Preview
FILED
9/1/2023 6:52 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE NO. DC-18-09775
DAMON ELROD, § IN THE DISTRICT COURT
Plaintiff, §
§
v. §
§ 116th JUDICIAL DISTRICT
§
MARTIN MARIETTA MATERIALS, §
INC. and LARRY STEPNEY, §
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE
EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, DAMON ELROD, Plaintiff in the above-entitled cause, and files this, his
Response to Defendants’ Motion to Exclude, or Alternatively, for Continuance, and would
respectfully show the Court the following:
I.
INTRODUCTION & BACKGROUND
1. Throughout the five years that this case has been in litigation, Defendants have never
sent a single written discovery request to Plaintiff.
2. Additionally, Defendants have never subpoenaed any of Plaintiff’s medical records.
3. Instead, on August 22, 2023, Defendants asked for the first time, in an email, not in
discovery, and 20 days before the 12th trial setting in this matter, to produce Baylor hospital records
from a week prior to the incident made the basis of this suit.
4. Defendants argue that the disclosure rules require Plaintiff to produce medical records
from Baylor Hospital for treatment he received a week prior to Defendant Stepney dropping a steel
ladder on Plaintiff’s head.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR
CONTINUANCE - PAGE 1
5. This case has been pending since July 28, 2018. This case is Specially Set for Trial
on September 11, 2023. Defendants agreed to and requested the special setting in April 2023.
6. This eleventh-hour request for records that are unrelated to Defendant Stepney
dropping a steel ladder on Plaintiff’s head and using the disclosure rule as their basis is a desperate,
hail Mary attempt to have the Court issue a death penalty sanction and exclude Plaintiff from
presenting any evidence of his head or brain injury in an undisputed brain injury case, or in the
alternative, continue the trial setting, yet again.
II.
ARGUMENT
7. Plaintiff is not obligated to produce records that are not responsive to discovery
requests. Defendants argue that Plaintiff withheld “critically important” and “key” medical records
from a week before the subject incident, citing rule 194.2(j) as their basis. Pursuant to Rule 194.2(j),
a party may request disclosure of any or all of the following, “in a suit alleging physical or mental
injury and damages from the occurrence that is the subject of the case, all medical records and bills
that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.” Plaintiff has complied with his disclosure
obligations and duty under the Rules, and, as Defendants point out in their Motion, has produced
thousands of pages of Plaintiff’s medical records related to his injuries from the occurrence that is
subject of this case. Medical records prior to the incident are not related to Larry Stepney dropping a
steel ladder on Plaintiff’s head, are not the subject of this case, and are not responsive.
8. If Defendants truly believed these records from a week prior to the incident were
“critically important” and “key,” Defendants could have done their due diligence and sought to obtain
them years before requesting for the first time on August 22, 2023. Defendants are correct in their
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR
CONTINUANCE - PAGE 2
Motion in stating that the Baylor medical records (produced on October 19, 2018 because they
were relevant to this case) contain “scattered references” to Plaintiff’s visit to the emergency room
on August 15, 2017. The “scattered references” made it even easier for Defendants to have actively
pursued and participated in discovery and are not a surprise to Defendants since they have been in
possession of the Baylor records related to the incident containing the “scattered references” since
October 2018. The “scattered references,” however, do not make unrelated records responsive to
disclosures and do not obligate Plaintiff to produce them. They do show Defendants’ lack of due
diligence in the discovery process, which does not warrant a continuance of this trial on this
ground. See TEX. R. CIV. P. 252.
9. In the 1,861 days this case has been on file, Defendants could have sought the
unrelated records through many different avenues that the basic discovery rules under the Texas Rules
of Civil Procedure provide. Defendants could have sent a written discovery request for the records as
permitted by rules 192.1(b) and (d) of the Texas Civil Procedure. Defendants could have subpoenaed
Baylor hospital for the records through a Deposition of Written pursuant to rule 200.1 of the Texas
Rules of Civil Procedure as they did when they subpoenaed Plaintiff’s employment records.
Defendants could have noticed a deposition of the custodian of records at Baylor with a subpoena
duces tecum pursuant to rule 192.1(f) of the Texas Rules of Civil Procedure. Defendants could have
done any number of basic discovery tactics to obtain what Defendants refer to as “critically important”
and “key” records. Defendants did not do so. In fact, Defendants did not do a single thing. Instead,
at the eleventh-hour, Defendants seek to have this Court do their work for them and issue the most
serious death penalty sanction and exclude Plaintiff from presenting any evidence of Plaintiff’s head
and brain injury in an undisputed brain injury case, or alternatively, continue the trial setting once
again.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR
CONTINUANCE - PAGE 3
10. For these reasons, Plaintiff asks the Court to deny Defendants’ Motion to Exclude
Evidence of Plaintiff’s head and brain injury, deny their alternative relief for a continuance, and allow
the trial to proceed as scheduled and specially set on September 11, 2023.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff DAMON ELROD respectfully prays
that this Court deny Defendants’ Motion to Exclude Evidence of Plaintiff’s head and brain injury,
deny Defendants’ request for alternative relief for continuance, and allow the trial to proceed as
scheduled and specially set on September 11, 2023, and for such other relief as he may show himself
entitled and for all that he shall ever pray.
Respectfully submitted,
MILLER COPELAND, LLP
By: /s/J. Robert Miller, Jr.
J. ROBERT MILLER, JR.
State Bar No. 14092500
rmiller@millercopeland.com
EMILY G. COPELAND
State Bar No. 24107716
ecopeland@millercopeland.com
TAYLOR N. STONE
State Bar No. 24116827
tstone@millercopeland.com
400 South Ervay Street
Dallas, Texas 75201-5513
(214) 748-7600
FAX: (214) 204-9134
And
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR
CONTINUANCE - PAGE 4
RAMEY LAW FIRM, PLLC
Hardin R. Ramey
State Bar No. 16496500
hramey@rameylawfirm.com
3890 W. Northwest Hwy., Suite 650
Dallas, Texas 75220
(972) 437-5577
FAX: (972) 437-5572
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has been
served upon all counsel of record in this cause on this 1st day of September, 2023, in accordance
with the Texas Rules of Civil Procedure.
/s/J. Robert Miller, Jr.
J. ROBERT MILLER, JR.
VIA E-SERVICE
Mark E. Stradley
The Stradley Law Firm
9330 LBJ Freeway, Suite 1185
Dallas, Texas 75243
--COUNSEL FOR DEFENDANTS
VIA E-SERVICE
Parker Graham
Carrington, Coleman, Sloman
& Blumenthal, L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
--COUNSEL FOR DEFENDANTS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR
CONTINUANCE - PAGE 5
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.
Bianca Wilkerson on behalf of J. Robert Miller
Bar No. 14092500
bwilkerson@millercopeland.com
Envelope ID: 79180737
Filing Code Description: Response
Filing Description: TO MOTION EXCLUDE EVIDENCE
Status as of 9/4/2023 5:32 AM CST
Associated Case Party: MARTIN MARIETTA MATERIALS, INC.
Name BarNumber Email TimestampSubmitted Status
Paul Bezney Bezney@ahblaw.net 9/1/2023 6:52:49 PM SENT
Schmitz Christy christy@stradleylawfirm.com 9/1/2023 6:52:49 PM SENT
Mark Stradley Mark@Stradleylawfirm.com 9/1/2023 6:52:49 PM SENT
Michael A. Miller 14100650 mmiller@mklawpc.com 9/1/2023 6:52:49 PM SENT
Jessica Sanchez jessicas@ahblaw.net 9/1/2023 6:52:49 PM SENT
Robyn Cruze rcruze@mklawpc.com 9/1/2023 6:52:49 PM SENT
Chris Cude ccude@mklawpc.com 9/1/2023 6:52:49 PM SENT
Michael A. Miller mmiller@tmlfpc.com 9/1/2023 6:52:49 PM SENT
Clayton Devin cdevin@macdonalddevin.com 9/1/2023 6:52:49 PM SENT
Kevin E.Oliver kevin.oliver@cna.com 9/1/2023 6:52:49 PM ERROR
Kevin Oliver austinco@cna.com 9/1/2023 6:52:49 PM ERROR
Judy Hall jhall@mklawpc.com 9/1/2023 6:52:49 PM ERROR
Larissa Prilliman larissa@ahblaw.net 9/1/2023 6:52:49 PM SENT
Associated Case Party: DAMON ELROD
Name BarNumber Email TimestampSubmitted Status
Hardin Ramey hramey@rameylawfirm.com 9/1/2023 6:52:49 PM SENT
Krystle Hayden khayden@rameylawfirm.com 9/1/2023 6:52:49 PM SENT
Bianca Wilkerson bwilkerson@millercopeland.com 9/1/2023 6:52:49 PM SENT
Jenny C.Gutierrez jgutierrez@rameylawfirm.com 9/1/2023 6:52:49 PM SENT
Taylor Stone tstone@millercopeland.com 9/1/2023 6:52:49 PM SENT
Emily Copeland ecopeland@millercopeland.com 9/1/2023 6:52:49 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.
Bianca Wilkerson on behalf of J. Robert Miller
Bar No. 14092500
bwilkerson@millercopeland.com
Envelope ID: 79180737
Filing Code Description: Response
Filing Description: TO MOTION EXCLUDE EVIDENCE
Status as of 9/4/2023 5:32 AM CST
Associated Case Party: DAMON ELROD
J. RobertMiller, Jr. rmiller@millercopeland.com 9/1/2023 6:52:49 PM SENT
kristin romine kromine@rameylawfirm.com 9/1/2023 6:52:49 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Parker Graham pgraham@ccsb.com 9/1/2023 6:52:49 PM SENT
Carolyn Taylor ctaylor@ccsb.com 9/1/2023 6:52:49 PM SENT
Patti Littrell plittrell@ccsb.com 9/1/2023 6:52:49 PM SENT
Preview
FILED 9/1/2023 6:52 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY CAUSE NO. DC-18-09775 DAMON ELROD, § IN THE DISTRICT COURT Plaintiff, § § v. § § 116th JUDICIAL DISTRICT § MARTIN MARIETTA MATERIALS, § INC. and LARRY STEPNEY, § Defendants. § DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, DAMON ELROD, Plaintiff in the above-entitled cause, and files this, his Response to Defendants’ Motion to Exclude, or Alternatively, for Continuance, and would respectfully show the Court the following: I. INTRODUCTION & BACKGROUND 1. Throughout the five years that this case has been in litigation, Defendants have never sent a single written discovery request to Plaintiff. 2. Additionally, Defendants have never subpoenaed any of Plaintiff’s medical records. 3. Instead, on August 22, 2023, Defendants asked for the first time, in an email, not in discovery, and 20 days before the 12th trial setting in this matter, to produce Baylor hospital records from a week prior to the incident made the basis of this suit. 4. Defendants argue that the disclosure rules require Plaintiff to produce medical records from Baylor Hospital for treatment he received a week prior to Defendant Stepney dropping a steel ladder on Plaintiff’s head. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE - PAGE 1 5. This case has been pending since July 28, 2018. This case is Specially Set for Trial on September 11, 2023. Defendants agreed to and requested the special setting in April 2023. 6. This eleventh-hour request for records that are unrelated to Defendant Stepney dropping a steel ladder on Plaintiff’s head and using the disclosure rule as their basis is a desperate, hail Mary attempt to have the Court issue a death penalty sanction and exclude Plaintiff from presenting any evidence of his head or brain injury in an undisputed brain injury case, or in the alternative, continue the trial setting, yet again. II. ARGUMENT 7. Plaintiff is not obligated to produce records that are not responsive to discovery requests. Defendants argue that Plaintiff withheld “critically important” and “key” medical records from a week before the subject incident, citing rule 194.2(j) as their basis. Pursuant to Rule 194.2(j), a party may request disclosure of any or all of the following, “in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills.” Plaintiff has complied with his disclosure obligations and duty under the Rules, and, as Defendants point out in their Motion, has produced thousands of pages of Plaintiff’s medical records related to his injuries from the occurrence that is subject of this case. Medical records prior to the incident are not related to Larry Stepney dropping a steel ladder on Plaintiff’s head, are not the subject of this case, and are not responsive. 8. If Defendants truly believed these records from a week prior to the incident were “critically important” and “key,” Defendants could have done their due diligence and sought to obtain them years before requesting for the first time on August 22, 2023. Defendants are correct in their PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE - PAGE 2 Motion in stating that the Baylor medical records (produced on October 19, 2018 because they were relevant to this case) contain “scattered references” to Plaintiff’s visit to the emergency room on August 15, 2017. The “scattered references” made it even easier for Defendants to have actively pursued and participated in discovery and are not a surprise to Defendants since they have been in possession of the Baylor records related to the incident containing the “scattered references” since October 2018. The “scattered references,” however, do not make unrelated records responsive to disclosures and do not obligate Plaintiff to produce them. They do show Defendants’ lack of due diligence in the discovery process, which does not warrant a continuance of this trial on this ground. See TEX. R. CIV. P. 252. 9. In the 1,861 days this case has been on file, Defendants could have sought the unrelated records through many different avenues that the basic discovery rules under the Texas Rules of Civil Procedure provide. Defendants could have sent a written discovery request for the records as permitted by rules 192.1(b) and (d) of the Texas Civil Procedure. Defendants could have subpoenaed Baylor hospital for the records through a Deposition of Written pursuant to rule 200.1 of the Texas Rules of Civil Procedure as they did when they subpoenaed Plaintiff’s employment records. Defendants could have noticed a deposition of the custodian of records at Baylor with a subpoena duces tecum pursuant to rule 192.1(f) of the Texas Rules of Civil Procedure. Defendants could have done any number of basic discovery tactics to obtain what Defendants refer to as “critically important” and “key” records. Defendants did not do so. In fact, Defendants did not do a single thing. Instead, at the eleventh-hour, Defendants seek to have this Court do their work for them and issue the most serious death penalty sanction and exclude Plaintiff from presenting any evidence of Plaintiff’s head and brain injury in an undisputed brain injury case, or alternatively, continue the trial setting once again. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE - PAGE 3 10. For these reasons, Plaintiff asks the Court to deny Defendants’ Motion to Exclude Evidence of Plaintiff’s head and brain injury, deny their alternative relief for a continuance, and allow the trial to proceed as scheduled and specially set on September 11, 2023. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff DAMON ELROD respectfully prays that this Court deny Defendants’ Motion to Exclude Evidence of Plaintiff’s head and brain injury, deny Defendants’ request for alternative relief for continuance, and allow the trial to proceed as scheduled and specially set on September 11, 2023, and for such other relief as he may show himself entitled and for all that he shall ever pray. Respectfully submitted, MILLER COPELAND, LLP By: /s/J. Robert Miller, Jr. J. ROBERT MILLER, JR. State Bar No. 14092500 rmiller@millercopeland.com EMILY G. COPELAND State Bar No. 24107716 ecopeland@millercopeland.com TAYLOR N. STONE State Bar No. 24116827 tstone@millercopeland.com 400 South Ervay Street Dallas, Texas 75201-5513 (214) 748-7600 FAX: (214) 204-9134 And PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE - PAGE 4 RAMEY LAW FIRM, PLLC Hardin R. Ramey State Bar No. 16496500 hramey@rameylawfirm.com 3890 W. Northwest Hwy., Suite 650 Dallas, Texas 75220 (972) 437-5577 FAX: (972) 437-5572 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been served upon all counsel of record in this cause on this 1st day of September, 2023, in accordance with the Texas Rules of Civil Procedure. /s/J. Robert Miller, Jr. J. ROBERT MILLER, JR. VIA E-SERVICE Mark E. Stradley The Stradley Law Firm 9330 LBJ Freeway, Suite 1185 Dallas, Texas 75243 --COUNSEL FOR DEFENDANTS VIA E-SERVICE Parker Graham Carrington, Coleman, Sloman & Blumenthal, L.L.P. 901 Main Street, Suite 5500 Dallas, Texas 75202 --COUNSEL FOR DEFENDANTS PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE, OR ALTERNATIVELY, FOR CONTINUANCE - PAGE 5 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. Bianca Wilkerson on behalf of J. Robert Miller Bar No. 14092500 bwilkerson@millercopeland.com Envelope ID: 79180737 Filing Code Description: Response Filing Description: TO MOTION EXCLUDE EVIDENCE Status as of 9/4/2023 5:32 AM CST Associated Case Party: MARTIN MARIETTA MATERIALS, INC. Name BarNumber Email TimestampSubmitted Status Paul Bezney Bezney@ahblaw.net 9/1/2023 6:52:49 PM SENT Schmitz Christy christy@stradleylawfirm.com 9/1/2023 6:52:49 PM SENT Mark Stradley Mark@Stradleylawfirm.com 9/1/2023 6:52:49 PM SENT Michael A. Miller 14100650 mmiller@mklawpc.com 9/1/2023 6:52:49 PM SENT Jessica Sanchez jessicas@ahblaw.net 9/1/2023 6:52:49 PM SENT Robyn Cruze rcruze@mklawpc.com 9/1/2023 6:52:49 PM SENT Chris Cude ccude@mklawpc.com 9/1/2023 6:52:49 PM SENT Michael A. Miller mmiller@tmlfpc.com 9/1/2023 6:52:49 PM SENT Clayton Devin cdevin@macdonalddevin.com 9/1/2023 6:52:49 PM SENT Kevin E.Oliver kevin.oliver@cna.com 9/1/2023 6:52:49 PM ERROR Kevin Oliver austinco@cna.com 9/1/2023 6:52:49 PM ERROR Judy Hall jhall@mklawpc.com 9/1/2023 6:52:49 PM ERROR Larissa Prilliman larissa@ahblaw.net 9/1/2023 6:52:49 PM SENT Associated Case Party: DAMON ELROD Name BarNumber Email TimestampSubmitted Status Hardin Ramey hramey@rameylawfirm.com 9/1/2023 6:52:49 PM SENT Krystle Hayden khayden@rameylawfirm.com 9/1/2023 6:52:49 PM SENT Bianca Wilkerson bwilkerson@millercopeland.com 9/1/2023 6:52:49 PM SENT Jenny C.Gutierrez jgutierrez@rameylawfirm.com 9/1/2023 6:52:49 PM SENT Taylor Stone tstone@millercopeland.com 9/1/2023 6:52:49 PM SENT Emily Copeland ecopeland@millercopeland.com 9/1/2023 6:52:49 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. Bianca Wilkerson on behalf of J. Robert Miller Bar No. 14092500 bwilkerson@millercopeland.com Envelope ID: 79180737 Filing Code Description: Response Filing Description: TO MOTION EXCLUDE EVIDENCE Status as of 9/4/2023 5:32 AM CST Associated Case Party: DAMON ELROD J. RobertMiller, Jr. rmiller@millercopeland.com 9/1/2023 6:52:49 PM SENT kristin romine kromine@rameylawfirm.com 9/1/2023 6:52:49 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Parker Graham pgraham@ccsb.com 9/1/2023 6:52:49 PM SENT Carolyn Taylor ctaylor@ccsb.com 9/1/2023 6:52:49 PM SENT Patti Littrell plittrell@ccsb.com 9/1/2023 6:52:49 PM SENT