Preview
Filed: 6/15/2023 3:32 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 76669971
By: Shailja Dixit
6/15/2023 3:39 PM
CAUSE NO. 18-CV-1446
VANESSA HALLMARK § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § GALVESTON COUNTY, TEXAS
§
ANTONIO AVILES SANCHEZ and §
FRUIT FLOWERS SOUTH, LLC §
Defendants, § 405th JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION
FOR LEAVE TO SUPPLEMENT EXPERT WITNESS DESIGNATION
Defendants FRUIT FLOWERS SOUTH, LLC AND ANTONIO AVILES SANCHEZ,
(“Defendants”), file this Response in Opposition to Plaintiff’s Motion for Leave to Supplement
her Expert Witness Designation. In support of their arguments, Defendants show the Court how
and why this supplementation would constitute unfair surprise and prejudice to Defendants.
SUMMARY OF RESPONSE
1. Plaintiff has not met her burden for late designation of an expert witness. While
Ms. Arnold’s health condition may constitute good cause, Plaintiff has failed to demonstrate lack
of unfair surprise or prejudice to Defendants.
2. Plaintiff’s “Supplemental” Life Care Plan includes new calculations, new opinions,
new analysis of new treatment, none of which was considered or reviewed by the prior Life Care
Planner, Terry Arnold, RN.
3. If the Court allows Plaintiff to use late-supplemented records and new opinions
from a new life care planner and Defendants are not permitted to supplement their expert opinions,
then there will be a clear violation of the principles of fundamental fairness. In other words,
Defendants will be unduly prejudiced if the Court allows Plaintiff to present new expert testimony
1
without allowing Defendants the same opportunity to refute new opinions, new calculations and
new medical treatment.
RELEVANT ADDITIONAL FACTS DEMONSTRATING
UNFAIR SURPRISE AND PREJUDICE
4. Plaintiff’s Motion ignores several recent events, which are relevant to the Court’s
determination of the relief sought by the parties, and ultimately, what evidence each party is
entitled to show the jury.
5. While Plaintiff’s Motion states that a “small section of this plan is updated, [and] it
is essentially the same report of Terry Arnold,” an actual review of the new report by Tresa Johnson
reveals something entirely different. See Plaintiff’s Motion at page 2.
6. In addition to several substantive changes, Ms. Johnson indicates she based her
opinions on “medical records, and [] an interview with Ms. Hallmark.” See page 1, paragraph 1 of
the “Updated” plan attached to Plaintiff’s Motion. Ms. Johnson also “consulted with [Plaintiff’s]
treating pain management physician, John Sebok, D.O. regarding Ms. Hallmark’s current care and
future needs.” See Id. Notes, outlines, and/or correspondence prepared By Nurse Johnson during
these interviews and consultations were not attached to the new report.
7. Defendants are entitled to review the basis for an expert’s opinion. See Tex R. Civ.
P 194.2(f); See Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 348 (Tex. App.-Fort Worth
2003, pet. denied) (the purpose of Rule 194.2(f) is “to give the opposing party sufficient
information about the expert's opinions to prepare to cross-examine the expert and to prepare
expert rebuttal evidence) [internal citations omitted].
8. Plaintiff inappropriately asserts lack of prejudice by stating Defendants did not
depose the prior expert, Terry Arnold, RN. In March 2022, following production of Terry Arnold
RN’s Updated Life Care Plan, Defendants were forced to specifically request Plaintiff supplement
2
their discovery pursuant to Rule 195.5(a) (formerly 194.2(f)). See March 30, 2022
Correspondence to opposing counsel, wherein Defendants requested “copies of all materials
reviewed, drafted, or prepared in connection1 with the “Resources” enumerated on page 30 of her
February 2020 Amended Life Care Plan.” Ultimately, in April 2022, sixty-eight (68) pages of
Terry Arnold’s notes were produced, which Defendants have relied upon in the preparation of their
defense.
9. Plaintiff’s new life care planning expert conducted her own separate investigation
to form opinions and prepare for trial. Specifically, Ms. Johnson completed two (2) interviews
with Plaintiff and one of Plaintiff’s treating provider, John Sebok, D.O. See page 39 of section
titled “Resources;” see also page one (1) Introduction of new Supplemental Report.
10. Plaintiff has not produced any notes, journals, or correspondence prepared by Ms.
Johnson, which she lists as “Resources” for the basis of her conclusions and opinions. See page
39, resources listed as 7, 8, and 9.
11. In addition to additional new interviews with the Plaintiff and her treating
providers, Ms. Johnson’s Report (and opinions) are based on new/additional medical and billing
records. Specifically, Ms. Johnson reviewed and intends to testify regarding the records produced
by Plaintiff on May 10, 2023, which included 3600 pages of medical and billing records (1,648
pages of which are new, never been produced). These records include Plaintiff’s treatment in
2021, 2022, and 2023.
12. Plaintiff’s representation that the supplemental report is nearly the “same” with a
“small section” that is “updated” is false. Ms. Johnson’s report addresses new treatment, which
was not previously addressed in Ms. Arnold’s life care plan and also deviates from and changes
3
Ms. Arnold’s prior summary regarding medical treatment. See Nurse Johnson’s Report at pages
3-20, 22, 23-34, 37-39, and 40.
UNFAIR SURPRISE AND PREJUDICE TO DEFENDANTS
13. Plaintiff has failed to demonstrate that Defendants will not be unfairly prejudiced
or surprised.
14. The second exception to Rule 193.6 allows a trial judge to excuse a party's failure
to comply with its discovery obligations if the party can demonstrate that the admission of the
undisclosed or untimely disclosed evidence will not unfairly prejudice the other parties. See Tex.R.
Civ. P. 193.6(a)(2) and (b). Plaintiff claims that Defendants will not be surprised or prejudiced
because the report only includes a small update; however, there are substantive differences and
new materials that formed the basis of the calculations.
15. The purpose of Rule 194.2(f) is “to give the opposing party sufficient information
about the expert's opinions to prepare to cross-examine the expert and to prepare expert rebuttal
evidence.” In the Interest of T.K.D-H., 439 S.W.3d 473, 477 (Tex. App. -- San Antonio 2014, no
pet.). Plaintiff’s failure to comply with Rule 194.2(f) unfairly prejudices Defendants because they
will not have the opportunity to review Ms. Johnson’s mental impressions and opinions prior to
her testimony at trial, thus disallowing them from effectively cross-examining her and from
preparing expert rebuttal evidence and/or witnesses.
16. Plaintiff has failed to satisfy her burden of establishing good cause or a lack of
unfair surprise or prejudice against Defendants. See Fort Brown Villas III Condominium Ass'n,
Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex., 2009) (citing Tex.R. Civ. P. 193.6(b)).
4
ALTERNATIVELY, DEFENDANTS’ MOTION AND REQUEST TO SUPPLEMENT
THEIR EXPERT TESTIMONY TO REFUTE THE NEW SUPPLEMENTAL OPINIONS
17. If the Court allows Plaintiff’s new life care planner to testify at trial, Defendants
request that Court order production of the unproduced materials and have the same opportunity to
allow supplemental designation to effectuate the purpose of discovery—to seek the truth. See, e.g.,
Stelly, 927 S.W.2d at 622; see also In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 248 (Tex.
2021) (orig. proceeding) (disputes should be decided by “what the facts reveal, not by what facts
are concealed”; thus, discovery rules must be liberally construed).
18. For the foregoing reasons, Defendants request Plaintiff’s Motion for Leave be
denied and alternatively request the Court allow them to supplement their expert witness list and
corresponding testimony to refute the new opinions, so that they may fully defend themselves at
the trial of this matter.
WHEREFORE, PREMISES CONSIDERED, Defendants pray all relief sought will be
granted, and that they be granted all other relief, at law and in equity, to which they may justly be
entitled to receive.
Respectfully submitted,
LAPIDUS KNUDSEN, PC
__________________________________________
MARK R. LAPIDUS
SBN: 11942250
Mlapidus@lk-lawfirm.com
SHEA HENRY YOESEL
SBN: 24074398
syoesel@lk-lawfirm.com
5906 Dolores, Suite 200
Houston, Texas 77057
(713) 400-6000
(713) 622-8054 (FAX)
ATTORNEYS FOR DEFENDANTS,
ANTONIO AVILES SANCHEZ and FRUIT
FLOWERS SOUTH, LLC
5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded
to all parties and/or attorneys of record in accordance with the Texas Rules of Civil Procedure, on
this 15th day of June 2023.
William R. Ogden Robert E. Booth
Farrar & Ball, LLP Mills Shirley LLP
1117 Herkimer Street 2200 Market St, Suite 300
Houston, Texas 77008 Galveston, Texas 77550
Wade B. Williams
Stephen R. Lewis, Jr.
Lewis & Williams, L.L.P.
1014 Hercules Ave.
Houston, Texas 77058
__________________________________________
MARK R. LAPIDUS
SHEA HENRY YOESEL
6
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.
Mark Lapidus on behalf of Mark Lapidus
Bar No. 11942250
mlapidus@lk-lawfirm.com
Envelope ID: 76669971
Filing Code Description: Reply
Filing Description: Defendants' Reply to Ps Response to Defts Mtn for
Leave Supp Expert
Status as of 6/15/2023 3:40 PM CST
Associated Case Party: Vanessa Hallmark
Name BarNumber Email TimestampSubmitted Status
Bill Ogden bill@fbtrial.com 6/15/2023 3:32:19 PM SENT
Robert Booth rbooth@millsshirley.com 6/15/2023 3:32:19 PM SENT
Dawn Stone dawn@fbtrial.com 6/15/2023 3:32:19 PM SENT
Associated Case Party: AD Hospital East, LLC
Name BarNumber Email TimestampSubmitted Status
Bob Wynne service@justwynnelaw.com 6/15/2023 3:32:19 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Alda Manning alda@fbtrial.com 6/15/2023 3:32:19 PM SENT
Mark Lapidus mlapidus@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT
Shea HenryYoesel syoesel@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT
Lapidus Knudsen e-service@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT
Karen Baker kbaker@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT
Susan Reed sreed@millsshirley.com 6/15/2023 3:32:19 PM SENT
Jeth Jones jjones@millsshirley.com 6/15/2023 3:32:19 PM ERROR
Wade Williams wwilliams@lewisandwilliams.com 6/15/2023 3:32:19 PM SENT
Wade Williams e-service@lewisandwilliams.com 6/15/2023 3:32:19 PM SENT
Carmen Scott carmen@fbtrial.com 6/15/2023 3:32:19 PM SENT
William Ogden bill@fbtrial.com 6/15/2023 3:32:19 PM SENT
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.
Mark Lapidus on behalf of Mark Lapidus
Bar No. 11942250
mlapidus@lk-lawfirm.com
Envelope ID: 76669971
Filing Code Description: Reply
Filing Description: Defendants' Reply to Ps Response to Defts Mtn for
Leave Supp Expert
Status as of 6/15/2023 3:40 PM CST
Case Contacts
Ingrid Sanchez isanchez@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT
Preview
Filed: 6/15/2023 3:32 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 76669971 By: Shailja Dixit 6/15/2023 3:39 PM CAUSE NO. 18-CV-1446 VANESSA HALLMARK § IN THE DISTRICT COURT OF Plaintiff, § § v. § GALVESTON COUNTY, TEXAS § ANTONIO AVILES SANCHEZ and § FRUIT FLOWERS SOUTH, LLC § Defendants, § 405th JUDICIAL DISTRICT DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT EXPERT WITNESS DESIGNATION Defendants FRUIT FLOWERS SOUTH, LLC AND ANTONIO AVILES SANCHEZ, (“Defendants”), file this Response in Opposition to Plaintiff’s Motion for Leave to Supplement her Expert Witness Designation. In support of their arguments, Defendants show the Court how and why this supplementation would constitute unfair surprise and prejudice to Defendants. SUMMARY OF RESPONSE 1. Plaintiff has not met her burden for late designation of an expert witness. While Ms. Arnold’s health condition may constitute good cause, Plaintiff has failed to demonstrate lack of unfair surprise or prejudice to Defendants. 2. Plaintiff’s “Supplemental” Life Care Plan includes new calculations, new opinions, new analysis of new treatment, none of which was considered or reviewed by the prior Life Care Planner, Terry Arnold, RN. 3. If the Court allows Plaintiff to use late-supplemented records and new opinions from a new life care planner and Defendants are not permitted to supplement their expert opinions, then there will be a clear violation of the principles of fundamental fairness. In other words, Defendants will be unduly prejudiced if the Court allows Plaintiff to present new expert testimony 1 without allowing Defendants the same opportunity to refute new opinions, new calculations and new medical treatment. RELEVANT ADDITIONAL FACTS DEMONSTRATING UNFAIR SURPRISE AND PREJUDICE 4. Plaintiff’s Motion ignores several recent events, which are relevant to the Court’s determination of the relief sought by the parties, and ultimately, what evidence each party is entitled to show the jury. 5. While Plaintiff’s Motion states that a “small section of this plan is updated, [and] it is essentially the same report of Terry Arnold,” an actual review of the new report by Tresa Johnson reveals something entirely different. See Plaintiff’s Motion at page 2. 6. In addition to several substantive changes, Ms. Johnson indicates she based her opinions on “medical records, and [] an interview with Ms. Hallmark.” See page 1, paragraph 1 of the “Updated” plan attached to Plaintiff’s Motion. Ms. Johnson also “consulted with [Plaintiff’s] treating pain management physician, John Sebok, D.O. regarding Ms. Hallmark’s current care and future needs.” See Id. Notes, outlines, and/or correspondence prepared By Nurse Johnson during these interviews and consultations were not attached to the new report. 7. Defendants are entitled to review the basis for an expert’s opinion. See Tex R. Civ. P 194.2(f); See Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 348 (Tex. App.-Fort Worth 2003, pet. denied) (the purpose of Rule 194.2(f) is “to give the opposing party sufficient information about the expert's opinions to prepare to cross-examine the expert and to prepare expert rebuttal evidence) [internal citations omitted]. 8. Plaintiff inappropriately asserts lack of prejudice by stating Defendants did not depose the prior expert, Terry Arnold, RN. In March 2022, following production of Terry Arnold RN’s Updated Life Care Plan, Defendants were forced to specifically request Plaintiff supplement 2 their discovery pursuant to Rule 195.5(a) (formerly 194.2(f)). See March 30, 2022 Correspondence to opposing counsel, wherein Defendants requested “copies of all materials reviewed, drafted, or prepared in connection1 with the “Resources” enumerated on page 30 of her February 2020 Amended Life Care Plan.” Ultimately, in April 2022, sixty-eight (68) pages of Terry Arnold’s notes were produced, which Defendants have relied upon in the preparation of their defense. 9. Plaintiff’s new life care planning expert conducted her own separate investigation to form opinions and prepare for trial. Specifically, Ms. Johnson completed two (2) interviews with Plaintiff and one of Plaintiff’s treating provider, John Sebok, D.O. See page 39 of section titled “Resources;” see also page one (1) Introduction of new Supplemental Report. 10. Plaintiff has not produced any notes, journals, or correspondence prepared by Ms. Johnson, which she lists as “Resources” for the basis of her conclusions and opinions. See page 39, resources listed as 7, 8, and 9. 11. In addition to additional new interviews with the Plaintiff and her treating providers, Ms. Johnson’s Report (and opinions) are based on new/additional medical and billing records. Specifically, Ms. Johnson reviewed and intends to testify regarding the records produced by Plaintiff on May 10, 2023, which included 3600 pages of medical and billing records (1,648 pages of which are new, never been produced). These records include Plaintiff’s treatment in 2021, 2022, and 2023. 12. Plaintiff’s representation that the supplemental report is nearly the “same” with a “small section” that is “updated” is false. Ms. Johnson’s report addresses new treatment, which was not previously addressed in Ms. Arnold’s life care plan and also deviates from and changes 3 Ms. Arnold’s prior summary regarding medical treatment. See Nurse Johnson’s Report at pages 3-20, 22, 23-34, 37-39, and 40. UNFAIR SURPRISE AND PREJUDICE TO DEFENDANTS 13. Plaintiff has failed to demonstrate that Defendants will not be unfairly prejudiced or surprised. 14. The second exception to Rule 193.6 allows a trial judge to excuse a party's failure to comply with its discovery obligations if the party can demonstrate that the admission of the undisclosed or untimely disclosed evidence will not unfairly prejudice the other parties. See Tex.R. Civ. P. 193.6(a)(2) and (b). Plaintiff claims that Defendants will not be surprised or prejudiced because the report only includes a small update; however, there are substantive differences and new materials that formed the basis of the calculations. 15. The purpose of Rule 194.2(f) is “to give the opposing party sufficient information about the expert's opinions to prepare to cross-examine the expert and to prepare expert rebuttal evidence.” In the Interest of T.K.D-H., 439 S.W.3d 473, 477 (Tex. App. -- San Antonio 2014, no pet.). Plaintiff’s failure to comply with Rule 194.2(f) unfairly prejudices Defendants because they will not have the opportunity to review Ms. Johnson’s mental impressions and opinions prior to her testimony at trial, thus disallowing them from effectively cross-examining her and from preparing expert rebuttal evidence and/or witnesses. 16. Plaintiff has failed to satisfy her burden of establishing good cause or a lack of unfair surprise or prejudice against Defendants. See Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex., 2009) (citing Tex.R. Civ. P. 193.6(b)). 4 ALTERNATIVELY, DEFENDANTS’ MOTION AND REQUEST TO SUPPLEMENT THEIR EXPERT TESTIMONY TO REFUTE THE NEW SUPPLEMENTAL OPINIONS 17. If the Court allows Plaintiff’s new life care planner to testify at trial, Defendants request that Court order production of the unproduced materials and have the same opportunity to allow supplemental designation to effectuate the purpose of discovery—to seek the truth. See, e.g., Stelly, 927 S.W.2d at 622; see also In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 248 (Tex. 2021) (orig. proceeding) (disputes should be decided by “what the facts reveal, not by what facts are concealed”; thus, discovery rules must be liberally construed). 18. For the foregoing reasons, Defendants request Plaintiff’s Motion for Leave be denied and alternatively request the Court allow them to supplement their expert witness list and corresponding testimony to refute the new opinions, so that they may fully defend themselves at the trial of this matter. WHEREFORE, PREMISES CONSIDERED, Defendants pray all relief sought will be granted, and that they be granted all other relief, at law and in equity, to which they may justly be entitled to receive. Respectfully submitted, LAPIDUS KNUDSEN, PC __________________________________________ MARK R. LAPIDUS SBN: 11942250 Mlapidus@lk-lawfirm.com SHEA HENRY YOESEL SBN: 24074398 syoesel@lk-lawfirm.com 5906 Dolores, Suite 200 Houston, Texas 77057 (713) 400-6000 (713) 622-8054 (FAX) ATTORNEYS FOR DEFENDANTS, ANTONIO AVILES SANCHEZ and FRUIT FLOWERS SOUTH, LLC 5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all parties and/or attorneys of record in accordance with the Texas Rules of Civil Procedure, on this 15th day of June 2023. William R. Ogden Robert E. Booth Farrar & Ball, LLP Mills Shirley LLP 1117 Herkimer Street 2200 Market St, Suite 300 Houston, Texas 77008 Galveston, Texas 77550 Wade B. Williams Stephen R. Lewis, Jr. Lewis & Williams, L.L.P. 1014 Hercules Ave. Houston, Texas 77058 __________________________________________ MARK R. LAPIDUS SHEA HENRY YOESEL 6 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. Mark Lapidus on behalf of Mark Lapidus Bar No. 11942250 mlapidus@lk-lawfirm.com Envelope ID: 76669971 Filing Code Description: Reply Filing Description: Defendants' Reply to Ps Response to Defts Mtn for Leave Supp Expert Status as of 6/15/2023 3:40 PM CST Associated Case Party: Vanessa Hallmark Name BarNumber Email TimestampSubmitted Status Bill Ogden bill@fbtrial.com 6/15/2023 3:32:19 PM SENT Robert Booth rbooth@millsshirley.com 6/15/2023 3:32:19 PM SENT Dawn Stone dawn@fbtrial.com 6/15/2023 3:32:19 PM SENT Associated Case Party: AD Hospital East, LLC Name BarNumber Email TimestampSubmitted Status Bob Wynne service@justwynnelaw.com 6/15/2023 3:32:19 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Alda Manning alda@fbtrial.com 6/15/2023 3:32:19 PM SENT Mark Lapidus mlapidus@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT Shea HenryYoesel syoesel@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT Lapidus Knudsen e-service@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT Karen Baker kbaker@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT Susan Reed sreed@millsshirley.com 6/15/2023 3:32:19 PM SENT Jeth Jones jjones@millsshirley.com 6/15/2023 3:32:19 PM ERROR Wade Williams wwilliams@lewisandwilliams.com 6/15/2023 3:32:19 PM SENT Wade Williams e-service@lewisandwilliams.com 6/15/2023 3:32:19 PM SENT Carmen Scott carmen@fbtrial.com 6/15/2023 3:32:19 PM SENT William Ogden bill@fbtrial.com 6/15/2023 3:32:19 PM SENT 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. Mark Lapidus on behalf of Mark Lapidus Bar No. 11942250 mlapidus@lk-lawfirm.com Envelope ID: 76669971 Filing Code Description: Reply Filing Description: Defendants' Reply to Ps Response to Defts Mtn for Leave Supp Expert Status as of 6/15/2023 3:40 PM CST Case Contacts Ingrid Sanchez isanchez@lk-lawfirm.com 6/15/2023 3:32:19 PM SENT