Preview
CAUSE NO. 20-11-14219
CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT §
FRIEND FOR THEIR MINOR CHILD, §
ROWAN FRANK MONTGOMERY COUNTY, TEXAS
VS.
AMBER TAWSE JUDICIAL DISTRICT
UNOPPOSED MOTION FOR CONTINUANCE
TO BE HONORABLE JUDGE OF THIS COURT:
Plaintiffs, CHAD FRANK AND KERRI FRANK, INDIVIDUALLY AND AS NEXT
FRIEND FOR THEIR MINOR CHILD, ROWAN FRANK, file this Unopposed Motion for
Continuance pursuant to Rule 251 and 252 of the Texas Rules of Civil Procedure and would
show unto the Court the following:
This cause is assigned to trial on January 9, 2023. Plaintiffs move for a
continuance because of recently disclosed umbrella insurance coverage for the Defendant
and the resulting need for material testimony of Dr. Owusu the treating physician for the
Plaintiff Kerri Frank.
This is the Fifth Motion for Continuance filed in this matter.
Defendant is aware of this continuance and is unopposed as certified herein.
is case was filed on November 19, 2020. The Defendant answered and on
March 12, 2021, provided information on a primary insurance policy that had large limits but still
substantially less than the claimed paid and owed past medical damages for the Plaintiff Kerri
Frank. As alleged, Plaintiff Kerri Frank was injured in the subject motor vehicle accident and she
had a posterior spinal fusion surgery at L5-S1. The surgery was performed by Dr. Anthony
Owusi in July of 2019.
5. In July of 2022, Plaintiff Kerri Frank had a follow up appointment with Dr.
Owusu due to continuing pain issues with her back. Dr. Owusu diagnosed her with adjacent
segment disease at the L4/L5 level. Doctor Owusu recommended steroid injections and believed
Plaintiff Kerri Frank would need to undergo another lumbar fusion surgery.
6. On December 13, 2022, the parties filed an Agreed Motion for Continuance
which was denied by the Court on December 14, 2022.
7. On December 15, 2022, the parties filed an Agreed Motion to Reconsider Motion
for Continuance because Plaintiff was still treating and the parties had scheduled a mediation
with Chris Volf for January 5, 2023 starting at 1:00 PM.
8. However, after the Agreed Motion to Reconsider was filed the mediator informed
the parties that he had overbooked mediation for January 5th but offered to mediate the case on
January 2, 2023 at 1:30 PM. The parties agreed and mediation was rescheduled for January 2nd.
9. On December 21, 2022, the Court denied the Agreed Motion to Reconsider
Motion for Continuance.
10. Also on December 21, 2022, the undersigned was informed by Counsel for the
Defendant that the insurer had just disclosed an umbrella policy for the Defendant which
significantly increased potential coverage for the claims made the basis of this lawsuit. The
declaration page for the umbrella coverage was forwarded to the undersigned the same day.
2
11. Counsel for Plaintiffs immediately attempted to contact Dr. Owusu to provide a
narrative that could be used at the mediation relating to his treatment of the Plaintiff Kerri Frank.
Dr. Owusu was on vacation for the Christmas holiday but agreed to provide the narrative before
the mediation.
12. On January 2, 2023, Counsel for the Plaintiffs received the narrative at 6:00 AM.
The narrative was forwarded to Counsel for the Defendant upon receipt and the parties
participated in the mediation. The parties did settle the claims for the minor Plaintiff but not the
claims for Plaintiffs Kerri Frank or Chad Frank. The parties and the mediator are continuing to
engage in negotiations for a potential resolution of the remaining claims.
13. On January 3, 2023, Counsel for Plaintiff reached out to Dr. Owusu to provide an
update on the case and to procure his testimony for trial. On January 4, 2023, Dr. Owusu
informed Counsel for Plaintiff that for next week, due to just coming back from his holiday
vacation and his existing schedule and appointments, he could be available for a deposition on
Thursday, January 12, 2023 sometime after 3:00 PM or a Monday after 5 PM thereafter.
14. The testimony of Dr. Owusu is material to the case. He is an Orthopedic Spine
Surgeon and he has practice located at 200 Valley Wood Drive, Ste 300, Woodlands, Texas
77380. Dr. Owusu is the treating physician for Plaintiff Kerri Frank and will be able to provide
testimony including but not limited to causation, and past and future treatment, care and medical
expenses for Plaintiff Kerri Frank. Under the circumstances, said testimony cannot be procured
from any other source. Additionally, given the short time fuse related to the disclosure of the
additional insurance coverage applicable and the timing of the holiday(s) Counsel for Plaintiff
has used due diligence to procure the testimony of Dr. Owusu.
3
15. In addition, Defendant has filed motions to strike Dr. Owusu’s testimony
concerning future treatment, which Defendant contends is a change from his causation opinion,
and a motion to strike additional newly disclosed information related to continuing treatment.
Plaintiffs oppose these motions by Defendant.
16. This continuance is not sought for purposes of delay, but so that justice may be
done and is precipitated by the last-minute notice of the additional insurance available for the
subject claims.
17. Plaintiffs respectfully request that the Court issue a continuance to allow the parties
to continue with this discovery and for Defendant’s experts to be able to respond to the new
information.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court grant their
Unopposed Motion for Continuance and for such other and further relief to which they may be
justly entitled.
Respectfully Submitted,
WALDRON & SCHNEIDER, PLLC
By: /s/ Mark A. Rubal
MARK A. RUBAL
State Bar No. 17360325
mrubal@ws-law.com
15150 Middlebrook Drive
Houston, Texas 77058
(281) 488-4438 – Telephone
(281) 488-4597 – Facsimile
ATTORNEY FOR PLAINTIFFS
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served
on all counsel of record on this 5th day of January 2023.
Via ECF Notification
Dale M. “Rett” Holidy
Blanca R. Lee
Germer, PLLC
America Tower
2929 Allen Parkway, Suite 2900
Houston, Texas 77019
/s/ Mark A. Rubal
MARK A. RUBAL
CERTIFICATE OF CONFERENCE
I further hereby certify that I have discussed this Motion with Dale “Rett” Holidy and he
is unopposed to the Motion.
/s/ Mark A. Rubal
MARK A. RUBAL
5
CAUSE NO. 20-11-14219
CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT §
FRIEND FOR THEIR MINOR CHILD, §
ROWAN FRANK § MONTGOMERY COUNTY, TEXAS
§
VS. §
§
AMBER TAWSE § 284TH JUDICIAL DISTRICT
PLAINTIFFS’ CERTIFICATION
I certify to the court that my clients are aware of and agree to the requested continuance.
Respectfully submitted,
WALDRON & SCHNEIDER, PLLC
By: /s/ Mark A. Rubal
MARK A. RUBAL
State Bar No. 17360325
mrubal@ws-law.com
15150 Middlebrook Drive
Houston, Texas 77058
(281) 488-4438 – Telephone
(281) 488-4597 – Facsimile
ATTORNEY FOR PLAINTIFFS
6
CAUSE NO. 20-11-14219
CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT §
FRIEND FOR THEIR MINOR CHILD, §
ROWAN FRANK § MONTGOMERY COUNTY, TEXAS
§
VS. §
§
AMBER TAWSE § 284TH JUDICIAL DISTRICT
DEFENDANT’S CERTIFICATION
I certify to the court that my client is aware of and agrees to the requested continuance.
Respectfully submitted,
GERMER PLLC
By: /s/ Rett Holidy
DALE M. “RETT” HOLIDY
State Bar No. 00792937
holidyefile@germer.com
BLANCA RAMOS-LEE
State Bar No. 24056410
blee@germer.com
America Tower
2929 Allen Parkway, Suite 2900
Houston, Texas 77019
(713) 650-1313 - Telephone
(713) 739-7420 - Facsimile
ATTORNEYS FOR DEFENDANT
7
Preview
CAUSE NO. 20-11-14219 CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT § FRIEND FOR THEIR MINOR CHILD, § ROWAN FRANK MONTGOMERY COUNTY, TEXAS VS. AMBER TAWSE JUDICIAL DISTRICT UNOPPOSED MOTION FOR CONTINUANCE TO BE HONORABLE JUDGE OF THIS COURT: Plaintiffs, CHAD FRANK AND KERRI FRANK, INDIVIDUALLY AND AS NEXT FRIEND FOR THEIR MINOR CHILD, ROWAN FRANK, file this Unopposed Motion for Continuance pursuant to Rule 251 and 252 of the Texas Rules of Civil Procedure and would show unto the Court the following: This cause is assigned to trial on January 9, 2023. Plaintiffs move for a continuance because of recently disclosed umbrella insurance coverage for the Defendant and the resulting need for material testimony of Dr. Owusu the treating physician for the Plaintiff Kerri Frank. This is the Fifth Motion for Continuance filed in this matter. Defendant is aware of this continuance and is unopposed as certified herein. is case was filed on November 19, 2020. The Defendant answered and on March 12, 2021, provided information on a primary insurance policy that had large limits but still substantially less than the claimed paid and owed past medical damages for the Plaintiff Kerri Frank. As alleged, Plaintiff Kerri Frank was injured in the subject motor vehicle accident and she had a posterior spinal fusion surgery at L5-S1. The surgery was performed by Dr. Anthony Owusi in July of 2019. 5. In July of 2022, Plaintiff Kerri Frank had a follow up appointment with Dr. Owusu due to continuing pain issues with her back. Dr. Owusu diagnosed her with adjacent segment disease at the L4/L5 level. Doctor Owusu recommended steroid injections and believed Plaintiff Kerri Frank would need to undergo another lumbar fusion surgery. 6. On December 13, 2022, the parties filed an Agreed Motion for Continuance which was denied by the Court on December 14, 2022. 7. On December 15, 2022, the parties filed an Agreed Motion to Reconsider Motion for Continuance because Plaintiff was still treating and the parties had scheduled a mediation with Chris Volf for January 5, 2023 starting at 1:00 PM. 8. However, after the Agreed Motion to Reconsider was filed the mediator informed the parties that he had overbooked mediation for January 5th but offered to mediate the case on January 2, 2023 at 1:30 PM. The parties agreed and mediation was rescheduled for January 2nd. 9. On December 21, 2022, the Court denied the Agreed Motion to Reconsider Motion for Continuance. 10. Also on December 21, 2022, the undersigned was informed by Counsel for the Defendant that the insurer had just disclosed an umbrella policy for the Defendant which significantly increased potential coverage for the claims made the basis of this lawsuit. The declaration page for the umbrella coverage was forwarded to the undersigned the same day. 2 11. Counsel for Plaintiffs immediately attempted to contact Dr. Owusu to provide a narrative that could be used at the mediation relating to his treatment of the Plaintiff Kerri Frank. Dr. Owusu was on vacation for the Christmas holiday but agreed to provide the narrative before the mediation. 12. On January 2, 2023, Counsel for the Plaintiffs received the narrative at 6:00 AM. The narrative was forwarded to Counsel for the Defendant upon receipt and the parties participated in the mediation. The parties did settle the claims for the minor Plaintiff but not the claims for Plaintiffs Kerri Frank or Chad Frank. The parties and the mediator are continuing to engage in negotiations for a potential resolution of the remaining claims. 13. On January 3, 2023, Counsel for Plaintiff reached out to Dr. Owusu to provide an update on the case and to procure his testimony for trial. On January 4, 2023, Dr. Owusu informed Counsel for Plaintiff that for next week, due to just coming back from his holiday vacation and his existing schedule and appointments, he could be available for a deposition on Thursday, January 12, 2023 sometime after 3:00 PM or a Monday after 5 PM thereafter. 14. The testimony of Dr. Owusu is material to the case. He is an Orthopedic Spine Surgeon and he has practice located at 200 Valley Wood Drive, Ste 300, Woodlands, Texas 77380. Dr. Owusu is the treating physician for Plaintiff Kerri Frank and will be able to provide testimony including but not limited to causation, and past and future treatment, care and medical expenses for Plaintiff Kerri Frank. Under the circumstances, said testimony cannot be procured from any other source. Additionally, given the short time fuse related to the disclosure of the additional insurance coverage applicable and the timing of the holiday(s) Counsel for Plaintiff has used due diligence to procure the testimony of Dr. Owusu. 3 15. In addition, Defendant has filed motions to strike Dr. Owusu’s testimony concerning future treatment, which Defendant contends is a change from his causation opinion, and a motion to strike additional newly disclosed information related to continuing treatment. Plaintiffs oppose these motions by Defendant. 16. This continuance is not sought for purposes of delay, but so that justice may be done and is precipitated by the last-minute notice of the additional insurance available for the subject claims. 17. Plaintiffs respectfully request that the Court issue a continuance to allow the parties to continue with this discovery and for Defendant’s experts to be able to respond to the new information. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court grant their Unopposed Motion for Continuance and for such other and further relief to which they may be justly entitled. Respectfully Submitted, WALDRON & SCHNEIDER, PLLC By: /s/ Mark A. Rubal MARK A. RUBAL State Bar No. 17360325 mrubal@ws-law.com 15150 Middlebrook Drive Houston, Texas 77058 (281) 488-4438 – Telephone (281) 488-4597 – Facsimile ATTORNEY FOR PLAINTIFFS 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served on all counsel of record on this 5th day of January 2023. Via ECF Notification Dale M. “Rett” Holidy Blanca R. Lee Germer, PLLC America Tower 2929 Allen Parkway, Suite 2900 Houston, Texas 77019 /s/ Mark A. Rubal MARK A. RUBAL CERTIFICATE OF CONFERENCE I further hereby certify that I have discussed this Motion with Dale “Rett” Holidy and he is unopposed to the Motion. /s/ Mark A. Rubal MARK A. RUBAL 5 CAUSE NO. 20-11-14219 CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT § FRIEND FOR THEIR MINOR CHILD, § ROWAN FRANK § MONTGOMERY COUNTY, TEXAS § VS. § § AMBER TAWSE § 284TH JUDICIAL DISTRICT PLAINTIFFS’ CERTIFICATION I certify to the court that my clients are aware of and agree to the requested continuance. Respectfully submitted, WALDRON & SCHNEIDER, PLLC By: /s/ Mark A. Rubal MARK A. RUBAL State Bar No. 17360325 mrubal@ws-law.com 15150 Middlebrook Drive Houston, Texas 77058 (281) 488-4438 – Telephone (281) 488-4597 – Facsimile ATTORNEY FOR PLAINTIFFS 6 CAUSE NO. 20-11-14219 CHAD FRANK AND KERRI FRANK, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT § FRIEND FOR THEIR MINOR CHILD, § ROWAN FRANK § MONTGOMERY COUNTY, TEXAS § VS. § § AMBER TAWSE § 284TH JUDICIAL DISTRICT DEFENDANT’S CERTIFICATION I certify to the court that my client is aware of and agrees to the requested continuance. Respectfully submitted, GERMER PLLC By: /s/ Rett Holidy DALE M. “RETT” HOLIDY State Bar No. 00792937 holidyefile@germer.com BLANCA RAMOS-LEE State Bar No. 24056410 blee@germer.com America Tower 2929 Allen Parkway, Suite 2900 Houston, Texas 77019 (713) 650-1313 - Telephone (713) 739-7420 - Facsimile ATTORNEYS FOR DEFENDANT 7