENNETT: So if you go through that, 19 case do I think is most on point for us on that, it 19 Your Honor, you can see that there is no discussion of 20 would be the Temple-Inland case. 20 the loss of consortium claim of Mikki Fox. There's no 21 THE COURT: Do you have any controverting 21 description of how there could be causation in this case 22 case law to the Temple? 22 and how -- I mean, there's a finding, I guess, that the 23 MR. TODD: Not anything other than what we 23 jury should have found depression, but there's no facts 24 may have cited and -- but we'll have reasoning on why 24 that would show how that could be tied to Valero. And 25 we're there on that point too, Judge. 25 so the order is facially deficient, and there's no 5 of 23 sheets Page 17 to 20 of 52 05/19/201511:46:03 AM 21 23 1 finding about each element of damages on why those zeros 1 there are -- and this goes to every element of the 2 for each one aren't right. And, of course, the words 2 case -- is that there is no finding of any competent 3 "gross negligence" aren't even mentioned in that -- 3 evidence or citation of evidence that would establish 4 THE COURT: Let's just go a little slower, 4 that we failed to prove or that the jury was committing 5 please, so I can take some notes on how this order, in 5 error when it found no causation that the -- any 6 your opinion, is deficient. 6 depression by Mr. Fox was caused by Valero. And you can 7 MR. BENNETT: The first way that the order 7 read the two pages of the order, Your Honor, and see 8 is deficient, Your Honor, is that there is zero mention 8 that there's a description by Judge Griffin signed in 9 of how or why there's a new trial on gross negligence. 9 the proposed order, as I think everyone agrees, where it 10 Gross negligence does not turn in any way on any of the 10 says that, okay, there was evidence of depression and 11 matters that are set forth in the order. Gross 11 major depressive disorder. And the only statement is 12 negligence is a decision for the jury based on the 12 that this resulted from the defendant's negligence. 13 conduct of Valero. And the only thing the order 13 There is no citation or description of any evidence that 14 discusses is Mr. Fox's injury, one. 14 shows how Judge Griffin made the leap from finding that 15 THE COURT: Before you go to your second 15 he was depressed to causing it, to it being caused by 16 point, I want to give Mr. Todd an opportunity to respond 16 Valero, none whatsoever. 17 to that. 17 THE COURT: And you're saying there needs 18 MR. TODD: Sure. 18 to be specificity? 19 If a case is granted a new trial on any 19 MR. BENNETT: There does, Your Honor, under 20 point, it grants the entire trial. The order does not 20 that Pool versus Ford Motor Company case at 21 have to address every potential point in the case. And 21 715 S.W.2nd 635. The Court should state in what regard 22 that's -- he can cite to no Texas Supreme Court case 22 the contrary evidence greatly outweighs the evidence in 23 that requires what he's saying in a new trial order. 23 support of the verdict. And that is a requirement under 24 All the court had to do was to grant as to one thing, 24 that case, as well as in re Toyota Motor Sales that we 25 one thing alone, and it's a new trial as to everything. 25 cite, which requires the Court to identify legally 22 24 1 And I think counsel would agree with that. 1 appropriate reasons and be specific enough to indicate 2 MR. BENNETT: We cite -- 2 that the Court looked at that evidence. And there's no 3 THE COURT: Do you agree with that? 3 description of any evidence whatsoever of tying his 4 MR. BENNETT: No, Your Honor. We cite the 4 injuries to any causation. So that's number two. 5 Pool v. Ford Motor case that says that the Court has to 5 THE COURT: Mr. Todd disagrees with the 6 state with -- in what regard the contrary evidence 6 Toyota Motor Sales and your response brief, as far as 7 greatly outweighs the evidence in support of the 7 how it's applied here. 8 verdict. And we should be entitled to a judgment on 8 MR. TODD: Right. And Pool was -- doesn't 9 that count because that jury rendered that verdict. It 9 even apply to this case because that's not a new trial 10 wasn't attacked in a post-trial motion and the judge 10 case. Toyota does, but -- 11 didn't make any findings to set it aside. 11 THE COURT: Okay. 12 MR. TODD: May I address that? 12 MR. BENNETT: I have two more points, but I 13 THE COURT: Please. 13 don't want to -- did you want him to respond fully? 14 MR. TODD: He didn't answer my question 14 THE COURT: Yes, go ahead, please. 15 about if the Court grants a new trial on any point, does 15 MR. TODD: On that point alone, I guess I 16 it grant it as to the entire trial. 16 need to actually just start going to the case law. 17 THE COURT: I'm going to give you guys a 17 THE COURT: Is this in yourreply? 18 chance to brief that because obViously you're not going 18 MR. TODD: It is in the reply, but also I 19 to agree. So from his lack of response, that tells me 19 think the Court probably has a copy of the Toyota case. 20 he's not going to agree with you. So if you can provide 20 But-- 21 proof to me, I would certainly appreciate that. 21 THE COURT: I do not have a copy of the 22 MR. TODD: Sure. 22 Toyota case. If lawyers ever want to give me cases, I 23 THE COURT: So we've gone through Point 23 will certainly always take them and read them. Of 24 No. 1. 24 course I follow up on Westlaw for any negative 25 MR. BENNETT: Point No.2 would be that 25 treatment. 05/19/201511:46:03 AM Page 21 to 24 of 52 6 of 23 sheets 25 27 1 MR. TODD: This is the Toyota case, Judge. 1 trial is legally appropriate, parentheses, such as 2 And I put a couple of tags on there on things that seem 2 well-defined legal standard on a defect that probably 3 to me to be significant as to -- because now we're 3 resulted in improper verdict, and, two, is specific 4 getting into the content of the order and what does the 4 enough to indicate that the trial court did not simply 5 order require. Before getting to the Toyota case, 5 parrot a pro forma template, but rather derived the 6 there's the in re United Scaffolding case, which was 6 articulated reasons from the particular facts and 7 decided by the Supreme Court in 2012 that references 7 circumstances of the case at hand. 8 back to the in re Columbia case, which was the Supreme 8 THE COURT: One second. That's exactly 9 Court case that first decided that they required more in 9 what you have alleged, that it was a parrot of a pro 10 an order than just in the interest of justice. 10 forma template. So tell me how it would not have been 11 And this is now the in re United 11 that, in your opinion. I mean, you're arguing that it 12 Scaffolding case, the Supreme Court stating: In in re 12 is. Can you give me an example of how it would not be? 13 Columbia, we reiterated the considerable discretion 13 MR. BENNETI: Well, there's two points in 14 afforded trial judges in ordering new trials. That rule 14 response to this. The first is, of course, that is 15 has both juris prudential justifications, parentheses, 15 discussion of appellate review. This is interlocutory. 16 trial judges actually attend the trial and are best 16 And as we cited in our reply brief we filed yesterday, 17 suited to evaluate its deficiencies and practical 17 you actually have total plenary authority under the Rush 18 justifications, parentheses, most trial judges are 18 v. Barrios case to decide this without regard to this 19 understandably reluctant after presiding over a full 19 requirement. But on the specific question that 20 trial to do it all over again. Therefore, in 20 Your Honor has asked, the Toyota case requires that the 21 considering how detailed a trial court's new trial order 21 reasoning be specific enough that they did not parrot a 22 must be, as well as what level of review it is subject 22 pro forma template. The order is -- you know, it's 23 to, we must both afford jury verdicts appropriate regard 23 marked unofficial because it was -- this is as submitted 24 and respect trial court's significant discretion in 24 by the plaintiff. And what's deficient on the causation 25 these matters. 25 element is it is pro forma for the court to say the 26 28 1 Now, in the in re Toyota case -- well, 1 trial -- the prior court to say at trial, plaintiffs 2 first, before we get to that, there is a case out of the 2 presented evidence from these experts about depression, 3 14th that was decided August of this last year, which 3 and then it says resulted from defendant's negligence. 4 was in re United Services Auto Association, 4 There is zero specificity on how the evidence could show 5 446 S.W.3rd 162. In it, it says that -- now it's 5 that we caused this depression, and there's large 6 referring back to Toyota. The court held that when a 6 amounts of contradictory evidence on that point. So it 7 trial court enters an order for a new trial that 7 is not specific and it is pro forma and it is conclusory 8 facially complies with the requirements of Columbia 8 when the court just simply identifies the depression and 9 Medical Center and United Scaffolding, an appellate 9 then says that resulted from our negligence. And that's 10 court may conduct a merits-based review of the reasons 10 the specific deficiency on the causation element that we 11 given. Then in the Toyota case, where it actually 11 are relying on on that. 12 states what the rule is for the order, they enter into 12 MR. TODD: If I may, also, Your Honor. 13 that in concluding that it did not -- we noted that 13 THE COURT: Please. 14 Columbia's purpose, quote, would be satisfied so long as 14 MR. TODD: There's a couple of things at 15 the order provides a cogent and reasonably specific 15 play here. There's really -- we're looking at three 16 explanation of the reasoning that led the Court to 16 different standards, and they kind start getting blended 17 conclude that a new trial was warranted. We 17 together here. One is the standard at the court of 18 acknowledged that Columbia focused not on the length or 18 appeals where they sit and look at a cold record. The 19 detail of the reasons the trial court gives, but on how 19 second is where you have a trial judge, what we have 20 well those reasons serve the general purpose of assuring 20 here, Judge Griffin, who actually sat through 2 weeks 21 the parties that the jury's decision was set aside only 21 and listened to the testimony along with the jury and 22 after careful thought and for valid reasons. 22 it's granted a new trial. Then we have, Your Honor, a 23 We held that a trial court does not abuse 23 third standard, where we're still at the trial court 24 its discretion, so long as its stated reason for 24 level, but a judge who didn't have the benefit of having 25 granting a new trial, one, is a reason for which a new 25 heard the evidence or seen the witnesses testify or look 7 of 23 sheets Page 25 to 28 of 52 05/19/201511:46:03 AM 29 31 1 at the documents. 1 that both parties have cited to look at that causation 2 And one of the appellate decisions in a 2 point because he did not meet the specificity 3 dissenting opinion -- I can't remember if it was Buzbee 3 requirement of Toyota, and they cite this case that says 4 or who it was, a different Buzbee -- on appeal, that 4 that they have to articulate its reasons on the reason 5 what he said, we need to look to the Fifth Circuit, as 5 for overturning it. And that order says nothing about 6 far as following guidance where you give respect to what 6 causation and the facts. So you are without any 7 the jury does, but also to the trial court. And we 7 gUidance from what Judge Griffin thought on that, even 8 don't have a standard yet developed by the Texas Supreme 8 if it were binding, which we don't think it is. 9 Court as to how a trial court, when it's looking at the 9 MR. TODD: If I may. 10 evidence on determining whether a new trial is 10 If we look at the Toyota decision, 11 warranted, what that standard exactly is and how an 11 Your Honor, in my second little tab there, which is 12 appellate court, which typically doesn't have the 12 going to be on what's page 13 -- and I've actually 13 benefit of the input of the trial judge, but only the 13 highlighted the portion there on the bottom where it 14 cold record. So here we are dealing with a record and a 14 says while review of the cold record -- and that's what 15 trial that the only people who were present when it 15 we're doing here. While review of the cold record 16 occurred are the lawyers, and we certainly have a 16 appears to be exactly what was needed in this case -- 17 disagreement as to what that evidence shows. 17 and as the Court may be aware, in this particular case, 18 THE COURT: How do you respond to that, the 18 there was a question about whether the plaintiff or the 19 fact that I did not sit through the trial? 19 decedent, I think it was, had their seatbelt on. 20 MR. BENNETI: There's -- first off, on the 20 Plaintiff in Iimine'd that out before they started 21 legal standard, there is two points on that issue. 21 trial. And during trial, through the police officer, 22 First off, it is unquestionably that it is 22 the plaintiff -- an optional completeness -- offered the 23 interlocutory. Three points, really. It is 23 evidence that didn't have the seatbelt on. Then the 24 interlocutory. And under the Rush case, you have 24 defense counsel stood up in closing argument and argued 25 discretion to do this without any restriction 25 didn't have the seatbelt on. Plaintiff stood up and 30 32 1 whatsoever. As the court in Mesa (phonetic) Argo 1 objected and said that's a violation of the motion in 2 states, your power is full, entire, complete, absolute, 2 limine and the court agreed. And then the Supreme Court 3 perfect and unqualified. Then courts have actually 3 said on its face the plaintiff waived it, and that was 4 looked at this exact situation. And in our reply brief 4 the sole basis for granting the new trial, was the fact 5 we cited this in re Baylor Medical Center case from the 5 of violating the motion in limine. And on the face of 6 Texas Supreme Court in 2008, which says that we're 6 the record, it was obvious that the court got it wrong 7 essentially obligated. Because this order was signed on 7 because the plaintiff had waived it. So that's what 8 the last day, your coming on the bench, we should not be 8 happened in this instance. 9 prejudiced by the fact that you, by necessity, have to 9 But going on and reading, it says that 10 decide this. And we've cited a series of cases that 10 limitation frequently places appellate courts at a 11 talk about how a writ of mandamus will not lie against 11 disadvantage in evaluating whether there is a good cause 12 the successor judge in the absence of a refusal to grant 12 to grant a new trial. As we recognized in Columbia, 13 the relief that we ask. So the courts have established 13 there are differences between the review that can be 14 that that is the right procedure. But there is no 14 accomplished by appellate judges who have only the 15 support on a new trial motion or a motion to reconsider 15 record to consider, as this Court is sitting, and trial 16 for the idea that what matters is the judge's 16 judges who have seen the parties and witnesses and sense 17 credibility finding. 17 the effect of certain evidence or occurrences on the 18 What matters is the jury's verdict, when 18 trial. And even onto the next page, toward the end, 19 you review this record. The jury, as we cite on 19 often the trial court's presence and observations 20 pages 13 through 15 of our brief, is under any standard 20 throughout the trial will be indispensable in evaluating 21 of review the sole judge of credibility. And especially 21 whether the requisite good cause exists to justify 22 since you don't get the benefit of Judge Griffin having 22 setting aside a jury verdict and granting a new trial. 23 signed an order that says how he thinks there was 23 We would submit, Your Honor, that that's -- 24 causation here, that you have to take a, as they say, 24 in all due respect -- I mean, I wish the Court could 25 plenary or, you know, a do-over review of the evidence 25 have been there. It would make this a lot easier. But 05/19/201511 :46:03 AM Page 29 to 32 of 52 8 of 23 sheets 33 35 1 the trial judge who was there, who had the opportunity 1 the evidence had to believe on causation. You should be 2 to make the decision, said that a new trial was 2 able to look at that two-page order and say here's why 3 warranted based upon what he saw. What they're asking 3 he overturned that no -- the zeros on question 2, and he 4 the Court to do is to make a Court of Appeals' cold 4 just doesn't do that. 5 record, merits-based review of the entire record. And 5 THE COURT: So are you suggesting there 6 that's not what Toyota requires. That's not what in re 6 should be, for example, findings of facts and 7 Columbia requires. That's not what in re Scaffolding 7 conclusions of law incorporated into the order? 8 requires. And I would submit, Your Honor, that as far 8 MR. BENNETT: I don't think that there has 9 as this case, because the Court didn't have the benefit 9 to be -- I think that the standard is -- for appeal, at 10 of hearing the evidence, that we're limited to whether 10 least, would be the Toyota standard, and that would 11 the order, on its face, meets the requirements of 11 require him to at least specifically identify what piece 12 Toyota. 12 of evidence and what -- that's what the courts look at, 13 And as the Court's pointing out, trial 13 is they say, well, the judge at least identified this 14 courts can't act as courts of appeals. Trial courts 14 issue versus that issue and here's why. You can read 15 aren't equipped to sit down and read 2 weeks of trial 15 his order all day long and you can't find a single one 16 testimony. Trial courts don't typically have briefing 16 piece of evidence where he says here is why I find that 17 clerks that can provide -- these are the points and 17 Valero's negligence caused this situation. You can -- 18 write an opinion as they would suggest, which is -- how 18 it's two pages. You can look at it. All he says is 19 many pages is Toyota and how many pages did they devote, 19 which is caused by Valero's evidence. Not a single 20 in a very simple question, to what the evidence was? 20 piece of evidence whatsoever. 21 That's not what trial judges have to do. 21 THE COURT: Mr. Todd? 22 THE COURT: Response? 22 MR. TODD: Well, just again, the order on 23 MR. BENNETT: Yes, Your Honor. 23 its face meets the requirements of Toyota, and to me 24 This is interlocutory, and it is exactly 24 that's what we're here about. Also, as far as the 25 what the Texas court says you can do and that we're 25 record, I don't think the entire record has been 34 36 1 actually required to bring this to you to do, a 1 provided to the Court, but only parts of the record. 2 merits-based review, which is what the Court of Appeals 2 And in in re Mark Athens, which was decided February 13 3 actually does, as well. But you are not bound by any 3 of this year -- and this is a copy of that -- 4 discretionary standards. Because this is a final order 4 THE COURT: Thank you. 5 and because it's now been put in your lap, you can do 5 MR. TODD: -- opinion where the record 6 that review and need to do that review. But what it 6 wasn't complete and the court disagreed with the 7 really drives home is you don't have to look at the 7 position that it didn't have to be the complete record. 8 whole record, of course. You only have to look at 8 In fact, in that particular case, it was -- the record 9 what -- you can look at the whole record, but the 9 was provided, but the exhibits weren't. And the court 10 parties have filed extensive briefs that direct you to 10 says we're not going to give you mandamus because of 11 it. But it really points out the deficiency on the 11 that, because of the record. 12 causation part of Judge Griffin's order. Because what 12 And this is something -- I digress a little 13 you should be able to do is look at, okay, well, what 13 bit. The courts are really in a flux right now as it 14 does Judge Griffin say is the basis for causation. You 14 relates to this thing on mandamus. Mandamus has 15 should be able to look in there and say, well, I find 15 historically been an extremely difficult remedy to 16 that they caused that because I find that he actually 16 achieve from an appellate standpoint because it requires 17 was there. The jury couldn't -- you know, the jury was 17 an abuse of discretion, meaning that the court had no 18 wrong to do that, it was against the manifest weight of 18 guiding principles, had nothing to go by. We had the 19 the evidence. I find that he was there close enough in 19 benefit of sitting here for 2 weeks for one thing. That 20 time so there's causation that -- and that the BP 20 in itself is a guiding principle. But then they've 21 employment couldn't have been the causation. 21 mixed it with this merits-based review. And by the way, 22 And so what -- the reason why this 22 as far as merits-based review, the Appellate Court's 23 situation is different than the one that Mr. Todd is 23 interpreting what the Supreme Court said said that the 24 putting forward is Judge Griffin doesn't, with 24 Appellate Court may make a merits-based review. It's 25 specificity, say here's the evidence that I am finding 25 not compelled to. 9 of 23 sheets Page 33 to 36 of 52 05/19/201511:46:03 AM 37 39 1 Now, we would submit that we can't 1 MR. TODD: I guess my point here is the 2 second-guess Judge Griffin or we're going to get 2 standard here is the sufficiency of the evidence and 3 second-guessing all over the place all the time we have 3 whether it's against a great weight. That's what I'm 4 a circumstance like this occur. In this particular 4 saying. 5 instance, the judge's obligation is to make sure that a 5 MR. BENNETT: Yeah. We articulate the 6 fair trial occurred; and that if it didn't and there's 6 exact same standard. 7 reasons why a plaintiff is entitled to another -- or 7 MR. TODD: Right. That's the way I 8 even a defendant, it wouldn't make any difference who it 8 understood it. 9 was -- that if it's necessary for the ends of justice 9 And then she goes on to say it has 10 ultimately be served, that another trial be allowed. 10 annunciated a new standard of review for intermediate 11 This was not taken lightly by the court. I didn't file 11 appellate courts -- it doesn't say trial courts -- 12 the motion lightly because it requires me to come back 12 intermediate appellate courts to use to implementing its 13 down here too. And we would submit that under the 13 directive, the merits-based review. But the interesting 14 existing authority, as we have it today, this order is 14 part comes over to the dissenting opinion, Sharon 15 sufficient and meets the requirements of in re Toyota. 15 McCally. She says as a question of first impression of 16 MR. BENNETT: I think, Your Honor, I would 16 this court, the majority decides the standard by which 17 start to repeat myself, but the only thing I would ask 17 the Court of Appeals performs such a merits-based 18 is that if -- you look through that two-page order and 18 mandamus review. Instead of the traditional mandamus 19 see if there's a single piece of evidence that ties 19 standard, abuse of discretion, the majority adopts the 20 depression to conduct of Valero, and I am confident that 20 factual sufficiency review not only affording no 21 it's not there. 21 discretion to the trial court's decision, but also 22 THE COURT: Is there anything further? 22 affording full deference to the jury's determination 23 MR. TODD: I would just -- if I could, just 23 presumed -- determination of credibility. The Texas 24 to show you where the courts are on this. And this -- 24 Supreme Court has not articulated the standard we should 25 THE COURT: Are you on the Toyota case or a 25 apply; however, in repeatedly affirming the discretion 38 40 1 different case? 1 of the trial court to grant new trials, the Texas 2 MR. TODD: This is an in re Wyatt Field 2 Supreme Court has implicitly rejected the standard we 3 Service Company, and I'll leave that with the Court, 3 adopt today. Further, the Texas Supreme Court placed 4 even though it has my notes and my stickies. 4 strictures on the trial court's discretion while 5 THE COURT: You can submit another one. 5 explicitly referencing the successful Fifth Circuit 6 That would be fine. 6 approach as a model. Therefore, I suggest we adopt the 7 MR. TODD: I mean, I don't have any problem 7 Fifth Circuit standard for reviewing such orders because 8 with my notes and things. 8 it is a standard that is structured to afford deference 9 MR. BENNETT: It doesn't bother me either. 9 to both the jury's verdict and the trial court's 10 I'm going to tender our cases at the end of this. 10 necessary oversight. 11 THE COURT: Thank you very much. 11 MR. BENNETT: And, Judge, in response to 12 MR. TODD: But, for instance -- now, this 12 that, the very first case that we cite in our brief is 13 is in a dissenting opinion by Justice McCally, and the 13 Baylor Medical Center at Garland, relator Supreme Court 14 majority was actually written by Justice Jamison. And 14 of Texas, 2008. What happened in that case is the 15 what Justice Jamison, in her part of the opinion says, 15 Williamses brought a medical malpractice case. The case 16 ironically, although the high court has directed trial 16 was tried to a jury which found in the defendant's 17 courts to articulate a well-defined legal standard, is 17 favor. On May 6, Judge Joe Cox signed a take-nothing 18 one indicia that it's new trial order is legally 18 judgment, but 82 days later granted a new trial after 19 appropriate. I don't think anyone is arguing the 19 further hearings. In the meantime, Judge Nancy Thomas 20 standard in this instance. I think it's whether the 20 succeeded Judge Cox. Two months later, Judge Thomas 21 facts are stated sufficient to support the standard as I 21 vacated the new trial order and reinstated the judgment 22 understand the position; is that right? 22 on the jury verdict. It's our exact facts. And what 23 MR. BENNETT: We don't believe that the 23 the Supreme Court did in that case was overrule the -- 24 order meets the standard, but we also don't think that 24 overruled the decision. And they say that you can look 25 that matters for purposes of interlocutory review. 25 at this in a total plenary manner. 05/19/201511:46:03 AM Page 37 to 40 of 52 10 of 23 sheets 41 43 1 MR. TODD: The problem with that is that's 1 THE COURT: No, sir. I'll just clip them 2 before Toyota, before United Scaffolding. That's the 2 together. 3 point. Those are the cases that deal with articulation 3 MR. TODD: I'm not going to be at a 4 that a trial court must set forth. And what is that? 4 disadvantage because it's not a pretty notebook? 5 Is it going to be a two-page order, as we have here, or 5 MR. BENNETT: I think you're going to be 6 is it going to be a 30-page opinion, as the court wrote 6 treated just fine. 7 out? Findings of fact and conclusions of law is what it 7 THE COURT: I really appreciate the time. 8 almost seems to be. And if the Supreme Court wanted 8 And I can tell you in the future what we will do is 9 that, that's the place for that decision to be made. 9 ensure all civil hearings are set at 10 :00. I know that 10 MR. BENNETT: Garland is on point and I 10 there are so many of you that come through and are 11 think would be instructive. 11 waiting, and I'm trying to juggle a criminal docket and 12 The only other observation I would make 12 a civil docket, and we'll try to be considerate of your 13 about this is there's a lot of discussion about 13 time. 14 overruling Judge Griffin's post-trial motion. But 14 MR. BENNETT: Thank you, Your Honor. On 15 what's happening here as well, is overruling a 12-0 15 behalf of our client -- and I'm sure Mr. Todd agrees -- 16 verdict by the jury where we had 13 citizens of this 16 we appreciate your time and attention and our clients 17 county here for 2 weeks who are in charge of assessing 17 are glad to be here. 18 credibility and who are in charge of doing -- of looking 18 THE COURT: Thank you. I can't tell you 19 at these things and who are entitled to disregard the 19 how much I really enjoyed your hearing this morning. 20 expert opinion. 20 MR. BURNS: Your Honor, I have one other 21 And so when you're looking at who's in the 21 matter to bring up that's not on the new trial motion 22 best position to judge whether this is the right result 22 that Mr. Todd and I argued before Judge Griffin back on 23 or not, I would urge the Court not to forget that Texas. 23 the 30th also, the same day we did this, that dealt with 24 places that in the people that are in that box. 24 the exclusion of a couple of defense experts. It's not 25 MR. TODD: And I know it's not a tennis 25 set this morning. I don't intend to argue it this 42 44 1 match and I apologize, but this is important. 1 morning. But I was looking for the Court's gUidance 2 THE COURT: No. I'm fine. Go right ahead. 2 on -- I need to reset that. It was never ruled upon, to 3 I enjoy the bantering. 3 my knowledge. 4 MR. TODD: I suspect that we might be able 4 MR. TODD: That's probably the better 5 to find one or two cases in Texas jurisprudence where 5 thing, to reset it as perhaps we do not anticipate a 6 Valero has taken the position that the jury got it 6 response. So the hearing would probably be very short. 7 wrong, and we can probably find a few of those. 7 THE COURT: Just get with Jo Ann, my court 8 MR. BENNETT: Not anyone that I've tried. 8 coordinator. She handles all my scheduling. Nothing 9 MR. TODD: Because this is the first one 9 gets put on that calendar without Jo Ann giving it her 10 you've tried here. 10 blessing. She just basically tells me what to do. 11 MR. BENNETT: I've tried a few other 11 Thank you. 12 places. 12 MR. TODD: May we be excused? 13 MR. TODD: Maybe we should ask your client. 13 THE COURT: Yes, sir. Thank you again. 14 THE COURT: Well, let's not make it 14 MR. TEKELL: You inquired yesterday who I 15 personal. Let's rely on the law. No reason to -- 15 am. 16 MR. TODD: Here is the United Scaffolding 16 THE COURT: Yes, sir. 17 case. 17 MR. TEKELL: I represent Valero, and I 18 THE COURT: That's the plaintiff's cases? 18 would like to speak for this case because they are a 19 MR. BENNETT: And this is every case we 19 longtime client of ours. And I think I have some things 20 cited. You can throw it away when you're done. They're 20 to say -- 21 in the order that we cited them in the brief. 21 THE COURT: Mr. Todd, it appears that 22 THE COURT: I appreciate that. 22 there's some more testimony I believe that this 23 MR. TODD: Now, should we put ours in a 23 gentleman is asking to give to the Court. 24 notebook for you, Your Honor? Would it be easier for 24 MR. TEKELL: I want to argue this case for 25 you? 25 5 minutes, put it in perspective. 11 of 23 sheets Page 41 to 44 of 52 05/19/201511:46:03 AM 45 47 1 THE COURT: Is it regarding the motions 1 Now, jury trials. This case was tried to a 2 that have been filed? Have you given Mr. Todd adequate 2 jury. Somebody paid a jury fee. Somebody wanted a jury 3 notice of what you intend to discuss? 3 to decide this case. And the jury trial is something 4 MR. TEKELL: Well, yeah, it has to do with 4 that is held in very high esteem and regard throughout 5 a new trial and your granting BP -- I say BP -- Valero's 5 the United States, the preservation of the jury trial. 6 motion. It has everything to do with it. 6 And there is a recent article in the Texas Bar Journal 7 THE COURT: Sir, I guess come on back. 7 that speaks to this by our president of the state bar. 8 MR. TEKELL: I know Mr. Todd's probably 8 Jury trials foster ethics, professionalism, efficiency 9 bored with me. We spent months together in trial. 9 in our justice system and most importantly protect and 10 MR. TODD: We can tell who's paid by the 10 preserve our jury system. The trials by jury promote 11 hour. 11 those things. 12 MR. TEKELL: If that were the case, we 12 Also, a right to a trial by jury is the 13 won't take this personally. 13 very foundation of our liberties and freedoms. The same 14 I would just like to address -- no more 14 article. To me there's no higher ideal than the right 15 than 5 minutes of your time. 15 to trial by jury. We must not -- quoting Alexander 16 THE COURT: Please, sir. Just state your 16 Hamilton, we must not allow that liberty to die, civil 17 name for the record and spell it. 17 jury trials. This was written by Trey Apffel, who hangs 18 MR. TEKELL: My name is Kenneth Tekell, 18 out around in Galveston most of the time when he's not 19 Sr., T-E-K-E-L-L. 19 in Austin dealing in State Bar business. He quotes 20 Let me tell you why I am here and why I 20 haVing been in the organization of ABOTA, American Board 21 want to speak to this issue. To put it in the 21 of Trial Advocates, of which I was a founding member in 22 context -- and this will be fairly brief -- I have spent 22 Texas, in which Mr. Todd has been a member for many 23 several lifetimes it seems in the 212th Court. I have 23 years. And that organization is dedicated to the 24 been down here for four trials in this court. I have 24 preservation of the jury system. 25 been here week in and week out, at least once and 25 When we came to trial in here -- and I've 46 48 1 sometimes twice a week, in defending BP in cases before 1 been representing, through our law firm -- not me 2 Judge Susan Criss. I have been in this courtroom more 2 personally, but our firm -- Valero for years. And 3 than -- and I don't say this as bragging. It's probably 3 Valero is a longtime client of ours. And I felt out of 4 the sign of a fool. I have been in this court for more 4 necessity that I might come in and speak on behalf of 5 days than any other civil lawyer probably. I'll say not 5 our longtime client that this order of Judge Griffin's 6 only probably, but for sure than any other jury trial 6 should be set aside. What we've had over a history of 7 lawyer in the history of this court. In the history of 7 granting new trials, since I've been there for all of 8 this court, I would like, by my haVing been here and 8 it, most of it, in times past, a district judge could 9 being involved in jury trials, I would like to speak to 9 just say I'm giving a new trial and not have to make any 10 the issue. I just want to give you the background. 10 explanation for it. What that allowed was some judge to 11 THE COURT: Thank you, sir. You may 11 decide that, hey, I know better than a jury or I want to 12 proceed. 12 do it on behalf of somebody maybe that I've known a long 13 MR. TEKELL: I have been a trial lawyer for 13 time, set aside the jury verdict. But now they've 14 52 years. I have been a jury trial lawyer for 52 years. 14 started changing that, and it has developed into what we 15 Mr. Todd has been a jury trial lawyer for almost as long 15 have now in the cases cited by the lawyers. It is 16 as I have, but not qUite. He's a good many years 16 something that is very important, and that is to 17 younger, but he has been here. He knows all about jury 17 maintain jury verdicts. And the cases cited and the 18 trials. And that has been my stock and trade. That's 18 eVidence, as argued by Valero counsel, indicates that 19 been Mr. Todd's. 19 Judge Griffin does not indicate any part of the evidence 20 I have, as I say, tried numerous cases in 20 that suggests in any way the evidence now -- setting the 21 this very courtroom. I have been in Judge Cox's court 21 evidence in his order as to why it should be set aside. 22 trying jury trials in that court. One of them Mr. Todd, 22 This was set aside on the last day that he was in 23 another one Mr. Buzbee. I have been down here. I know 23 office. And for several reasons, I suggest, including 24 what goes on in jury trials. I want to let you know I 24 the law in the last-minute setting aside, is something 25 have had a lot of experience with it. 25 you should look at very carefully. I know you will. 05/19/201511:46:03 AM Page 45 to 48 of 52 12 of 23 sheets 49 51 1 There was really no reason spelled out in 1 that we defer to Judge Griffin. Despite the eloquence 2 that order. I think on behalf of Valero that you should 2 or whatever they may want to say, it doesn't change the 3 consider that very seriously. And also that you should 3 fact that the jury found negligence and as Judge Griffin 4 consider protecting the right to trial by jury. That's 4 says, should have found damages. 5 what we came in here for. That's what they spent 5 THE COURT: Anything further? 6 2 weeks here for. That's what I have been spending my 6 MR. BENNETT: The only thing I would like 7 lifetime doing, is relying upon jury verdicts, unless 7 to make sure of is you have our reply brief that was 8 there's something desperately wrong with what that jury 8 filed yesterday. 9 did. And I don't see anything in there desperately 9 THE COURT: I do. 10 wrong cited in the order very probably by Mr. -- excuse 10 MR. BENNETT: Okay. I believe that that 11 me -- by Mr. Todd setting aside anything based on the 11 addresses the points and you fully heard us. 12 exact evidence. 12 THE COURT: Anything further? 13 A jury fee was paid. Deliberations by a 13 MR. TODD: I don't know. I'm waiting to 14 jury of peers of this plaintiff and Valero -- they heard 14 see if there is anyone else. 15 all the eVidence. They were 12-0 in favor of Valero. 15 MR. TEKELL: The only thing I can say is I 16 And that is something that I think you should seriously 16 have never moved to set aside a jury verdict. 17 consider, along with the papers that have been filed and 17 THE COURT: I want everyone to note you are 18 along with the arguments that have been made. 18 free to speak as long as you like. 19 You know, I may sound a little bit 19 Listen, gentlemen, you can rest assured 20 emotional about this and I do get a little bit emotional 20 that whatever I decide, the Court of Appeals will tell 21 when we're talking about setting aside jury verdicts, 21 me if I'm right or I'm wrong. 22 which as we all know is the one thing that we need to 22 Thank you. 23 preserve and be made sacred. If there's something wrong 23 (Hearing concluded at 10:34 a.m.) 24 with this one, this jury, it certainly wasn't spelled 24 25 out in that order. 25 50 52 1 With that, thank you for your time. 1 REPORTER'S CERTIFICATE 2 THE COURT: Mr. Todd? COUNTY OF GALVESTON) 3 MR. TODD: Over the last 20 years, 3 4 Mr. Tekell will also agree that there has been an 4 I, Leslie A. Kesterson, Official Court Reporter in 5 incredible increase in reversal of jury verdicts at the 5 and for the 212th District Court of Galveston County, 6 request of defendants, including Mr. Tekell's firm, who 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcription of 7 very much appreciates and stands up for the jury system. 8 all portions of evidence and other proceedings requested 8 They have advocated the same argument on why it should 9 in writing by counsel for the parties to be included in 9 be reversed. And there have been more cases reversed 10 this volume of the Reporter's Record, in the 10 because -- in jury findings in this state in the last 11 above-styled and numbered cause, all of which occurred 11 20 years than there ever was in the jurisprudence 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of 12 before. 14 the proceedings truly and correctly reflects the 13 Now, we have to look at the order. In 15 exhibits, if any, admitted by the respective parties. 14 Toyota -- this is another portion of that case -- a new 16 I further certify that the total cost for the 15 trial order must be understandable, reasonably 17 preparation of this Reporter's Record is $300.00 and was 16 specific -- see Columbia 290 S.W.3rd 213 -- cogent, 18 paid by Tekell, Book, Allen & Morris, LLP. 19 WITNESS MY OFFICIAL HAND this the 19th day of May, 17 legally appropriate, specific enough to indicate the 20 2015. 18 trial court did not simply parrot a pro forma template 21 19 and issue, quote, only after careful thought and for lsi Leslie A. Kesterson 20 valid reasons. They're asking you to tell Judge Griffin 22 Leslie A. Kesterson, Texas CSR 5280 21 that he did not use careful thought and that he had no Expiration Date: 12/31/2016 22 valid reason. 23 Official Court Reporter 212th District Court 23 Now, they have reasons. They represent a 24 Galveston County, Texas 24 client. That's understandable. His duty is to the 600 59th Street, Suite 3306 25 State of Texas and to the system of justice. I submit 25 Galveston, Texas 77551 13 of 23 sheets Page 49 to 52 of 52 05/19/201511:46:03 AM Tab B Request for Oral Hearing Filed: 9/11/2015 10:27:08 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 6881639 By: Shailja Dixit 9/11/2015 11:45:47 AM
CAUSE NO. 12CV1541
VERNON FOX AND MIKKI FOX § IN THE DISTRICT COURT OF
VS. § GALVESTON COUNTY, TEXAS
NUSTAR LOGISTICS, LP., and VALERO ENERGY CORPORATION § 212TH JUDICIAL DISTRICT
REQUEST FOR ORAL HEARING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Valero Refining-Texas, L.P., Defendant in the above entitled and numbered
cause, and respectfully requests that the Court set its Motion Requesting the Trial Court to
Provide Its Reasons for Refusing to Enter Judgment on the Jury Verdict filed on September 11,
2015 on the Court’s hearing docket for the ___ day of _____________, 2015 at ____ a.m./p.m.
Respectfully submitted,
TEKELL, BOOK, ALLEN & MORRIS, L.L.P.
/s/ David W. Burns ______________________________________ DAVID W. BURNS State Bar No. 00785735 1221 McKinney, Suite 4300 Houston, Texas 77010 (713) 222-9542 (713) 655-7727 Facsimile Email: dburns@tekellbook.com ATTORNEYS FOR DEFENDANT, VALERO REFINING-TEXAS, L.P.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel of record by Efile/Eserve, and/or Facsimile on this the 11th day of September, 2015.
/s/ David Burns _______________________________ DAVID BURNS
in Re Valero Refining-Texas, L.P. (in Re Valero Refining-Texas, L.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.