No. 01

- 15

- 00450 -CV

IN THE

FIRST COURT OF APPEALS

at Houston , Texas

IN RE RELIABLE COMMERCIAL ROOFING SERVICES, INC.

,

Relator

From the 125 th District Court of

Harris County, Texas

RELATOR’S REPLY TO REAL PARTY IN INTEREST’S RESPONSE TO

PETITION FOR WRIT OF MANDAMUS

R AMSEY & M URRAY

, P.C.

Mark Ramsey

Texas Bar No. 16521700

Wayne Walters

Texas Bar No. 24029333

800 Gessner, Suite 250

Houston, Texas 770 24

- 4239

Tel. 713/613

- 5400

Fax 713/613

- 5414

ATTORNEY S FOR RELATOR,

RELIABLE COMMERCIAL

ROOFING

SERVICES, I NC. ACCEPTED

01-15-00450-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/29/2015 9:54:53 AM

CHRISTOPHER PRINE

CLERK2 TABLE OF CONTENTS

INDEX OF AUTHORITIES

................................ ................................ ........... 3

ARGUMENT

................................ ................................ ................................ .. 4

PRAYER

................................ ................................ ................................ ....... 10

CERTIFICATION

................................ ................................ ........................ 11

CERTIFICATE OF SERVICE

................................ ................................ ..... 1 2

CERTIFICATE OF COMPLIANCE

................................ ............................ 123 INDEX OF AUTHORITIES

RULES OF CIVIL PROCEDURE

T EX

. R. C IV

. P. 204

................................ ................................ ............................. 8,9,10

CA SES

In re Ten Hagen Excavating, Inc. , 435 S.W.3d 859, 866 (Tex. App.

— Dallas 2014,

orig. proceeding)

................................ ................................ ......................... 5,8,9,10

In re Transwestern Publishing Company, L.L.C ., 96 S.W.3rd 501 (Tex.App.

— Fort

Worth 2002, orig. proceeding)

................................ ................................ ............. 8,9

In the interest of N.R.C. and L.A .C. , 94 S.W.3d 799 (Tex.App.

— Houston [14 th

Dist.] 2002, pet.denied)

................................ ................................ ......................... 10

Sherwood Lane Assoc. v. O'Neill

, 782 S.W.2d 942 (Tex. App.

– Houston [1st Dist.]

1990, orig. proceeding)

................................ ................................ ..................... 4,5,64 N o.

____________

IN RE RELIABLE COMMERCIAL ROOFING SERVICES , INC.,

Relator

RELATOR’S REPLY TO REAL PARTY IN INTEREST’S RESPONSE TO

PETITION FOR WRIT OF MANDAMUS

I. INTRODUCTION

Relator, RELIABLE COMMERCIAL ROOFING SERVICES, INC.

(“Reliable”)

, submit s this reply to the response filed by Kenneth Presson, the Real

P arty in Interest (“Presson”)

, to Reliable’s petition for writ of mandamus pending

before the Court.

II. ARGUMENT

A. Fundamental Fairness and the Right to Discovery

Presson argues in his Response that, because the treating physicians he

identified “migh t” be asked to testify at trial, but have not yet been retained as

experts, the “fundamental fairness” doctrine proposed by this Court in the

Sherwood Lane decision somehow does not apply to Reliable’s request for a

medical exam. In Sherwood Lane , this Cou rt stated as follows:

The movant must demonstrate that the information sought [through

the exam] is required to obtain a fair trial and therefore necessitates

intrusion upon the privacy of the person he seeks to have

examined...If, however, a plaintiff inte nds to use expert medical

testimony to prove his or her alleged...condition, that condition is

placed in controversy and the defendant would have good cause for an

examination...5 Sherwood Lane Assoc. v. O'Neill

, 782 S.W.2d 942

, 945 (Tex. App.

– Houston [1st

D ist.] 1990, orig. proceeding)

. Presson does not state in his response that he has no

intention to use expert medical testimony to prove his condition. Without a doubt

this is Presson’s intention. Because Presson clearly intends to use expert medical

testim ony to prove his alleged condition, Reliable has good cause for its requested

medical exam under Sherwood Lane

.

The trial court’s action in denying the motion for medical examination

severely restricts Reliable’s opportunity to discovery facts that may c ontradict

those of the Plaintiff’s treating physicians. See Id. Importantly, as this Court has

previously held:

The ultimate purpose of discovery is to seek the truth, so that disputes

may be decided by what the facts reveal, not by what facts are

conceal ed.... Fundamental fairness dictates that relators’ [physician]

be allowed to examine the [plaintiff]; otherwise, relators will be at a

severe disadvantage in the “battle of experts.”

Id. Stated another way by another court in considering an exam request : “A denial

of discovery goes to the heart of a party’s case when the party is prevented from

developing essential elements of its claim or defense.” In re Ten Hagen

Excavating, Inc. , 435 S.W.3d 859, 8 63

- 64 (Tex. App.

— Dallas 2014)

.

B. Trial Court’s Ruling

P resson further argues in his Response that the trial court made a factual

finding that Reliable did not meet its burden of showing good cause, thus denying6 Reliable’s request for a medical exam. However, the basis for the trial court’s

erroneous ruling is nowhere in the record and there is no indication of any factual

finding by the trial court with regard to Reliable’s request for medical exam. [ See

Tabs E and H to Reliable’s Petition.] It must be presumed that the trial court based

its decision on Presso n’s “less intrusive means” argument, because this is the only

argument asserted in Presson’s responses at the trial court level. [ See Tabs D and G

to Reliable’s Petition.] The trial court abused its discretion because

, despite

Reliable’s showing of good ca use under controlling case law

, the trial court

arbitrarily and erroneously denied its request for a medical exam

.

C. Relevant Examination, Nexus Between Exam and Condition

Presson further argues in his Response that Reliable’s argument in this

mandamus proceeding is somehow deficient because its briefing d oes not show

that the requested examination will lead to relevant information or that there is a

nexus between a condition Presson asserts and the examination Reliable seeks.

This argument is disingenuo us at best, given the timing of the argument at this

stage of the proceeding when it was not made by Presson at the trial court level.

Reliable’s Motion for Medical Examination at the trial court level clearly

addresses the “relevance” and “nexus” elemen ts. [ See Tab C to Reliable’s

Petition.] However, Presson did not argue (in responding to either Reliable’s

motion for medical exam or Reliable’s motion for reconsideration) that either the7 relevancy of the exam or the nexus between the exam and Presson’s c ondition(s)

was in issue. [ See Tabs D and G to Reliable’s Petition.] A s stated previously

,

Presson’s argument in opposition to the requested exam was limited to the “less

intrusive means” argument.

D. Potentially “Favorable” Information Available from

T reating Providers Does not Preclude Exam

Presson further argues in his Response that Reliable’s request for a medical

exam is somehow weakened by the fact that there may be some information in

Presson’s medical records which “Reliable could well find fa vorable and use at

trial.” No authority was cited and no authority exists to support this argument.

Along the same lines, Presson also argues that, because “favorable” information

may be found in the medical records, “[t]here is no reason to compel Mr. Pre sson

to undergo additional exams so as to obtain what could be the exact same

testimony.” This argument presumes that Presson knows the results of the

examination before it is performed. However, if the requested medical exam were

to be conducted

, such an exam may result in information that Presson could also

“well find favorable and use at trial.” Again, this argument is presented by Presson

without any legal authority to support it.

To the extent that the opinions of the treating medical providers ident ified as

“potential” testifying experts may be found to undermine Presson’s claims, this

would have no bearing on whether Reliable is entitled to the requested medical8 exam. As suggested in Presson’s response, one such treating provider, psychologist

Dr. F rancisco Perez

, has opinions which may tend to “ undermine ” Presson’s

claims. This suggestion might be more meaningful if Reliable had requested an

examination by a psychologist. In that scenario, it might be valid for Presson to

argue that Reliable has acc ess to the “favorable” results of a psychological exam

and, therefore, sh ould not be entitled to another psychological exam. However,

Reliable has requested a neurological examination to be performed by neurologist

Raymond Martin, M.D

. Dr. Martin can opine as to the physical injury to Mr.

Presson’s head and the effects of that injury, whereas Dr. Perez, a Ph.D.

psychologist is unqualified to give an opinion as to the physical injury or the

physical impairment alleged by Presson in this lawsuit

.

E. Applic ation of Rule 167a versus Rule 204.1

Presson further argues that the re is a meaningful distinction between the

language of former Rule 167a and the current Rule 204.1 in how courts should

consider the “good cause” requirement in requests for medical exams

. Presson

seems to assert that Rule 204.1 has a more stringent requirement for courts to

analyze and apply the “good cause” requirement. Presson references

Transwestern and Ten Hagen (notably, Fort Worth and Dallas cases, respectively)

,

both of which inv olved requests for exams under the current Rule 204.1

, ostensibly

to show that the Plaintiff’s use (or intended use) of medical experts is insufficient9 under Rule 204.1 to show good cause

, absent satisfaction of the three

- part “good

cause” test.

Here, it is important to reiterate that the only “good cause” element

challenged by Presson in the trial court pleadings is the “less intrusive means”

element. Further

, as set forth in Reliable’s Petition, Transwestern and Ten Hagen

,

both support Reliable’s positi on. In Transwestern

, the Fort Worth Court of

Appeals found that the information sought by way of the requested exam could not

be obtained by less intrusive means because , absent the exam, the defendant’s

experts would be limited to a review of the plaintif f’s records and the testimony of

the plaintiff’s experts. In re Transwestern Publishing Company, L.L.C ., 96

S.W.3rd 501 , 508 (Tex.App.

— Fort Worth 2002, orig. proceeding)

.

In Ten Hagen

, the court considered all three elements of the “good cause”

test and f ound that good cause existed to allow the requested exam. N otably, the

court considered the “less intrusive means” element and found that, although there

are “a number of avenues that could...potentially provide less intrusive means for

obtaining medical in formation without an examination...[t]he adequacy of these

measures must still be evaluated in light of the fair trial standard.” In re Ten

Hagen Excavating, Inc. , 435 S.W.3d 859, 8 69

- 70 (Tex. App.

— Dallas 2014)

. Th at

court went on to state:

In general, and particularly where the intended examination is not

intrusive, invasive or unnecessarily physically uncomfortable, parties10 are permitted to explore matters not covered by the opposing party's

examinations, make their own observations, and attempt to discove r

facts that may contradict the opinions of the opposing party's expert

witnesses.

Id . at 870

As is also set forth in Reliable’s Petition, the 14 th Court of appeals in

Houston (applying Rule 204.1) held that a trial court abused its discretion in

denying a motion for an independent psychological examination

, finding that

“good cause for a psychological examination is established where the petitioner

intends to use expert medical testimony to prove a fact in controversy.” In the

interest of N.R.C. and L.A .C. , 94 S.W.3d 799 , 815 (Tex.App.

— Houston [14 th Dist.]

2002, pet. denied)

. It does not appear that this Houston court decision was

considered in Presson’s Response.

PRAYER

For these reasons and as set forth more fully in Relator’s Petition for Writ of

Mandamus

, R elator ask s that the Cou rt issue a writ of mandamus directing Judge

Carter to vacate h is order s of February 27 and May 5 , 2015 and to enter an order

granting Relator ’s Motion for Medical Examination of the Plaintiff

.11 Respectfully submitted,

R AMSEY & M URRAY

, P.C.

By:_________________________

_ Mark Ramsey

SBOT No. 16521700

Wayne Walters

SBOT No. 24029333

800 Gessner, Suite 250

Houston, Texas 770 24

Phone: (713) 613

- 5400

Fax: (713) 613

- 5414

Attorney s for Relator

, RELIABLE COMMERCIAL

ROOFING ERVICES, INC.

CE RTIFICATION

I certify that I have reviewed the petition and have concluded that every

factual statement made in the petition is supported by competent evidence included

in the appendix to the Petition for W rit of Mandamus or in the record.

________________________ Wayne Walters12 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Word 2013 and contains 1556 words, as determined by t he computer software’s

word

- count function, excluding the sections of the document listed in TRAP

9.4(i)(1).

________________________ Wayne Walters

CERTIFICATE OF SERVICE

I certify that, on the 29 th day of June

, 20 1 5 , I served electronically and/or by

certified mail, return receipt requested, a copy of this document on the following

parties:

a. Kurt B. Arnold

, Caj D. Boatright and Cesar Tavares

, ARNOLD & UITKIN

LLP

, 6009 Memorial Drive

, Houston , Texas 77 007

.

b. The Honorable Kyle Carter

, J udge of the 125 th District Court of Harris

County, Texas, 201 Caroline, 10 th Floor, Houston , Texas 77 002

________________________ Wayne Walters