in Re Washburn Ranch Well-Site Fire Litigation

• Court: Court of Appeals of Texas
• Decided: January 30, 2015
• Docket: 14-1030
• Status: Published

Opinion

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

No. 14-1030 JudicialPanel on Multidist~ict Litigation

IN RE WASHBURN RANCH WELL-SITE FIRE LITIGATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IN RE JUDICIAL PANEL

WASHBURN RANCH ON MULTIDISTRICT WELL-SITE FIRE LITIGATION LITIGATION

MOTION FOR TRANSFER

Pioneer Natural Resources Company and Pioneer Natural Resources USA,

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

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

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

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

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

would respectfully show the following:

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

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

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

coordinated pretrial proceedings. Contrary to the Rodriguez Respondents'

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

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

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

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

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

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

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

efficient conduct of actions because it would eliminate duplicative discovery,

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

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

common issues, and reduce unnecessary travel.

ARGUMENTS AND AUTHORITIES

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

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

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

whether to transfer the five underlying cases into one coordinated pretrial

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

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

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

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

and may have dominant jurisdiction over the Bexar County Rodriguez Lawsuit

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

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

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

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

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

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

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

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

district litigation rules to one pretrial court for consolidated and coordinated

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

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

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

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

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

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

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

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

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

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

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

conduct ofthe litigation, including:

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

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

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

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

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

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

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

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

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

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

summary judgment.

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

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

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

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

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

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

Texas.6

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

~xu~

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harris County, Texas.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

distinguish these circumstances from those in Hurricane Rita Evacuation,

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

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

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

The Rodriguez Respondents emphasize the erroneous allegation that the

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

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

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

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

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

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

determining whether to transfer to consolidated pretrial proceedings. Moreover,

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

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

Rodriguez family.

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

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

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

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

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

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

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

distinguishable from those before the Court today.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unlike the inherently individualized valuation of separate properties in Valero II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issues in all ofthe underlying cases.

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

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

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

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

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

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

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

underlying cases are related within the meaning of Rule 13.

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

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

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

and efficient handling of the cases by eliminating duplicative discovery,

minimizing conflicting demands on witnesses, and reducing unnecessary travel.

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

In discussing whether transfer would further convenience and efficiency,

this Court has previously held that:

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

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

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

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

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

very plausible.

18 Pioneer has identified fact and common expert witnesses who will

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

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

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

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

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

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

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

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

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

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

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

witnesses was sufficient to establish that consolidation would minimize

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

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

(concluding that the convenience and efficiency established when lawyers would

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

treating medical providers overlap.

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

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

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

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

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

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

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

incident, thereby conserving party resources, eliminating duplicative discovery,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

already submitted 245 requests for production and 49 interrogatories).

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

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

consolidated pretrial proceedings for the underlying cases would conserve party

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

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

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

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

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

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

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

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

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

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

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

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

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

compliance before one pretrial judge.

V. Pioneer did not request transfer to a particular county

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

show itselfjustly entitled.

Respectfully submitted,

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

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

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

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

25 CERTIFICATE OF SERVICE

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

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

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

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

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

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

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

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

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

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

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

ASSOCIATED REGISTERED AGENT FILING HISTORY NAMES MANAGEMENT ASSUMED NAMES ENTfTIES

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

~TOrder^~ ~ Return to Search__l

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

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

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

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

FILING OFFICE COPY Exhibit "B" DRAFT OF PROPOSED PROTOCOL

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

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

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

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

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

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

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

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

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

The following equipment is available at Mark Goodson Engineering:

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