Preview
FILED
3/29/2023 5:39 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jeremy Jones DEPUTY
CAUSE NO. DC-22-01699
CARLOS GRANADOS IN THE DISTRICT COURT
§§§§§§§
Plaintiff,
vs. 101ST JUDICIAL DISTRICT
GOLDEN STONES, LP
Defendant. DALLAS COUNTY, TEXAS
PLAIN TIFF’S OPPOSED MOTION FOR LEAVE
TO LATE DESIGNATE AN EXPERT WITNESS
To the Honorable Judge of This Court:
Plaintiff, Carlos Granados, files this Opposed Motion for Leave to Late
Designate an Expert Witness, and respectfully asks this Court, if the trial of this
cause is not continued, for leave to designate Dr. Imtiaz Chaudhry as a non-retained,
testifying expert Witness in this cause. In support, Plaintiff would show as follows:
I. Summary of Argument
Although the Parties filed a Joint Motion for Continuance currently pending
before this Honorable Court, Plaintiff files this Motion for Leave, and, if the Motion
for Continuance is not granted and the trial date is not reset, Plaintiff respectfully
asks for leave of Court to designate Dr. Imtiaz Chaudhry as an expert witness in this
case, after Plaintiff’s expert designation deadline has passed. Plaintiff asks this
Court to grant this Motion for Leave, if the Parties’ Motion for Continuance is denied,
because good cause exists for allowing the late designation, as Plaintiff saw Dr. Imtiaz
Chaudhry on March 8, 2023. Moreover, Defendant Golden Stones, LP will not be
surprised by this designation, as (1) Plaintiffs hospital records from August 2021
show that his treating doctors have contemplated this surgery since the date of his
injury, and (2) Defendant knew that Plaintiff was still treating. Finally, Defendant
Golden Stones, LP will not be prejudiced by this late designation as Plaintiff will
agree to extend Defendant’s expert designation on this issue and will agree to present
the expert Witness for deposition before the trial date. Third-Party Defendant Jorge
Portillo would not be surprised nor prejudiced by Plaintiffs late designation as
Defendant Portillo was only recently added to the lawsuit.
II. Legal Standards
A party who has not timely designated an expert witness may designate an
expert witness after the deadline, if the court finds that (1) there was good cause for
the failure to timely make, amend, or supplement the discovery response, or (2) the
failure to timely make, amend, or supplement the discovery response will not unfairly
surprise or unfairly prejudice the other parties.1
A trial court has broad discretion to allow late designated experts to testify?
In exercising that discretion, a court must necessarily consider that parties, in the
interest of justice, should be afforded a full and fair opportunity to present the merits
of their case.3
Similarly, a determination of good cause rests within the sound discretion of
the trial court.4 The good-cause exception to late designation allows a trial judge to
1
TEX. R. CIV. P. 193.6(a).
2 See Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2 (Tex. 1994).
3 Alvarado v. Farah
Mfg. Co., 830 S.W.2d 911, 914 (TeX. 1992).
4
Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).
excuse a party’s failure to comply with discovery obligations in ‘difficult or impossible
circumstances.’5
III. Background Facts
On August 10, 2021, Plaintiff was unloading granite countertops from a
container by tying a chain, provided by Defendant, around the granite and the pallets
on which they sat, While one of Defendant’s employees, operating a forklift, would
pull the chain, pallets, and countertops backwards, out of the container.
As Defendant’s employee reversed the forklift and pulled one of the pallets
back, the metal chain snapped in two and struck Plaintiff in his right eye. Plaintiff
was taken to Parkland Hospital where he underwent emergency surgery to repair the
ruptured globe of his right eye.
Plaintiff was discharged from the hospital on August 13th, three days after the
incident and his emergency surgery. On August 16, Plaintiff returned for a follow-
up, where the surgeon discussed removing Plaintiffs right eye with Plaintiff;
however, due to his young age, Plaintiff desired to keep his eye and was prescribed
eye drops to provide pain relief.
Plaintiff continued to follow-up with Dr. Mattioli, an ophthalmologist, for his
ongoing ocular pain. In early 2023, Plaintiff sought a consultation with an eye
surgeon to discuss removal of the eye and any other options.
5
Cnty v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex.App.—Houston [lst Dist.] 2006, no pet.).
On March 8, 2023, Plaintiff saw Dr. Imtiaz Chaudhry at Houston Ocular
Plastics, Who recommended evisceration of the right eye with an orbital implant and
Gunderson flap.
Although Plaintiff informed his counsel that Dr. Chaudhry had recommended
surgery, Plaintiff’s counsel did not receive Dr. Chaudhry’s records until March 23,
2023.
IV. Motion for Leave to Late Designate Expert Witnesses
Plaintiff respectfully asks this Court for leave to designate late Dr. Imtiaz
Chaudhry as a non-retained, testifying expert Witness in this case. Plaintiff’s
proposed late designation meets both exceptions under Rule 193.6 that permit a trial
court to allow a late designation: (1) good cause and (2) lack of unfair surprise or
prejudice.
Good cause exists because Plaintiff only saw Dr. Chaudhry on March 8th, and
by May 18th, when this case is set for trial, Plaintiff will likely have already undergone
this surgery. Plaintiff can therefore present his entire case, including the full scope
of his damages and necessary medical care, only if he is permitted to designate Dr.
Chaudhry. Without Dr. Chaudhry, the jury will not have all the evidence and will
not hear the entire story. In the interest of justice, Plaintiff should be granted leave
to designate Dr. Chaudhry.
Even if this Court finds good cause does not exist, leave should still be granted
because Defendant Golden Stones, LP would not be unfairly surprised by the late
designation, as the surgery recommended by Dr. Chaudhry was recommended at
Plaintiff’s hospital follow-up three days after his surgery. Further, Defendant knew
Plaintiff has continued to see Dr. Mattioli for treatment of his right eye.
As to prejudice, Plaintiff agrees to produce Dr. Chaudhry for deposition before
trial. Moreover, Plaintiff will not object to Defendant’s late-designation of an expert
witness to rebut Dr. Chaudhry’s opinions and testimony.
Finally, Third-Party Defendant Jorge Portillo will not be surprised or
prejudiced, as Third-Party Defendant has only just recently appeared in this lawsuit,
and Plaintiff agrees to provide Defendant with the same discovery opportunities as
Defendant Golden Stones, LP.
With this Motion for Leave, Plaintiff attaches as an exhibit Plaintiffs medical
records from Dr. Chaudhry reflecting the date of Plaintiffs appointment, March 8th,
the first and only date on which Plaintiff has seen Dr. Chaudhry thus far, and March
23rd, the date those records were provided to Plaintiffs counsel. Because the eye
drops prescribed to Plaintiff have not provided any meaningful relief, Plaintiff plans
to undergo the surgery with Dr. Chaudhry soon, and will likely have had the surgery
performed by the time of trial. Given the significant impact the surgery will have on
Plaintiffs damages model and overall condition, Plaintiffs case can be presented
fairly only if Dr. Chaudhry is permitted to testify regarding his opinions and
recommendations.
V. Prayer
Wherefore, premises considered, Plaintiff, Carlos Granados, respectfully prays
for Leave of Court to designate late Dr. Chaudhry as a non-retained, testifying expert
in this trial. Good cause exists for allowing this late designation because Plaintiff
saw Dr. Chaudhry for the first-time on March 8th, and Dr. Chaudhry’s office did not
produce those records until March 23rd Moreover, neither Defendant Golden Stones,
LP nor Third-Party Defendant Jorge Portillo would be unfairly surprised or
prejudiced by allowing the late designation, as the surgery was contemplated and
suggested at Plaintiffs initial hospital admission, and Plaintiff agrees to present Dr.
Chaudhry for deposition and not to object to a late designation by Defendants.
Plaintiff prays for all other relief, at law and in equity, to which he may be justly
entitled.
Respectfully submitted,
MILLER WEISBROD OLESKY, LLP
11551 Forest Central Drive, Suite 300
Dallas, Texas 75243
(214) 987-0005
(214) 987-2545 (Facsimile)
By: /s/ Michael Orth
CLAY MILLER
State Bar No. 00791266
cmillerngillerweisbrod.com
MICHAEL ORTH
State Bar No. 24079089
morthngillerweisbrod.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Plaintiffs Motion for Leave to Designate
Late Dr. Imtiaz Chaudhry has been served on the following counsel of record in accordance
With the TEX. R. CIV. P.:
William W. Hancock U CM, RRR
WATSON, CARAWAY, MIDKIFF & LUN IN GHAM, LLP 306 D Hand-Delivery
W. 7th Street, Suite 200 D Facsimile
Fort Worth, Texas 76102 D First Class Mail, postage prepaid
Email/eFile
On the 28th day of March, 2023. /s/ Michael Orth
MICHAEL ORTH
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred with Defendant Golden Stones, LP’s counsel
on the following dates and times regarding the relief sought in this Motion, and he
stated Defendant Golden Stones, LP is OPPOSED to this Motion.
On this the 28th day of March, 2023. /s/ Michael Orth
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.
Envelope lD: 74148069
Filing Code Description: Motion - Continuance
Filing Description: UNOPPOSED
Status as of 3/31/2023 11:06 AM CST
Associated Case Party: CARLOS GRANADOS
Name BarNumber Email TimestampSubmitted Status
Michael Orth morth@millerweisbrod.com 3/29/2023 5:39:18 PM SENT
Diane Chacon dchacon@millerweisbrod.com 3/29/2023 5:39:18 PM SENT
Elizabeth Schefer eschefer@millen~eisbrod.com 3/29/2023 5:39:18 PM ERROR
Associated Case Party: GOLDEN STONES, LP
Name BarNumber Email TimestampSubmitted Status
William Hancock whancock@watsoncaraway.com 3/29/2023 5:39:18 PM SENT
Katherine Anthony kanthony@watsoncaraway.com 3/29/2023 5:39:18 PM SENT
James H.Fendley jfend|ey@watsoncaraway.com 3/29/2023 5:39:18 PM SENT
Associated Case Party: JORGE PORTILLO
Name BarNumber Email TimestampSubmitted Status
Douglas Turek dturek@tureklawfirm.com 3/29/2023 5:39:18 PM SENT
Emily Marr emarr@tureklawfirm.com 3/29/2023 5:39:18 PM SENT
Patricia McCulloch pmcculloch@tureklawfirm.com 3/29/2023 5:39:18 PM SENT
Preview
FILED 3/29/2023 5:39 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jeremy Jones DEPUTY CAUSE NO. DC-22-01699 CARLOS GRANADOS IN THE DISTRICT COURT §§§§§§§ Plaintiff, vs. 101ST JUDICIAL DISTRICT GOLDEN STONES, LP Defendant. DALLAS COUNTY, TEXAS PLAIN TIFF’S OPPOSED MOTION FOR LEAVE TO LATE DESIGNATE AN EXPERT WITNESS To the Honorable Judge of This Court: Plaintiff, Carlos Granados, files this Opposed Motion for Leave to Late Designate an Expert Witness, and respectfully asks this Court, if the trial of this cause is not continued, for leave to designate Dr. Imtiaz Chaudhry as a non-retained, testifying expert Witness in this cause. In support, Plaintiff would show as follows: I. Summary of Argument Although the Parties filed a Joint Motion for Continuance currently pending before this Honorable Court, Plaintiff files this Motion for Leave, and, if the Motion for Continuance is not granted and the trial date is not reset, Plaintiff respectfully asks for leave of Court to designate Dr. Imtiaz Chaudhry as an expert witness in this case, after Plaintiff’s expert designation deadline has passed. Plaintiff asks this Court to grant this Motion for Leave, if the Parties’ Motion for Continuance is denied, because good cause exists for allowing the late designation, as Plaintiff saw Dr. Imtiaz Chaudhry on March 8, 2023. Moreover, Defendant Golden Stones, LP will not be surprised by this designation, as (1) Plaintiffs hospital records from August 2021 show that his treating doctors have contemplated this surgery since the date of his injury, and (2) Defendant knew that Plaintiff was still treating. Finally, Defendant Golden Stones, LP will not be prejudiced by this late designation as Plaintiff will agree to extend Defendant’s expert designation on this issue and will agree to present the expert Witness for deposition before the trial date. Third-Party Defendant Jorge Portillo would not be surprised nor prejudiced by Plaintiffs late designation as Defendant Portillo was only recently added to the lawsuit. II. Legal Standards A party who has not timely designated an expert witness may designate an expert witness after the deadline, if the court finds that (1) there was good cause for the failure to timely make, amend, or supplement the discovery response, or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.1 A trial court has broad discretion to allow late designated experts to testify? In exercising that discretion, a court must necessarily consider that parties, in the interest of justice, should be afforded a full and fair opportunity to present the merits of their case.3 Similarly, a determination of good cause rests within the sound discretion of the trial court.4 The good-cause exception to late designation allows a trial judge to 1 TEX. R. CIV. P. 193.6(a). 2 See Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2 (Tex. 1994). 3 Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (TeX. 1992). 4 Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). excuse a party’s failure to comply with discovery obligations in ‘difficult or impossible circumstances.’5 III. Background Facts On August 10, 2021, Plaintiff was unloading granite countertops from a container by tying a chain, provided by Defendant, around the granite and the pallets on which they sat, While one of Defendant’s employees, operating a forklift, would pull the chain, pallets, and countertops backwards, out of the container. As Defendant’s employee reversed the forklift and pulled one of the pallets back, the metal chain snapped in two and struck Plaintiff in his right eye. Plaintiff was taken to Parkland Hospital where he underwent emergency surgery to repair the ruptured globe of his right eye. Plaintiff was discharged from the hospital on August 13th, three days after the incident and his emergency surgery. On August 16, Plaintiff returned for a follow- up, where the surgeon discussed removing Plaintiffs right eye with Plaintiff; however, due to his young age, Plaintiff desired to keep his eye and was prescribed eye drops to provide pain relief. Plaintiff continued to follow-up with Dr. Mattioli, an ophthalmologist, for his ongoing ocular pain. In early 2023, Plaintiff sought a consultation with an eye surgeon to discuss removal of the eye and any other options. 5 Cnty v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex.App.—Houston [lst Dist.] 2006, no pet.). On March 8, 2023, Plaintiff saw Dr. Imtiaz Chaudhry at Houston Ocular Plastics, Who recommended evisceration of the right eye with an orbital implant and Gunderson flap. Although Plaintiff informed his counsel that Dr. Chaudhry had recommended surgery, Plaintiff’s counsel did not receive Dr. Chaudhry’s records until March 23, 2023. IV. Motion for Leave to Late Designate Expert Witnesses Plaintiff respectfully asks this Court for leave to designate late Dr. Imtiaz Chaudhry as a non-retained, testifying expert Witness in this case. Plaintiff’s proposed late designation meets both exceptions under Rule 193.6 that permit a trial court to allow a late designation: (1) good cause and (2) lack of unfair surprise or prejudice. Good cause exists because Plaintiff only saw Dr. Chaudhry on March 8th, and by May 18th, when this case is set for trial, Plaintiff will likely have already undergone this surgery. Plaintiff can therefore present his entire case, including the full scope of his damages and necessary medical care, only if he is permitted to designate Dr. Chaudhry. Without Dr. Chaudhry, the jury will not have all the evidence and will not hear the entire story. In the interest of justice, Plaintiff should be granted leave to designate Dr. Chaudhry. Even if this Court finds good cause does not exist, leave should still be granted because Defendant Golden Stones, LP would not be unfairly surprised by the late designation, as the surgery recommended by Dr. Chaudhry was recommended at Plaintiff’s hospital follow-up three days after his surgery. Further, Defendant knew Plaintiff has continued to see Dr. Mattioli for treatment of his right eye. As to prejudice, Plaintiff agrees to produce Dr. Chaudhry for deposition before trial. Moreover, Plaintiff will not object to Defendant’s late-designation of an expert witness to rebut Dr. Chaudhry’s opinions and testimony. Finally, Third-Party Defendant Jorge Portillo will not be surprised or prejudiced, as Third-Party Defendant has only just recently appeared in this lawsuit, and Plaintiff agrees to provide Defendant with the same discovery opportunities as Defendant Golden Stones, LP. With this Motion for Leave, Plaintiff attaches as an exhibit Plaintiffs medical records from Dr. Chaudhry reflecting the date of Plaintiffs appointment, March 8th, the first and only date on which Plaintiff has seen Dr. Chaudhry thus far, and March 23rd, the date those records were provided to Plaintiffs counsel. Because the eye drops prescribed to Plaintiff have not provided any meaningful relief, Plaintiff plans to undergo the surgery with Dr. Chaudhry soon, and will likely have had the surgery performed by the time of trial. Given the significant impact the surgery will have on Plaintiffs damages model and overall condition, Plaintiffs case can be presented fairly only if Dr. Chaudhry is permitted to testify regarding his opinions and recommendations. V. Prayer Wherefore, premises considered, Plaintiff, Carlos Granados, respectfully prays for Leave of Court to designate late Dr. Chaudhry as a non-retained, testifying expert in this trial. Good cause exists for allowing this late designation because Plaintiff saw Dr. Chaudhry for the first-time on March 8th, and Dr. Chaudhry’s office did not produce those records until March 23rd Moreover, neither Defendant Golden Stones, LP nor Third-Party Defendant Jorge Portillo would be unfairly surprised or prejudiced by allowing the late designation, as the surgery was contemplated and suggested at Plaintiffs initial hospital admission, and Plaintiff agrees to present Dr. Chaudhry for deposition and not to object to a late designation by Defendants. Plaintiff prays for all other relief, at law and in equity, to which he may be justly entitled. Respectfully submitted, MILLER WEISBROD OLESKY, LLP 11551 Forest Central Drive, Suite 300 Dallas, Texas 75243 (214) 987-0005 (214) 987-2545 (Facsimile) By: /s/ Michael Orth CLAY MILLER State Bar No. 00791266 cmillerngillerweisbrod.com MICHAEL ORTH State Bar No. 24079089 morthngillerweisbrod.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Plaintiffs Motion for Leave to Designate Late Dr. Imtiaz Chaudhry has been served on the following counsel of record in accordance With the TEX. R. CIV. P.: William W. Hancock U CM, RRR WATSON, CARAWAY, MIDKIFF & LUN IN GHAM, LLP 306 D Hand-Delivery W. 7th Street, Suite 200 D Facsimile Fort Worth, Texas 76102 D First Class Mail, postage prepaid Email/eFile On the 28th day of March, 2023. /s/ Michael Orth MICHAEL ORTH CERTIFICATE OF CONFERENCE I hereby certify that I conferred with Defendant Golden Stones, LP’s counsel on the following dates and times regarding the relief sought in this Motion, and he stated Defendant Golden Stones, LP is OPPOSED to this Motion. On this the 28th day of March, 2023. /s/ Michael Orth 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. Envelope lD: 74148069 Filing Code Description: Motion - Continuance Filing Description: UNOPPOSED Status as of 3/31/2023 11:06 AM CST Associated Case Party: CARLOS GRANADOS Name BarNumber Email TimestampSubmitted Status Michael Orth morth@millerweisbrod.com 3/29/2023 5:39:18 PM SENT Diane Chacon dchacon@millerweisbrod.com 3/29/2023 5:39:18 PM SENT Elizabeth Schefer eschefer@millen~eisbrod.com 3/29/2023 5:39:18 PM ERROR Associated Case Party: GOLDEN STONES, LP Name BarNumber Email TimestampSubmitted Status William Hancock whancock@watsoncaraway.com 3/29/2023 5:39:18 PM SENT Katherine Anthony kanthony@watsoncaraway.com 3/29/2023 5:39:18 PM SENT James H.Fendley jfend|ey@watsoncaraway.com 3/29/2023 5:39:18 PM SENT Associated Case Party: JORGE PORTILLO Name BarNumber Email TimestampSubmitted Status Douglas Turek dturek@tureklawfirm.com 3/29/2023 5:39:18 PM SENT Emily Marr emarr@tureklawfirm.com 3/29/2023 5:39:18 PM SENT Patricia McCulloch pmcculloch@tureklawfirm.com 3/29/2023 5:39:18 PM SENT