Motion to Quash in JUANA LAGUNA, REGINO GONZALEZ, Sr., Joanna Gonzalez Acevedo VS. RAY FULP, III, DO, RAY FULP ORTHOPEDICS, PA, MARIA CAMACHO, MD, FRANCISCO TORRES, MD, ROBERT FOUNTILA, DO, RADIOLOGY & IMAGING OF SOUTH TEXAS, LLP, MCALLEN HOSPITALS, LP D/B/A MCALLEN MEDICAL CENTER| Trellis.Law

On March 05, 2013 a Party Discovery was filed involving a dispute between Acevedo, Joanna Gonzalez, Gonzalez, Regino, Sr., Laguna, Juana, and Camacho, Maria T., Md, Fountila, Robert C., Do, Fulp, Iii, Ray R., Do, Mcallen Hospitals, Lp D B A Mcallen Medical Center, Radiology & Imaging Of South Texas, Llp, Ray Fulp Orthopedics, Pa, Torres, Francisco, Md, for Injury or Damage - Medical Malpractice (OCA) in the District Court of Hidalgo County.

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Electronically Filed
1/12/2023 3:37 PM
Hidalgo County District Clerks
Reviewed By: Ryan Guajardo

CAUSE NO. C-0973-13-A

JUANA LAGUNA, Individually and § IN THE DISTRICT COURT OF
JOANNA GONZALEZ ACEVEDO, as §
Administrator of THE ESTATE OF §
REGINO GONZALEZ, JR., §
Plaintiffs §
vs. § HIDALGO COUNTY, TEXAS
§
RAY R. FULP, III, DO, §
RAY FULP ORTHOPEDICS, PA, §
ROBERT C. FOUNTILA, DO, §
Defendants § 92nd JUDICIAL DISTRICT

PLAINTIFFS’ MOTION TO QUASH DEFENDANT’S
NOTICE OF IN-PERSON DEPOSITION OF JOSEPH GHITIS, MD
&
TO PROCEED WITH DEPOSITION BY ZOOM

I. Summary

Defendants seek to depose Plaintiffs’ retained expert, Joseph Ghitis, MD,

in San Antonio, Texas. Plaintiffs have requested that the deposition take place via

videoconference, in accordance with the Texas Supreme Court’s most recent 59th

Emergency Order regarding the COVID-19 state of disaster. Counsel for

Defendant, ROBERT FOUNTILA, DO, refused. Accordingly, Plaintiffs object to the

object to the time and place designated for this oral deposition and, because it is

filed within three days after Defendants served their notice, this Court must stay

the deposition until this Court can consider the merits of this motion.

II. Undisputed Facts

1. On January 9, 2023, Defendants e-mailed Plaintiffs a document

entitled “Notice of Deposition of Joseph Ghitis, M.D.” (See Ex. A).

2. According to the notice, “the deposition will take place on Thursday,

March 23, 2023 at 9:00 a.m. at Koole Court Reporters, 8000 IH-10 West, Suite
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600, San Antonio, TX 78230 and will continue from day to day until the deposition

is completed.” Id.

3. Plaintiffs’ counsel immediately upon receipt of the Notice of

Deposition, e-mailed Defendants’ counsel and requested that the deposition take

place via “Zoom.” (See Ex. B).1

4. Defendants’ counsel refused. Id.

5. In a reply, Plaintiffs’ counsel specifically referenced the Texas

Supreme Court’s 59th Emergency Order of December 30, 2022, which provides:

6. Defendants’ counsel refused and instructed Plaintiffs’ counsel to “file

a motion with the Court” if he refused to comply. Id.

7. Plaintiffs’ counsel resides and works in Houston, Texas.

8. Plaintiffs’ counsel is 79 years old.

9. Plaintiffs’ counsel’s wife of 50 years of marriage, Linda Patchen is 76

years old, a breast-cancer survivor, and as the result of an automobile accident

suffered broken ribs with a collapsed lung lobes, requiring intubation with chest

tubes. Her lung capacity is impaired. She is high-risk for contracting COVID-19.

1
This Court should take judicial notice that “Zoom” is an internet-based videoconferencing platform. See
https://explore.zoom.us/en/products/meetings/ (last visited Jan. 11, 2023); Tex. R. Evid. 201(b) (“The court
may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”).
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Hidalgo County District Clerks
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10. Plaintiffs’ counsel seeks to conduct the deposition of Dr. Ghitis (and

the depositions of other expert witnesses) via videoconference in order to minimize

travel and in-person encounters to minimize the risk of exposing his wife to COVID.

11. Plaintiffs’ counsel is duty bound to be present with Plaintiffs’ experts

at in-person depositions. Requiring the witness to appear and be examined by

Defense counsel with Plaintiffs’ counsel on Zoom is not a reasonable alternative.

III. Argument and Authority

The above-cited authority from the Supreme Court of Texas could not be

more clear. This Court has the discretion to allow or require an attorney, witness,

and/or court reporter to participate remotely in a deposition via videoconference.

(Ex. C. § 3(a)). Although this order only remains in effect until February 1, 2023

(unless extended by the Supreme Court of Texas) it cannot be disputed that

Defendants have noticed this deposition while the order is in effect.

Notwithstanding any arguments that Defendants may make regarding their

preference to depose a live witness, the Supreme Court of Texas acknowledged

less than two weeks ago that the State of Texas remains subject to Governor

Abbott’s disaster declaration and, therefore, Defendants’ consent to a deposition-

by-videoconference is not required. Moreover, it is well within this Court’s

discretion to issue an order permitting a deposition to take place via

videoconference, even if a disaster decree is not in effect. See Tex. R. Civ. P.

199.1 (b) (“A party may take an oral deposition by telephone or other remote

electronic means if the party gives reasonable prior written notice of intent to do

so.”); cf. El-Khalidi v. Arabian Am. Dev. Co., No. 09-16-00400-CV, 2017 WL

5179967, at *4 (Tex. App.—Beaumont Nov. 9, 2017, pet. denied) (burden is on

3|Plaintiffs’ Motion to Quash Depo – J. Ghitis, MD
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party seeking to take deposition by remote means to conclusively prove that doing

so is necessary). Plaintiffs respectfully submit that Defendants will not—because

they cannot—offer any evidence to suggest that the threat of unnecessarily

indirectly exposing Plaintiffs’ counsel’s wife to COVID-19 is somehow eviscerated

by the absence of an order from the Supreme Court of Texas.

Finally, Texas Rule of Civil Procedure 199.4 provides that “a party may

object to the time and place designated for an oral desposition by motion for

protective order” and that “if the motion is filed by the third business day after

service of the notice of deposition, an objection to the time and place of a

deposition stays the oral deposition until the motion can be determined.”

Accordingly, because this motion is timely filed, the deposition should be stayed

pending this Court’s ruling.

IV. Conclusion

This Court should grant this Motion to Quash Defendant’s Notice of

Deposition and grant Plaintiffs all other relief to which they are entitled.

Respectfully submitted,

/s/ Jerry D. Patchen
Jerry D. Patchen
SBA No. 15561000
1400 Congress
Houston, Texas 77002
(713) 408-9090 mobile
jpatchen@1400congress.com
Attorney for Plaintiffs

4|Plaintiffs’ Motion to Quash Depo – J. Ghitis, MD
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Hidalgo County District Clerks
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CERTIFICATE OF CONFERENCE

I certify that on January 9, 2023, I communicated by e-mail with Bill Gault,

counsel for Defendant, who confirmed that he is opposed to this Motion.

/s/ Jerry D. Patchen
Jerry D. Patchen

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion was

served in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure

to all parties through their below listed counsel on the 12th day of January, 2023.

VIA E-SERVICE VIA E-SERVICE
Ronald G. Hole William Gault
Hole & Alvarez, LLP Gault, Nye & Quintana, LLP
612 W. Nolana Loop, Suite 370 P.O. Box 5959
P.O. Box 720547 Brownsville, Texas 78523
McAllen, Texas 78504-0547 bgault@gnqlawyers.com
ron@holealvarez.com Attorney for Robert C. Fountila, DO
Attorney for Raymond R. Fulp, III and
Ray Fulp Orthopedics, PA

/s/ Jerry D. Patchen
Jerry D. Patchen

S:\JDP\Client\GONZALEZ, Regino\P\Motion to Quash - Ghitis Deposition.docx

5|Plaintiffs’ Motion to Quash Depo – J. Ghitis, MD
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Jerry Patchen on behalf of Jerry Patchen
Bar No. 15561000
jpatchen@1400congress.com
Envelope ID: 71751902
Status as of 1/12/2023 3:39 PM CST

Associated Case Party: JUANA LAGUNA