No. 01-15-00758-CV

I N T HE C OURT OF A PPEALS F OR T HE F IRST D ISTRICT OF T EXAS H OUSTON , T EXAS

I N R E A DVANCED P OWDER S OLUTIONS , I NC ., Relator . Original Proceeding from Cause No. 2014-16020 In the 125 th Judicial District Court of Harris County, Texas The Honorable Kyle Carter, Presiding

R ESPONSE TO P ETITION FOR W RIT OF M ANDAMUS

KURT B. ARNOLD SBN: 24036150 karnold@arnolditkin.com J. KYLE FINDLEY SBN: 24076382 kfindley@arnolditkin.com KALA SELLERS

SBN: 24087519 ksellers@arnolditkin.com ARNOLD & ITKIN LLP 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 222-3800 Facsimile: (713) 222-3850
A TTORNEYS F OR R EAL P ARTY IN I NTEREST , T REMAINE H EWITT ACCEPTED 01-15-00758-cv FIRST COURT OF APPEALS

HOUSTON, TEXAS 10/30/2015 5:59:44 PM CHRISTOPHER PRINE

CLERKi I DENTITY OF P ARTIES AND C OUNSEL In addition to the counsel identified in the Petition for Writ of Mandamus, please note the appearance of additional c ounsel for the Real Party in Interest: Kala Flittner Sellers SBN: 24087519 ksellers@arnolditkin.com A RNOLD & I TKIN LLP 6009 Memorial Dr. Houston, TX 77007 Telephone: (713) 222-3800 Facsimile: (713) 222-3850ii T ABLE OF C ONTENTS P AGE I DENTITY OF P ARTIES AND C OUNSEL .......................................................................... i
T ABLE OF C ONTENTS ................................................................................................. ii
I NDEX OF A UTHORITIES ............................................................................................ iiv
I SSUES P RESENTED ................................................................................................... vii
I NTRODUCTION ............................................................................................................ 1
S TATEMENT OF F ACTS ................................................................................................. 3
A RGUMENT ................................................................................................................. 6 I. Applicable Le gal Standa rds ............................................................................. 6 A. Mandamus ............................................................................................. 6 B. Abuse of Discreti on ............................................................................... 6 C. Compelled Independent Medical Examinations ................................... 8 II. The trial court properly exercise d its discretion when it denied APS’s motion to compel both an independent medical examination and a functional capacity evaluation. ...................................................................... 10 A. APS did not provide the tria l court with evidence that an independent medical examina tion or functional capacity evaluation would provide relevant , discoverable evidence. ............... 13 B. While there may be a nexus betw een Plaintiff’s injuries and an independent medical examina tion, this prong alone is insufficient to support a finding that the trial court abused its discretion. ............................................................................................ 14iii C. APS must seek to obtain the desired information through less intrusive forms of discovery be fore resorting to a compelled medical examin ation.......................................................................... 155 1. Compelled medical examinations intrude on the injured party’s priv acy. .......................................................................... 18 2. APS did not provide the tria l court with any indication of what it was looking for that could not be determined through less intrusiv e discovery. .............................................. 20 3. Good cause is always require d before a court orders an independent medical examination. ........................................... 22 D. APS failed at the trial court le vel, as well as in their writ for mandamus, to show they are entitled to a functional capacity exam and the trial court’s deni al of such was an abuse of discretion ............................................................................................. 26 E. Even Ten Hagen —the sole case cited by APS in its motion to compel—supports the trial court’s deci sion. ..................................... 267 F. Any arguments made regardi ng Plaintiff’s economist Kenneth McCoin are irrelevant and misguide d. .............................................. 299
C ONCLUSION ............................................................................................................. 31
P RAYER FOR R ELIEF .................................................................................................. 31
C ERTIFICATE OF S ERVICE .......................................................................................... 33 C ERTIFICATE OF C OMPLIANCE ................................................................................344
A PPENDIX .................................................................................................................. 35iv I NDEX OF A UTHORITIES C ASES P AGE ( S ) Acosta v. Tenneco Oil Co. , 913 F.2d 205 (5th Cir. 1990) ......................................................................... 25 Coates v. Whittington , 758 S.W.2d 749 (Tex . 1988) ..................................................................p assim CSR Ltd. v. Link , 925 S.W.2d 591 (T ex. 1996) ........................................................................... 6 Diaz v. Con-Way Truckload, Inc. , 279 F.R.D. 412 (S.D. Tex. 2012 ) .................................................................. 24 Gavin v. Hilton Worldwide, Inc. , 291 F.R.D. 161 (N.D . Cal. 2013) .................................................................. 23 Ginsberg v. Fifth Court of Appeals , 686 S.W.2d 105 (T ex. 1985) ........................................................................... 6 Hardy v. Riser , 309 F. Supp. 1234 ( N.D. Miss. 1970) ........................................................... 12 IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp. , 938 S.W.2d 440 (Tex . 1997) ..................................................................... 7, 20 In re Bell Hot Shot Co. , No. 14–13–00877–CV, 2014 WL 260116 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig. proceeding) (mem. op.) .......................................................................................... 16, 18, 24 In re Buch , 05-98-01665-CV, 1998 WL 908843 (Tex. App.—Dallas Dec. 31, 1998, no pet. ) ............................................ 15, 18 In re Caballero , 36 S.W.3d 143 (Tex. App.—Corpus Christi 2000, orig. proceeding) .............................................................................. 9, 11, 14, 16, 25v In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379 (T ex. 2005) ........................................................................... 7 In re Click , 442 S.W.3d 487 (Tex. App.—Corpus Christi 2014, or ig. proceeding) .................... 9, 11, 14, 18 In re Commitment of Hatchell , 343 S.W.3d 560 (Tex. App.—Beaumont 2011, orig. proceeding) ................. 8 In re CSX Corp. , 124 S.W.3d 149 (T ex. 2003) ........................................................................... 6 In re Dallas Group of Am., Inc. , 434 S.W.3d 647 (Tex. App.—Houston [1 st Dist.] 2014, no pet.) ............... 6, 8
In re H.E.B. Grocery Co., L.P. , 13-15-00254-CV, 2015 WL 3637775 (Tex. App.—Corpus Christi June 11, 2015, no pet.) ............... 6, 7, 8, 9, 18, 20 In re Lambdin , No. 07–03–0328–CV, 2003 WL 21981975 (Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding) .............................. 12
In re Le , 335 S.W.3d 808 (Tex. App.—Houston [ 14th Dist.] 2011, no pet.) .......... 7, 20 In re Odyssey Healthcare, Inc. , 310 S.W.3d 419 (T ex. 2010) ........................................................................... 6 In re Prudential Ins. Co. of Am. , 148 S.W.3d 124 (T ex. 2004) ........................................................................... 6 In re Sanders , 153 S.W.3d 54 (T ex. 2004) ............................................................................. 7 In re Ten Hagen Excavating, Inc. , 435 S.W.3d 859 (Tex. App.—Da llas 2014, no pe t.) ..............................passimvi In re Thuesen , 14-13-00174-CV, 2013 WL 1461790 (Tex. App.—Houston [14th Dist.] Ap r. 11, 2013, no pe t.) ................. 7, 17, 24 In re Transwestern Publ’g Co. , 96 S.W.3d 501 (Tex. App.—Fort Worth 2002, orig . proceeding) ......................... 9, 11, 14, 22 Marroni v. Matey , 82 F.R.D. 371 (E .D. Pa. 1979) ...................................................................... 16 Moore v. Calavar Corp. , 142 F.R.D. 134 (W .D. La. 1992) ................................................................... 25 Sadler v. Acker , 263 F.R.D. 333 (M .D. La. 2009) ................................................................... 23 Schlagenhauf v. Holder , 379 U.S. 104 (1 964)................................................................................passim Sherwood Lane Associates v. O'Neill , 782 S.W.2d 942 (Tex. App.—Houston [1 st Dist.] 1990, no writ) ................ 23 Stinchcomb v. United States , 132 F.R.D. 29 (E.D . Pa. 1990) ...................................................................... 12 Storms v. Lowe’s Home Centers, Inc. , 211 F.R.D. 296 (W.D. Va. 2002) ............................................................ 29, 30 Teche Lines v. Boyette , 111 F.2d 579 (5th Ci r. Miss. 1940) ............................................................... 12 Walker v. Packer , 827 S.W.2d 833 (T ex. 1992) ........................................................................... 6 S TATUTES AND R ULES Tex. R. App. P. 52.3(k)(1) ....................................................................................... 20

Tex. R. Civ. P. 204.1 .................................................................................. 1, 8, 10, 11vii I SSUES P RESENTED 1. Good cause is required to compel an independent medical examination. To show good cause, the movant must seek the desired information through less intrusive means before co mpelling an examination. Plaintiff disclosed his medical records, a list of treating ph ysicians, and reports from expert witnesses; however, APS did not show any good cause and had not deposed Plaintiff’s treating physicians or any e xperts, or provided any evidence to the trial court that it exhausted less intrus ive means of discovery before moving to compel. Was it within the trial court’s broad discretion to deny APS’s motion to compel both an indepe ndent medical exam and a functional capacity exam?
2. Was APS legally entitled to compel Hewitt to submit to a functional capacity exam?1 I NTRODUCTION Near the inception of discovery and before any depositions were taken, Relator, Advanced Powder Solutions, Inc. (“APS”) demanded that Real Party in Interest, Tremaine Hewitt, undergo both an independent medical examination as well as a functional capacity evaluation by two of APS’s e xperts. Because courts protect an individual’s right to privacy, be fore a party can be compelled to undergo a medical examination—or in this case, both a me dical examination and a functional capacity evaluation—the party re questing that examination must show “good cause.” Tex. R. Civ. P. 204.1; Coates v. Whittington , 758 S.W.2d 749, 753 (Tex. 1988). In order to satisfy the good cause standard, a party seeking the examination must show, among other things, that the information sought cannot be obtained through means that are less intrus ive than the compelled examination.
Coates , 758 S.W.2d at 753. APS did not attemp t to show that it could not obtain information through less intrusive means, but rather, argued to the trial court as it does to this court, that good cause exists because “[t]here is nothing equitable about allowing one party’s expert ac cess to evidence while denying that opportunity to the other party.” Pet. fo r Mandamus, 4. This argument misses the point entirely, and fails to show any aspect of good cause. In order for APS to prevail here, it mu st establish that the trial court’s decision to deny its motion to compel was an abuse of discretion . This is a heavy2 burden that APS cannot meet, especially in light of the fact that APS’s failure to show good cause and only evidence to the trial court was a four-page motion citing only a single, non-binding case from the Dallas Court of Appeals. MR67-70. Additionally, APS’s arguments be low and on mandamus are simply conclusory allegations by the attorney. APS provides no evidence of why its experts cannot opine without an independe nt medical examination and a functional capacity exam—as most defens e experts do. Thus, the tria l court’s decision to deny APS’s motion to compel was proper because APS provided the trial court with no evidence to support its motion, and undeniab ly failed to show good cause. Further, APS has failed to provide case law show ing that it was entitled to compel a functional capacity exam.3 S TATEMENT OF F ACTS This case arises from a serious accident which occurred on August 28, 2013, wherein Tremaine Hewitt was working as an employee of APS. App. 1: Pl.’s First Am. Pet., ¶ 9. Hewitt was required to sta nd on a ladder in order to pour magnesium powder into a reactor. Id. While Hewitt was on the ladde r, another APS employee manipulated the reactor valves, which in turn caused a magnesium flash, knocking Hewitt off the ladder and setting him on fire. Id. Hewitt was burned severely, sustaining second and third degree burns ove r more than 22% of his body, as well as orthopedic injuries. Id. ; see also MR58-63 (photographs of Hewitt’s burn injuries). Because of his injuries, Hewi tt was eventually life-flighted from the hospital to a burn unit, and underwent multiple surgerie s while spending twentynine days in the hospital. Id. On March 20, 2015, Hewitt disclosed to APS that, among others, Angel Roman, M.D. and Kenneth McCoin, Ph.D. woul d testify as experts in this matter. MR7-8. Included in this disclosure wa s a 47-page report from Dr. Roman. MR11- 63. Dr. Roman’s report also contained a detailed 12-page su mmary of Hewitt’s medical records. MR18-30. In the same disclosure, Hewitt also provided Mr. McCoin’s report, an economist. MR64-66. McCoin’s report dealt only with Hewitt’s earning capacity (both past and future). MR64. Nowhere in McCoin’s4 report did McCoin state that his observati ons or conclusions were based on an inperson examination of Hewitt. MR64-66. Despite Hewitt’s disclosure s and without deposing a ny treating physicians or either expert, on May 7, 2015, APS moved to submit Hewitt to both an independent medical examination as we ll as a functional capacity evaluation. MR67-68. Mr. Hewitt received treatment fro m numerous healthcare providers as a result of his injuries. Before attempting to depose any of these doctors to ascertain information concerning Mr. Hewitt’s medi cal condition, APS filed a motion with the trial court demanding that Mr. He witt undergo an i ndependent medical examination (“IME”) as well as a f unctional capacity evaluation (“FCE”). Additionally, to date, APS has not deposed Dr. Roman nor Mr. McCoin. Thus, Hewitt objected to APS’s requested IME and the FCE, because APS did not seek less-intrusive means of obtaining information about Hewitt’s medical condition prior to seeking to compel Hewitt to submit to these examinations as is required by Texas law. Further, Hewitt ar gued APS failed to s how it was legally entitled to an FCE. Given, among other things, the early stat e of the case, the trial court had no indication that APS had complied with its obligation to first seek less intrusive means of obtaining medical information. T hus, the trial court reviewed the request5 for both an IME and a FCE and denied the requests. MR190. APS then filed the pending petition for a writ of mandamus. It should be noted that in its wr it for mandamus revi ew, APS addresses issues surrounding alleged entitlement to an IME. APS fails to fully address that it moved the trial court for an IME and FCE. APS does not provid e any case law to support that it is legally entitled to an FCE, because it cannot. APS cannot single out its request for the IME alone for analysis of an abuse of discretion. These were not separate motions, but a single reque st coupling both exams together as “physical examinations.” MR67-70. This re quest, which was denied is the basis of this mandamus proceeding.6 A RGUMENT I. Applicable Legal Standards A. Mandamus “Mandamus relief is available when a trial court has committed an abuse of its discretion for which there is no adequate remedy by appeal.” In re Dallas Group of Am., Inc. , 434 S.W.3d 647, 650 (Tex. App. —Houston [1st Dist.] 2014, no pet.) (citing In re Odyssey Healthcare, Inc. , 310 S.W.3d 419, 422 (Tex. 2010)). See also In re Ten Hagen Excavating, Inc. , 435 S.W.3d 859, 863 (Tex. App.— Dallas 2014, no pet.) (citing CSR Ltd. v. Link , 925 S.W.2d 591, 596 (Tex. 1996)) (“Mandamus is an extraordinary reme dy that is available only in limited circumstances.”); Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (same); In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135-36 (Tex. 2004) (same); In re H.E.B. Grocery Co., L.P. , 13-15-00254-CV, 2015 WL 3637775, at *1 (Tex. App.—Corpus Christi June 11, 2015, no pet.) (same) . Additionally, the “heavy burden” lies with the relator to establis h both that the trial court abused its discretion and that there is no adequate remedy by appeal. In re CSX Corp. , 124 S.W.3d 149, 151 (Tex. 2003).
B. Abuse of Discretion “The scope of discovery largely rests wi thin the discretion of the trial court.” Ten Hagen , 435 S.W.3d at 865 (citing Ginsberg v. Fifth Court of Appeals , 6867 S.W.2d 105, 108 (Tex. 1985)). Thus, a trial court only “cl early abuses its discretion if it reaches a decision that is so arb itrary and unreasonable that it amounts to a clear and prejudicial error of law, or if it clearly fails to anal yze the law correctly or apply the law correctly to the facts.” H.E.B. Grocery , 2015 WL 3637775, at *1 (citing In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005)). See also In re Thuesen , 14-13-00174-CV, 2013 WL 1461790, at *2 (Tex. App.— Houston [14th Dist.] Apr. 11, 2013, no pet.) (same). Additionally, “[a] trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports the trial court’s decision.” In re Le , 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp. , 938 S.W.2d 440, 445 (Tex. 1997)). Thus, “In determining whethe r the trial court clearly abused its discretion, [the reviewing c ourt] may not substitute [its] judgment for that of the trial court.” Id. (citing In re Sanders , 153 S.W.3d 54, 56 (Tex. 2004)). See also Thuesen , 2013 WL 1461790, at *2 (“When review ing the trial court’s decision for an abuse of discretion, we may not substitute our judgment for that of the trial court with respect to the resolution of f actual issues or matters committed to the trial court’s discretion.”); Ten Hagen , 435 S.W.3d at 865 (“In considering whether a trial court has clearly abused its discreti on with regard to a discovery order, the reviewing court may not substitute its judg ment for that of the trial court.”).8 In other words, “Even if the reviewi ng court would have decided the issue differently, it cannot disturb the trial c ourt’s decision unless it is shown to be arbitrary and unreasonable.” Walker , 827 S.W.2d at 839–40. Instead, the “relator must establish that the trial court co uld reasonably have reached only one decision.” Ten Hagen , 435 S.W.3d at 866. C. Compelled Independent Me dical Examinations “Rule 204.1(c) of the Te xas Rules of Civil Procedure does not grant an automatic right to obtain a physical or mental examination.” 1 Ten Hagen , 435 S.W.3d at 866. Instead, “there must be great er showing of need to obtain a physical or mental examination than to obtain other sorts of discovery.” Id. (citing Schlagenhauf v. Holder , 379 U.S. 104, 118 (1964)); see also H.E.B. Grocery , 2015 WL 3637775, at *3 (same). Thus, to compel an independent exam ination, “[t]he party seeking the examination must show both (1) good caus e and (2) that the mental or physical condition of a party is in controversy.” H.E.B. Grocery , 2015 WL 3637775, at *2 (citing Tex. R. Civ. P. 204.1(c)(1); Coates , 758 S.W.2d at 752; Ten Hagen , 435 S.W.3d at 866; In re Dallas Group , 434 S.W.3d at 651; In re Commitment of Hatchell , 343 S.W.3d 560, 562-63 (Tex . App.—Beaumont 2011, orig. proceeding)). “These requirements may not be met with ‘concluso ry allegations’ in

1 Clearly APS’s contention that motions to co mpel a physical examination are routine is erroneous and misleading. See Pet. for Mandamus, 4.9 the movant’s pleadings or by “m ere relevance to the case.” Id. (citing Coates , 758 S.W.2d at 751; In re Click , 442 S.W.3d 487, 491 (Tex. App.—Corpus Christi 2014, orig. proceeding); In re Transwestern Publ’g Co. , 96 S.W.3d 501, 505 (Tex. App.—Fort Worth 2002, orig. proceeding)). “The ‘good cause’ element requires a bala ncing of the competing interests of the party’s right of privacy and the movant’s right to a fair trial.” H.E.B. Grocery , 2015 WL 3637775, at *3 (citing Coates , 758 S.W.2d at 753; In re Click , 442 S.W.3d at 491). Coates —the leading Texas Supreme Court opinion on this issue— lays forth the following three prongs that mu st be satisfied to show good cause: (1) the examination is relevant to issues that are genuinely in controversy in the case and the examination would produce, or woul d likely lead to, rele vant evidence; (2) a reasonable nexus exists between th e condition in controversy and the examination sought; and (3) it is not po ssible to obtain the desired information through means that are less intrusiv e than a compelled examination. Coates , 758 S.W.2d at 751. See also In re Transwestern Publ’g , 96 S.W.3d at 505; In re Caballero , 36 S.W.3d 143, 144 (Tex. A pp.—Corpus Christi 2000, orig. proceeding). Thus, “the ‘good-cause requir ement is not a mere formality, but is a plainly expressed limitation on the use of that Rule.’” Ten Hagen , 435 S.W.3d at 868 (quoting Schlagenhauf , 379 U.S. at 117-18).10 While Texas case law is somewhat sp arse when it comes to Rule 204.1, federal cases provide helpful analysis. Ten Hagen , 435 S.W.3d at 868 n.1 (citing
Coates , 758 S.W.2d at 751) (“The Texas S upreme Court has concluded that because the Texas rule governing mental a nd physical examinations was originally derived from Rule 35 of th e Federal Rules of Civil Procedure, federal courts’ construction of Rule 35 is helpful to an an alysis of the Texas ru le.”). Thus, federal decisions will be referenced throughout this response.
II. The trial court properly exercised it s discretion when it denied APS’s motion to compel both an inde pendent medical examination and a functional capacity evaluation. The central issue on mandamus is wh ether the trial court abused its discretion when it denied APS’s motion to compel examination requested by APS which included an IME coupled with a FC E. Plaintiff argued below, and does so again, that an IME should be denied b ecause APS has failed to show good cause, and that APS was not entitled to a FCE. T hus, Plaintiff will not address whether his injuries are in controversy. But as this Cour t is aware, even if a party’s injuries are in controversy, this alone is not “enough to compel a physical examination under Rule 204.1. Rule 204.1 also requires that the trial court find ‘good cause’ for the examination.” Ten Hagen , 435 S.W.3d at 867 (citing Tex. R. Civ. P. 204.1(c)). “The ‘in controversy’ and ‘good cau se’ requirements imposed by Rule 204.1 are the tools courts use in balancing the respective rights of the parties to privacy11 and to a fair trial.” Id. But “these two requirement s are not met ‘by mere conclusory allegations of the pleadings -nor by mere releva nce to the case.’” Id. (quoting Coates , 758 S.W.2d at 751); see also Schlagenhauf , 379 U.S. at 117-18. This is precisely where APS failed. While whether or not Plaintiff’s injuries are “in controversy” has not been contes ted, APS failed to me et its “affirmative burden” to prove to the Trial court that “good cause” exists to perform not only one, but two independent examinations. See Tex. R. Civ. P. 204.1(c); Coates , 758 S.W.2d at 751. “In the absence of an affi rmative showing of both prongs of the test, a trial court may not order an examination.” Ten Hagen , 435 S.W.3d at 866 (citing Coates , 758 S.W.2d at 751). Thus, the Trial court did not abuse its discretion because APS did not make an affirmative showing of “good cause.” As mentioned above, the following three prongs must be satisfied to show good cause: (1) the examination is relevant to issues that are genuinely in controversy in the case a nd the examination would produce, or would likely lead to, relevant evidence; (2) a reasonable nexus exists between the condition in controversy and the examinat ion sought; and (3) it is not possible to obtain the desired information through means that are less intrusive than a compelled examination. Coates , 758 S.W.2d at 751. See also In re Transwestern Publ’g , 96 S.W.3d at 505; In re Caballero , 36 S.W.3d at 144; In re Click , 442 S.W.3d at 491.12 Here, while APS never showed to the trial court what relevant evidence would come from the examinations sought , more importantly—and dispositive both here and to the Trial court—is the fa ct that APS has not shown the court it is impossible to obtain the desired informati on through less intrusive means. In fact, APS had not deposed any of Plaintiff’s tr eating physicians or experts. This fact alone establishes that the trial c ourt did not abuse its discretion. But even if this Court disagrees, the tr ial court still has the discretion to deny an independent medical examination ev en when good cause is established. See Stinchcomb v. United States , 132 F.R.D. 29, 30 (E.D. Pa. 1990) (“Even when good cause is shown, whether to order a pr oposed examination is committed to the discretion of the court.”); Hardy v. Riser , 309 F. Supp. 1234, 1241 (N.D. Miss. 1970) (citing Teche Lines v. Boyette , 111 F.2d 579 (5th Cir. Miss. 1940)) (“Even when the ‘good cause’ and ‘in controversy’ requirements are met, it is still in the sound discretion of the trial court wh ether to order the examination.”).
Even Ten Hagen —the sole case APS relied on in its motion to compel— acknowledges that “the ordinary meaning of the language of Rule 204.1 suggests that the trial court is vested with disc retion in determining whether to grant a physical or mental examination under Rule 204.1.” Ten Hagen , 435 S.W.3d at 866. See also In re Lambdin , No. 07–03–0328–CV, 2003 WL 21981975, at *4 (Tex. App.—Amarillo Aug. 20, 2003, orig. proceed ing) (“It is logical to construe the13 word ‘may’ as vesting the trial court with some range of permissiveness or discretion.”). Thus, APS made no persuasive argu ment to the Trial court—and no persuasive argument here—to justify an independent medical examination, let alone establish that the trial court abused its discretion. A. APS did not provide the trial court with evidence that an independent medical examinatio n or functional capacity evaluation would provide rele vant, discoverable evidence. APS never once showed the trial cour t what relevant evidence it hoped to gain from forcing Plaintiff to submit to an IME or FCE. In fact, the only arguments APS made were (1) “As the examinations sought by Defendant are not intrusive, invasive, or unnecessarily physically unc omfortable, they should be allowed,” and (2) “To hold otherwise woul d deprive Defendant the righ t to explore and develop evidence that supports theories that contra dict the theories espoused by Plaintiff’s retained experts and thus, deprive Defenda nt the right to a fair trial.” MR70. These statements are nothing more than “mere conclusory allegations” and do not establish this first prong. Ten Hagen , 435 S.W.3d at 867 (quoting Coates , 758 S.W.2d at 751) (holding th at good cause is “not met ‘by mere conclusory allegations of the pleadings-nor by mere relevance to the case.’”); see also Schlagenhauf , 379 U.S. at 117-18. Thus, the tr ial court was well within its discretion to deny APS’s motion to compel.14 But even if this Court believes that APS satisfied the first prong, the trial court still did not abuse its discretion becau se “[a] court is not required or even permitted to order an examination simply because it finds the examination will produce relevant evidence.” Ten Hagen , 435 S.W.3d at 869 (citing Schlagenhauf , 379 U.S. at 117-18). Additionally, “[t]he ‘good cause’ requirement of Rule 204.1 would be meaningless if mere relevance alone sufficed to establish good cause.” Id. (citing Schlagenhauf , 379 U.S. at 117-18).
B. While there may be a nexus between Plaintiff’s injuries and an independent medical examination, th is prong alone is insufficient to support a finding that the trial court abused its discretion. Similarly, APS’s nexus arguments ar e equally illogical. For example, APS states that “it is no surprise that Plaint iff” did not challenge the relevant evidence prong and the nexus prong. Pet. for Ma ndamus, 6-7. This statement misses the point. It does not matter whether or not APS can prove relevant evidence or nexus if it cannot show it could not obtain de sired information through less intrusive forms of discovery. See Coates , 758 S.W.2d at 751 (all three prongs required to show good cause); In re Transwestern Publ’g Co. , 96 S.W.3d at 505 (same); In re Caballero , 36 S.W.3d at 144 (same); In re Click , 442 S.W.3d at 491 (same). To put it simply, the test for good cause isn’t a 1 out of 3 test, it isn’t even a 2 out of 3 test. To show good cause, APS had to show the trial court that it satisfied15 all three prongs. It didn’t do so in its mo tion to compel, and it didn’t do so here on mandamus. Thus, the trial court was within its discretion to deny APS’s motion. C. APS must seek to obtain the desired information through less intrusive forms of discovery be fore resorting to a compelled medical examination. Plaintiff argued in his response to A PS’s motion to compel that APS must seek the desired information through less intrusive forms of discovery before the trial court could grant APS’s motion. MR140 (“The same information sought by Defendant in its proposed examinations can be obtained through less intrusive means,” and “Defendant’s experts are fr ee to review the testing and medical records utilized by Plaintiff’s physicians in forming their opinions and diagnoses and conduct their own interpretations.”). Exhausting less intrusive discovery methods to obtain the desired information is a well-established prong of the good cause analysis. “The final element of good cause requires that it not be possible to obtain the information sought by less intrusive means and that ab sent the examination the relator will not be able to obtain a fair trial.” Ten Hagen , 435 S.W.3d at 869 (citing In re Buch , 05- 98-01665-CV, 1998 WL 90884 3, at *3 (Tex. App.—Dallas Dec. 31, 1998, no pet.). See also MR69 (APS acknowledging it must show the trial court that it is not possible to obtain the same informa tion through less intrusive means).16 Additionally, Ten Hagen —the only case APS cited to in its motion to compel—lists numerous other discovery met hods that Texas courts have identified that are less intrusive means of seeking the desired information. For example, “deposing the opposing party’s doctors and attempting to obtain copies of medical records.” 435 S.W.3d at 870 (citing In re Caballero , 36 S.W.3d at 145). The movant may also rely “on existing expert w itness reports already filed in the case,” as most defense experts do. Id. (citing In re Bell Hot Shot Co. , No. 14–13–00877– CV, 2014 WL 260116, at *2 (Tex. App.—Housto n [14th Dist.] Jan. 9, 2014, orig. proceeding) (mem. op.)). Likewise, in Marroni v. Matey , plaintiffs sought an independent examination of the defendant. 82 F.R.D. 371, 372 (E.D. Pa. 1979). The court noted that “[o]ne factor that is relevant to the determination of ‘good cause’ is the possibility of obtaining the desired info rmation by other means.” Id. (citing Schlagenhauf , 379 U.S. at 118). The court denied the plainti ffs’ request for independent examination because the “[p]laintiffs have made no s howing that the information they seek cannot be obtained by other discovery techniques.” Id. The court went on to state they it must deny the motion “[u]ntil othe r methods are attempted,” and that the defendant’s “privacy interests require, at a minimum, that less intrusive methods of discovery first be explored.” Id.17 Similarly, in In re Thuesen , the court acknowledged that the relator was “entitled to seek discovery from their identified medical providers.” 2013 WL 1461790, at *3. However, the c ourt held that the relator “ha[d] not established that discovery from the identified medical professional will be insufficient,” and that “[t]he privacy interests of the real party plaintiffs require[d] relator to exhaust less intrusive means of discovery before seek ing compulsory mental examinations.” Id. (citing Coates , 758 S.W.2d at 753). Here, in light of the well-settled case law in this area, APS understandably failed to show the trial court that it ex hausted less intrusive discovery measures because APS had not deposed Plaintiff’ s treating physicians, and has still not deposed Plaintiff’s experts. Additiona lly, APS gave no reason why the medical records and expert reports provided are inadequate to obtain the information APS sought. Thus, it was within the trial co urt’s discretion to deny APS’s motion to compel. Moreover, the trial court’s decision was within its discretion for the following additional three reasons: (1) Comp elled medical examinations intrude on the injured party’s privacy; (2) APS did not provide the trial court with any indication of what it was looking for that could not be determ ined through less intrusive discovery; and (3) good cause is al ways required before a court orders an independent medical examination.18 1. Compelled medical examinations intrude on the injured party’s privacy. Plaintiff’s right of privacy must be ba lanced with APS’s de sire for additional discovery. Texas courts have repeatedly recognized this balance. “Good cause requires a balancing of the co mpeting interests of the pa rty’s right of privacy and the movant’s right to a fair trial.” In re Bell Hot Shot Co. , 2014 WL 260116, at *2 (citing Coates , 758 S.W.2d at 753); see also Ten Hagen , 435 S.W.3d at 866-67) (quoting In re Buch , 1998 WL 908843, at *3) (“‘When a party’s mental or physical condition is implicated, the court must bala nce the party’s right of privacy and the movant’s right to a fair trial.’”); H.E.B. Grocery , 2015 WL 3637775, at *3 (citing
Coates , 758 S.W.2d at 753; In re Click , 442 S.W.3d at 491) (same). Despite the well-settled fact that i ndependent medical examinations are intrusive, in its motion to compel, APS makes the erroneous argument that “[a]s the examinations sought by De fendant are not intrusive, invasive, or unnecessarily physically uncomfortable, they should be allowed.” MR70. APS continues this erroneous argument in its petition for mandamus by statin g that “it is well settled that where the intended examination is not intrusive, invasive or unnecessarily physically uncomfortable, parties are permitt ed to explore matters not covered by the opposing party’s examinations, make their own observations, and attempt to discover facts that may contradict the opinions of the opposing party’s expert witnesses.” Pet. fo r Mandamus, P.8.19 The only case APS uses to support this contention is once again Ten Hagen

. See MR69-70 (APS relying on Ten Hagen to erroneously argue that the requested examinations are not intrusive). While Ten Hagen does state that “where the intended examination is not intrusive, invasive or unnecessarily physically uncomfortable, parties are permitted to explore matters not covered by the opposing party’s examinati ons, make their own observations, and attempt to discover facts that may contradict the opinions of the opposing party’s expert witnesses,” 435 S.W.3d at 870, as menti oned above, the types of examinations requested by APS are intrusive under Texas law. In fact, Ten Hagen states that “an order requiring a medical examination is an intrusive order.” 435 S.W.3d at 866. Thus, the one sentence in Ten Hagen that APS relies on is irrelevant and in no way establishes that the trial court abused its discretion. Furthermore, APS is requesting not on ly an IME, but also a functional capacity evaluation which necessarily goes beyond the examination typically included with an IME. A functional capac ity evaluation requires an individual to submit to hours or days of physical tes ting and strenuous activities, almost exclusively for purposes of Workers’ Co mpensation disability determination. APS has failed to give any explan ation at all as to why Hewitt, an employee of a nonsubscriber to Texas Worker s’ Compensation, should be compelled to submit to a FCE. App. 1: Pl.’s First Am. Pet., ¶ 920 Additionally, even if there was a conf lict in the law in Texas about whether an independent medical examination was intrusive—which there is not—this Court has held that “[a] trial court does not abus e its discretion if it bases its decision on conflicting evidence and so me evidence supports the trial court’s decision.” In re
Le , 335 S.W.3d at 813 (citing IKB Indus. , 938 S.W.2d at 445). In sum, Texas law establishes that i ndependent medical examinations are an invasion of privacy. But even if this Co urt agrees with APS’s argument that the examinations sought are somehow not inva sive, at a minimum, the trial court did not abuse its discretion because of the conflict in the law. 2. APS did not provide the trial court with any indication of what it was looking for that could not be determined through less intrusive discovery. Next, APS did not provide the trial c ourt with any details regarding what information could not be obtained by me thods other than an independent medical examination. The burden is on APS to esta blish the record to both the trial court and to this court on mandamus. See H.E.B. Grocery , 2015 WL 3637775, at *3 (citing Tex. R. App. P. 52.3(k)(1), 52.7(a); Walker , 827 S.W.2d at 837). APS failed to carry its burden. For example, APS only made the follo wing arguments relating—to use the word loosely—to why its experts needed to examine Plaintiff:

 APS’s experts “would be preclude d from examining matters not covered by Plaintiff’s experts.” MR180.21  Plaintiff’s experts “would ha ve a benefit not afforded Defendant’s retained expert and that such benefit would bolster his retained expert’s relia bility as compared to any controverting expert designa ted by Defendant.” Pet. for Mandamus, 3-4.

 The IME “is needed for Defendant to fairly defend itself against damage claims that Plaintiff intends to prove through its own medical expert who has access to a physical examination.” Pet. for Mandamus, 4.

 Dr. Roman will look more credib le “[b]ecause—as made clear in his expert disclosure—Plain tiff’s medical expert will be telling the jury that his opinions are based upon his own medical examination of Plaintiff—something Defendant’s expert will not be able to do if the order is allowed to stand.” Pet. for Mandamus, 5.

 And “that ‘the information’ sought is not simply the opinions of Plaintiff’s treating physicians, or even his own retained medical expert. Instead, “the informati on” sought—needed, in fact—is a first-hand medical examina tion upon which Defendant’s retained expert can base his opinions—just like Plaintiff’s retained expert’s intends to do.” Pet. for Mandamus, 7. These arguments fail for multiple reasons . First, these are nothing more than conclusory allegations, which are not enough to establish good cause. Ten Hagen , 435 S.W.3d at 867 (“these two requirement s are not met ‘by mere conclusory allegations of the pleadings-nor by mere relevance to the case.’”) Id. (quoting
Coates , 758 S.W.2d at 751); see also Schlagenhauf , 379 U.S. at 117-18. Second, Dr. Roman’s report was not simply ba sed on his physical examination of Mr. Hewitt. Instead, Dr. Roman performed a comprehensive review of Mr. Hewitt’s medical records and also used his own training, knowledge, and expertise as it relates to reviewing the medical records. See MR18-30. Third, APS’s own experts22 provide no affidavits or any other explan ation as to why they cannot base their opinions on the medical records provided —as most defense experts do. Instead, APS merely states for the court th at basically, it’s just not fair. Thus, it was within the trial court’ s discretion to deny APS’s motion to compel as APS provided the trial court with nothing more than conclusory allegations. 3. Good cause is always required before a court orders an independent medical examination. Finally, APS’s failure to establish th at it sought less intrusive discovery before seeking to compel an independent examination is fatal because good cause is always required under Rule 204.1. APS argued in its motion to compel that “[a] Plaintiff in a negligence action who clai ms physical injury as a result of a Defendant’s negligence places his physical injury clearly in controversy and provides the Defendant with good cause to determine the existence and extent of such asserted injury simply by seeking recover for the alleged physical injury.” MR68. This is far from true. For example, in In re Transwestern Pub. Co. , 96 S.W.3d at 506, the court held that the designation of an expert was insufficient to meet the good cause requirement under Rule 204.1. Similarly, in Ten Hagen , 435 S.W.3d at 862-63— the case APS relies on to make this erro neous argument—the plaintiff designated his treating physician as a medical expert to testify at trial. Despite this, the court23 held that the clear language of Rule 204. 1 required the movant to also show good cause under the three-part test. Id. at 868-70. Additionally, in Sherwood Lane Associates v. O'Neill , 782 S.W.2d 942, 943 (Tex. App.—Houston [1st Dist.] 1990, no writ) the court allowed an independent medical examination precisely because defendants were unable to obtain all of the information necessary throug h less intrusive means, thus satisfying the third prong. Specifically, the minor plaintiff in Sherwood was being treated by two separate psychologists, and during th e discovery period, the de fendants were unable to obtain the treatment notes of one of th e plaintiff’s treating physicians and designated experts. The court in Sherwood was clear that the opinion was based on the “facts and circumstances” of that case. Id. at 945. The federal courts 2 also recognize that good cause may exist in the following circumstances. First, good cause may exis t when the movant can prove that deposing other witnesse s would not provide the information sought. Gavin v. Hilton Worldwide, Inc. , 291 F.R.D. 161, 165 (N.D. Cal. 2013) (holding that good cause existed when defendant could not “d epose any of [plaintiff’s] treaters in order to ascertain her continuing emoti onal distress”). Sec ond, good cause may exist when there is a substantial tim e between the examination and trial. Sadler v.

2 As mentioned previously, Texas courts look to the federal courts analyzing Rule 35 because Rule 35 contains the same “good cause” requirement as Rule 2014.1. See Ten Hagen , 435 S.W.3d at 868.24 Acker , 263 F.R.D. 333, 336 (M.D. La. 2009) ( holding good cause may be shown when a “‘substantial time lag’ will occur between the initial examinations . . . and the time of trial”). Third, good cause ma y exist when the party’s health changes significantly. Diaz v. Con-Way Truckload, Inc. , 279 F.R.D. 412, 424 (S.D. Tex. 2012) (holding that when the plain tiff experienced “significant changed circumstance [in health] constituting su fficient ‘good cause’ to warrant an independent eye examination”). In contrast, APS’s motion to compel is much more similar to the many cases where courts have held good cause did not exist. For example, in In re Bell Hot Shot Co. , a plaintiff submitted to an evaluation related to a brain injury. 2014 WL 260116, at *1. The evaluation indicated that he was not impaired as a result of the accident. Id. Yet, the defendant requested th at the plaintiff be compelled to undergo another medical examination. Id. The court found no abuse of discretion in the trial court’s denial of another exam. Id. at *2. Specifically, looking at the third element in the Coates analysis, the court found that there was already an exam that undermined the plaintiff’s claim that he suffers from mental injuries such that there was not good cause for another exam. Id. Additionally, in Thuesen , the court held that th ere was no good cause when the relator did “not establish that discovery from the identified medical professional will be insuff icient,” and the relator wa s required “to exhaust less25 intrusive means of discovery before seek ing compulsory mental examinations.” 2013 WL 1461790, at *3. See also Caballero , 36 S.W.3d at 143 (no good cause when movant did not depose physicians, obt ain copies of medical records, and failed to articulate why the further examination would be relevant); Moore v. Calavar Corp. , 142 F.R.D. 134, 135-36 (W.D. La. 199 2) (holding that defendant failed to show good cause for second ex amination when no allegations “of a change in the plaintiff’s complaints or in the clinical findings,” and that while the defendant “is equally entitled to be well prepared to address the issue of the plaintiff’s physical condition and need fo r surgery at trial, there had been no showing to date that a second physical ex amination . . . would shed any clarifying light upon the dispute”); Acosta v. Tenneco Oil Co. , 913 F.2d 205, 209 (5th Cir. 1990) (holding that an independent ex amination was improper because the defendant “already ha[d] the informa tion it seeks . . . without a repetitive examination” when the defendant was supp lied with a copy of the test performed by plaintiff’s expert, plaintiff’s expert’s report, and defendant had already deposed plaintiff’s expert as well as plaintiff”). APS provided the trial court with no evidence to suggest that even one of these situations is present in this case. In fact, as noted above, many courts have repeatedly held that good cause does no t exist when the moving party does not26 exhaust less intrusive methods, as APS faile d to do here. Thus, it was within the trial court’s discretion to deny APS’s motion.
D. APS failed at the trial court level, as well as in their writ for mandamus, to show they are enti tled to a functional capacity exam and the trial court’s deni al of such was an abuse of discretion. As noted above, the basis of this mandamus proceeding is APS’s request for an IME (by a Doctor retained by the Defenda nt) coupled with an FCE. It should be noted that in their writ for mandamus, APS fails to fully address that it moved the trial court for an IME and a FCE. Notably, the Courts do not force Plaintiffs to undergo FCE’s. APS only addresses issues as to an IME in the appeal, but does not provide case law showing that it is lega lly entitled to compel a FCE. In fact, at the trial court level the only support prov ided was a 2011 online article titled “fact sheet” of “occupational therapy’s role in functional capacity evaluation.” MR 184- 85. APS fails throughout its motion to cite any good cause for either examination other than the conclusory allegations of their attorney. Further, APS cannot single out its request for the IME alone for analysis of an abuse of discretion standard for this mandamus proceeding. This is because the trial court denied APS’s request for “p hysical examinations” which included not only an IME but also an FCE. MR67-70. APS did not file separate motions requesting each of these tests but a single request coupling both exams together as “physical examinations.” Id . This request, which was denied is the basis of this27 mandamus proceeding. The trial Court di d not abuse it’s discretion for such an overbroad and intrusive examination, w ithout any showing of good cause or the slightest attempt to obtain the information from less intrusive means prior to requesting the Court to compel. Surely, APS’s failure to a ddress half of the relief re quested made the basis of this mandamus proceeding cannot be found to be a sufficient showing of an abuse of discretion. Simply put, APS cannot isol ate individual parts of its single request made for multiple examinations. Silence as to half of APS’s request for an intrusive FCE cannot be held as sufficien t in showing an abuse of discretion. As APS has failed to fully detail that th ey were legally entitled to a FCE, and that the trial court abused its discre tion in denying “physical examinations” requested, which included the requested FCE, the Court should find that APS has failed to meet their heavy burden showi ng an abuse of discretion has occurred.
E. Even Ten Hagen —the sole case cited by APS in its motion to compel—supports the trial court’s decision. As noted repeatedly in this response, APS only relied on the Ten Hagen case in its motion to compel. MR67-70. However, Ten Hagen is easily distinguishable. For example, in Ten Hagen , the court was provided w ith evidence that (1) the plaintiff’s expert’s notes and report were incomplete, 435 S.W.3d at 870; (2) the defense expert “did not feel confident in relying on [the plaintiff’s expert’s] examination,” Id. ; (3) the plaintiff’s expert’s report was the first indication of any28 sensory loss despite pr evious examinations, Id. ; (4) the plaintiff’s expert’s opinions “did not ‘fit together’ and we re not ‘all reasonably consider ed to be sequella of the motor vehicle collision.’” Id. Additionally, the court noted that “[t] he facts of this case [were] unique” because the defendant “suffered the untim ely death of its sole expert witness shortly before the close of the disc overy period after the treating physician submitted a report that suggested even he could not confidently assess the full extent of [plaintiff’s] future need for additional treatment.” Id. The court also noted that the future damages could not be assessed “by simple resort to review of the medical records . . . , examination of the injured appendage during a deposition . . . , or furt her development of [plaintiff’s expert’s] opinion during a deposition.” Id. at 870-71. Here, none of the evidence listed by the Ten Hagen court were present. APS has never provided evidence that Dr. Roman’s report was incomplete, that the defense experts were not confident relying on Dr. Roman’s report, that Dr. Roman’s report listed new injuries not prev iously addressed, or that Dr. Roman’s report “did not fit together .” In addition, APS has not shown how the numerous treating Doctors that have treated Plaintif f were incomplete in their own medical records, or that their retained Doctors are not confident in relying on the numerous treating physicians records. Likewise, none of APS’s experts have died during this29 case, and APS has provided no evidence or argument that its experts could not obtain the necessary information through a review of the medical records of treating Doctors or through depositions of the treating Doctors. Thus, Ten Hagen —the only case cited by APS in its motion to compel— supports the trial court’s finding that there was no good cause.
F. Any arguments made regarding Plaintiff’s economist Kenneth McCoin are irrelevant and misguided. Finally, the fact that APS references Mc Coin’s report at all is confusing and irrelevant because McCoin is an economis t and never examined Plaintiff to create his report. Thus, any expert hired by APS should not be required to examine Plaintiff to respond to McCoin’s report. Additionally, in Storms v. Lowe’s Home Centers, Inc. , the court addressed this very issue. 211 F.R.D. 296, 296-97 (W.D. Va. 2002). In Storms , the plaintiff was injured while shopping and sought damages for lost wages and earning capacity among other things. Id. at 296. To substantiate th ese claims, the plaintiff “retained an expert vocati onal rehabilitation counselor to opine on matters related to lost wages and lost earning capacity.” Id. The retained expert interviewed the plaintiff and reviewed records to issue a report. Id. at 296-97. In response, Lowe’s hired a vocational expert as well. Id. at 297. The plaintiff provided Lowe’s expert w ith a copy of the report, all of the relevant medical records, as well as all the other discoverable information30 requested, but declined to be in terviewed by the Lowe’s expert. Id. Additionally, at the time of the hearing, the pl aintiff had not yet been deposed. Id. With these facts in mind, the court held that an additional vocational examination was not appropriate under Rule 35, but went on to state that the defendant had all of the in formation it needed based on the plaintiff’s ability to work in the future. Id. at 298. The court reasoned that an additional examination under Rule 35 was not appropriate becaus e the “Plaintiff ha[d ] provided Lowe’s with a copy of all medical records, a co py of the report from his vocational expert, his tax records, and all other discove rable material requested by Lowe’s.” Id. The court also reasoned that Lowe’s still had the opportunity to depose the plaintiff and at the deposition “counsel [would] be able to examine the plain tiff on all matters relating to his functional capacity.” Id.
Storms is instructive here. In fact, un like the plaintiff’s expert in Storms , here, McCoin did not physi cally examine or meet with Mr. Hewitt to formulate economic opinions. Additionally, APS has been provided with all of the same information as the defendant in Storms . Thus, any arguments made by APS relating to McCoin’s report are irrelevant at best and instead support the trial court’s decision to deny APS’s motion to compel.31 C ONCLUSION The trial court made the right decisi on when it denied APS’s attempt to compel a medical exam. At a minimum, the trial cour t acted within its broad discretion and did not act arbitrarily or unreasonably when it made its factual determination that APS did not meet its burden on the good cause requirement to obtain two medical examinations.
P RAYER FOR R ELIEF The Court should deny APS’s Petition for Mandamus, set aside its stay order and allow the trial court to proceed as sche duled. Plaintiff requests all other relief to which he is justly entitled.32 Respectfully submitted,
A RNOLD & I TKIN , LLP By: /s/ J. Kyle Findley Kurt B. Arnold SBN: 24036150 karnold@arnolditkin.com J. Kyle Findley SBN: 24076382 kfindley@arnolditkin.com Kala Flittner Sellers SBN: 24087519 ksellers@arnolditkin.com 6009 Memorial Dr. Houston, TX 77007 (713) 222-3800 (713) 222-3850 (Fax) Counsel for Real Party in Interest, Tremaine Hewitt33 C ERTIFICATE OF S ERVICE I hereby certify that on October 30, 201 5, a true and correct copy of the above and foregoing Response to Petition for Writ of Ma ndamus was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered, otherwise by email, as follows: Donald M. Hudgins Michael D. Hudgins

Steven F. Hudgins The Hudgins Law Firm, A Professional Corporation 24 Greenway Plaza, Suite 2000 Houston, Texas 77046 Charles A. Sturm Sturm Law, PLLC 723 Main Street, Suite 330 Houston, Texas 77002 Attorneys for Relator, Advanced Powder Solutions, Inc. Honorable Kyle Carter 125 th District Court Harris County 201 Caroline, 10 th Floor

Houston, TX 77002

/s/ J. Kyle Findley J. Kyle Findley34 C ERTIFICATE OF C OMPLIANCE This brief complies with the type-volum e limitation of Tex. R. App. P. 9.4 because it contains 8,467 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(2)(B).35 A PPENDIX T AB D OCUMENT 1. Plaintiff’s First Amended Petition

# Tab 1CAUSE NO. 2014-16020 Tremaine Hewitt § IN THE DISTRICT COURT OF § Plaintiff § § v. § HARRIS COUNTY, TEXAS § Advanced Powder Solutions, Inc., § Dean Baker, and Martha E. Baker § § Defendants. § 125 th JUDICIAL DISTRICT Plaintiff’s First Amended Petition
TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff Tremaine Hewitt, complaining of Advanced Powder Solutions, Inc., Dean Baker, and Martha E. Baker, respectfully showing the Court the following:
I. Nature of Action
1. This is an action arising under th e common law of the State of Texas.
II. Discovery 2. Plaintiff intends to conduct discover y under Discovery Level 2 pursuant to
T EX

. R. C IV

. P. 190.3.
III. Jurisdiction and Venue 3. The Court has jurisdiction over this case because Plaintiff seeks damages well within the jurisdictional limits of the Cour t, and Defendants ar e citizens of Texas. 4. Venue is proper in Harris County becaus e a substantial part of the events or omissions underlying Plaintiffs’ cl aims occurred in Harris County. See T EX

. C IV

. P RAC

. & 9/28/2015 11:53:01 AM Chris Daniel - District Clerk Harris County

Envelope No. 7122087 By: Julio Garcia Filed: 9/28/2015 11:53:01 AM2 R EM

. C ODE 15.002(a)(1). Further Defendants reside in Harris County. T EX . C IV

. P RAC

. &
R EM

. C ODE 15.002(a)(2). IV. Parties 5. Plaintiff is a resident of Texas. 6. Defendant, Advanced Powder Solutions, Inc. is a Texas company that has made an appearance in this case. 7. Defendant, Dean Baker, is a Texas citizen and may be served through personal delivery to 14102 Halprin Creek Drive, Cypres s, TX, or wherever he may be found. 8. Defendant, Martha E. Baker, is a Texas citizen and may be served through personal delivery to 14102 Halprin Creek Driv e, Cypress, TX, or wherever she may be found.
V. Facts 9. On or about August 28, 2013, Plainti ff was employed by Advanced Powder Solutions, Inc. (“APS”), a non-subscriber to Texas Workers’ Compensation. Plaintiff was working at APS’s facility in front of a reactor on a ladder when a co-worker began manipulating valves on the reactor. This cau sed a blast and caused Plaintiff to fall off the ladder and into a fire. Plainti ff suffered severe burns and orthop edic injuries as a result. Plaintiff had to be life-flighted from the scen e, and has already under gone multiple surgeries.
VI. Causes of Action Negligence and Gross Negligence 10. Plaintiff repeats and realleges each allegation contained above.3 11. Plaintiff sustained serious injuries because of Defend ants’ negligence and gross negligence eviden ced by Defendants’:

 Failure to properly train its employees;

 Failure to properly supervise its employees;

 Use of the reactor;

 Failure to have safe policies and procedur es for the work Plaintiff was doing when he suffered injuries;

 Failure to provide a safe work place;

 Other acts deemed negligen t and grossly negligent. 12. As a result of Defendants’ negligence and gross negligence, Plaintiff suffered severe physical injuries. Plaintiff is entitled to recover damages for his injuries. Defendants’ actions were done with a reckless disregard to a substantial risk of severe bodily injury. As such, Plaintiff is entitled to exemplary damages.
VII. Joint and/or Vicarious Liability 13. Plaintiff repeats and reallege s each allegation contained above. 14. For the following reasons based on information and belief, Defendant APS’s corporate form should be disregarded to hold Defendants Dean Baker and Martha E. Baker vicariously or jointly liable to Pl aintiff for APS’s wrongful conduct: a. APS is a mere sham, organi zed and operated by Dean Baker and Martha E. Baker in their indi vidual capacity to perpetrate fraud upon Plaintiff and potentially other unsuspecting persons. Defendants made mate rial representations to Plaintiff that were false when made and which Defendants knew were false or made recklessly, and/or4 Defendants had a duty to disclose but failed to disclose material facts to Plaintiff, knowing Plaintiff did not know and did not have an equal opportunity to discover those facts. Specifically, Defendants made misrepresentati ons and/or omissions about APS’s corporate structure and finances and made these material misrepresentations and/or omissions with the intent to induce Plaintiff to delay in asserti ng his negligence and gross negligence causes of action against Dean Baker and Martha E. Ba ker, individually. Plaintiff relied to his detriment on those misreprese ntations and/or omissions. b. Dean Baker and Martha E. Bake r are each the “alter ego” of APS and APS was and is organized and op erated as a mere tool and/or business conduit for the Baker Defendants’ personal benefit an d advantage. Dean Baker and Martha E. Baker, individually, have at all times exercised to tal dominion and control over A PS, and have exercised such control in a manner indistinguish able from his and her own person al affairs. Dean Baker and Martha E. Baker were the first and, Plaintiff be lieves, the only directors of APS. Dean Baker and Martha E. Baker own a majority of the st ocks issued and have maintained complete corporate ownership. Dean Bake r and Martha E. Baker have al so commingled their personal funds with corporate funds and have paid corporate debts with personal checks. c. Dean Baker and Martha E. Baker are using APS’s corporate fiction as a means of evading an existing legal obligation, na mely, civil liability for negligence and gross negligence that injured Plaintiff and caused Plaintiff to incur damages. d. Dean Baker, individually, inte ntionally operated and continues to operate APS with inadequate ca pitalization. Speci fically, APS operates its business with insufficient assets to satisfy potential debt s and liabilities associated with running its business. Because Dean Bake r operated and continues to ope rate APS with inadequate5 capitalization, equity dictates that Dean Baker, in his individual capacity, be held vicariously liable to Plaintiff for all of his damages alleged herein.
VIII. Statute of Limitations 15. Plaintiff repeats and reallege s each allegation contained above. 16. If Defendants assert statute of limitati ons as an affirmative defense to any of the causes of action asserted above, the affi rmative defense fails fo r one or more of the following reasons: 17. The applicable statute of limitations was tolled because Defendants fraudulently concealed facts pert aining to the true identities of the Defendants. Through no fault of Plaintiff’s, Defendants withheld do cuments evidencing APS’s corporate structure, financial information, and und ercapitalization until this m onth, September 2015, which was about eight months after Plain tiff’s most recent discovery reque st and only a few weeks after the two-year anniversary of the accident giving rise to this lawsuit. Defendants made material representations to Plaintiff that we re false when made an d which Defendants knew were false or made recklessly, a nd/or Defendants had a duty to disclose but failed to disclose material facts to Plaintiff, knowing Plain tiff did not know and di d not have an equal opportunity to discover those facts. Defendan ts made these material misrepresentations and/or omissions with the intent to induce Plai ntiff to delay in asserting his negligence and gross negligence causes of action against Dean Baker and Martha E. Baker, individually. Defendants had actual knowledge of their mi sconduct yet actively suppressed the truth to conceal it. Plaintiff exercised reasonable dili gence to discover the in formation Defendants were concealing by seeking such information thr ough his discovery requests in this lawsuit.6 Plaintiff reasonably relied on Defendants’ mi srepresentations and/or omissions to his detriment. 18. The applicable statute of limitations against Dean Baker a nd Martha E. Baker was tolled as of the date Plaintiff filed suit against APS because Dean Baker and Martha E. Baker are the alter ego of APS and are vicariously lia ble defendants. 19. The applicable statute of limitations was tolled for any and all periods of time that Dean Baker and/or Martha E. Baker we re absent from the State of Texas. Upon information and belief, Dean Baker and Martha E. Baker were absent from the state for a sufficient period of time during the limitations period to preclude any defense based on statute of limitations. 20. Defendants are equitably estopped fro m asserting a limitations defense to any of Plaintiff’s claims because Defendants, acting with actual or constructive knowledge of the facts regarding APS’s corporate structure and finances, materia lly misrepresented those facts to Plaintiff and/or concealed those facts from Pl aintiff with the intent to induce Plaintiff to rely on Defendants’ material misrepresentations and/or omi ssions and delay in filing suit against Dean Baker and Martha E. Baker, individually. Plaintiff neither had knowledge of the truth nor means of obtaining knowledge of the truth, and he relied on Defendants’ material misrepresentations and/or omissions to his detriment.
IX. Prayer 21. Plaintiff prays for relie f and judgment as follows: a. Compensatory damage s against each Defendant; b. Actual damages, such as past an d future economic damages, past and future medical bills, past and future pain and suffering, past and future7 impairment, past and future disfi gurement, past and future mental anguish; c. Consequential damages; d. Exemplary damages; e. Interest on damages (pre- and po st-judgment) in accordance with law; f. Such other and further relief as the Court may deem just and proper; g. Attorneys’ fees. Respectfully Submitted, ARNOLD & ITKIN LLP /s/ Kurt Arnold

_______________________________ Kurt B. Arnold SBN: 24036150 karnold@arnolditkin.com J. Kyle Findley SBN: 24076382 kfindley@arnolditkin.com Kala F. Sellers SBN: 24087519 ksellers@arnolditkin.com 6009 Memorial Drive Houston, Texas 77007 Tel: 713.222.3800 Fax: 713.222.3850 e-service@arnolditkin.com ATTORNEYS FOR PLAINTIFF8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record in ac cordance with the Texas Rules of Civil Procedure on this 28 th day of September, 2015. Steven F. Hudgins The Hudgins Law Firm, A Professional Corporation 24 Greenway Plaza, Suite 2000 Houston, Texas 77046 Counsel for Defendant Advanced Powder Solutions, Inc.

/s/ Kyle Findley J. Kyle Findley